THE MEDICAL PRACTITIONER & the ACT MEDICAL BOARD (Occupational Discipline) - [2010] ACAT 63

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

THE MEDICAL PRACTITIONER and THE ACT MEDICAL BOARD (Occupational Discipline) [2010] ACAT 63

AA 09/25
Catchwords: OCCUPATIONAL DISCIPLINE – HEALTH PROFESSIONAL - professional misconduct - sexual misconduct by medical practitioner – public safety at risk – doctor-patient relationship - exploitation of relationship is objectively judged – violation of public’s trust – the nature of appeal – the effect of discussing the practitioners’ responsibilities with the patient – the original Tribunal’s silence about Jones v Dunkel inference
List of legislation: ACT Civil and Administrative Tribunal Act 2008, ss.65, 66, 79, and 82
Health Professionals Act 2004, ss.41, 42 and 43
Health Professionals Regulation 2004, Reg. 144
Health Professionals (ACT Medical Board Standards) Approval 2006 (No. 1), Standards Statement 5 (“Medical Practitioners and Sexual Misconduct Standard”)

Case law:Attorney-General for the State of New South Wales v X
[2000] NSWCA 199
Australian Coal & Shale Employees Federation v Commonwealth (1953) 94 CLR 621
Clyne v N.S.W. Bar Association (1960) 104 CLR 186
Coal and Allied Operations Pty Ltd v Australian Industrial
Relations Commission (2000) 203 CLR 194
Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389
De Gregory v General Medical Council [1961] AC 957
Eastman v The Queen (2000) 203 CLR 1
Health Care Complaints Commission v Fairbrother 18 December 2008, Case 40020 of 2007
In the matter of Dr Gary Beckhurst (Unreported decision of the Medical Board of Western Australia, 18 September 2001
Jones v Dunkel (1958) 101 CLR 298
Law Society of NSW v Foreman (1994) NSWLR 408
Medical Board of Western Australia and Smith [2006] WASAT 213
Mickelberg v The Queen (1989) 167 CLR 259
Lai-Ha v McCusker [2000] FCA 1173

New South Wales Bar Association v Evatt (1968) 117 CLR 177
Peeke v The Medical Board of Victoria, , Supreme Court of Victoria Practice Court 19 January 1994, unreported, BC 9400966
Re A Medical Practitioner [1995] 2 Qd R 154
Richter v Walton (NSW Court of Appeal, 15 July 1993, unreported – CA 40309/93)
Re A Medical Practitioner [1995] 2 Qd R 154
Rudder v ACT Planning and Land Authority [2010] ACAT 24
Scales v Commissioner of Policy for the Australian Capital
Territory (1974) 3 ACTR 20

Tribunal: Professor. P. Spender, Presidential Member

Dr F. Long, Member
Dr T. Faunce, Member

Date of Orders: 17 September 2010

Date of Reasons for Decision: 17 September 2010

AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) AA 09/25

BETWEEN:

THE APPELLANT
Applicant

AND:

THE ACT MEDICAL BOARD
Respondent

Tribunal: Professor. P. Spender, Presidential Member

Dr F. Long, Member
Dr T. Faunce, Member

DATE: 17 September 2010

ORDER

The appeal is dismissed.

………………………………..
Professor P. Spender

Presidential Member

REASONS FOR DECISION

This is an appeal from a decision made by the ACT Civil and Administrative Tribunal ("the Original Tribunal ") to suspend the Appellant from practice as a medical practitioner for a period of 12 months and until the Appellant has attended and completed a course in Sexual Misconduct Assessment as directed by the ACT Medical Board ("the Medical Board”) through the Sexual Misconduct Assessment Service of the Royal Melbourne Hospital in Victoria. The Original Tribunal directed that the order for suspension take effect one month after the delivery of the reasons for decision. The Original Tribunal explained that the latter order was made to allow the Appellant time to advise his patients of the need to find an alternative practitioner and to make arrangements to hand over medical records.[1]
[1] ACT Medical Board & The Medical Practitioner [2009] ACAT 34
(‘Original Decision’) at paragraph 97.
The original proceedings commenced with a complaint filed with the ACT Human Rights Commission on 8 August 2007 by a woman ("the Complainant") which was referred to the Medical Board. The Complainant had experienced traumatic events at her workplace in March 2002 and first saw the Appellant shortly afterwards for treatment of post traumatic stress disorder ("PTSD"). In September 2003 the Complainant gave birth to a child but shortly thereafter her relationship with the child's father broke down. At this time she was financially dependent on workers compensation payments related to her PTSD. The Appellant continued treating the Complainant until a relationship between them developed. The Appellant sought advice from a lawyer about his professional obligations and was advised against a relationship. The Appellant nevertheless proceeded with the relationship and discussed the issue of his professional responsibility with the Complainant and gave her relevant information about these responsibilities. Sexual interaction took place approximately 2 weeks after this discussion and on the same day as documentation was given to the Complainant about the Appellant's professional responsibilities. One day later, on 5 October 2006, sexual intercourse occurred. The relationship between the Appellant and the Complainant broke down in March 2007.
The Original Tribunal was comfortably satisfied[2] that the evidence supported each of the particulars necessary to constitute a ground for occupational discipline against the Appellant under sections 41 and 43 of the Health Professionals Act 2004 ("the HP Act"). The Original Tribunal particularly found that the Appellant had breached clause 5 of the Medical Practitioners and Sexual Misconduct standard in that sexual violation had occurred (in particular sexual intercourse) and he had breached clauses 3 and 5 of the standards statement Code of Conduct in that he had both abused his position as a doctor, and established an improper personal relationship with the patient. The relevant standards are extracted below.
[2] Paragraphs 78 – 88 Original Decision
In considering what occupational discipline to apply, the Original Tribunal considered the matters in section 65(3) of the ACT Civil and Administrative Tribunal Act 2008 ("the ACAT Act"). In applying the statutory criteria under section 65(3), the Original Tribunal found the following:
(a) the Appellant, far from seeking to avoid the action that was the ground for occupational discipline, had undertaken it deliberately after receiving advice it would be a breach of the standards statement (s65(3)(a))
(b) no occupational discipline had previously been made against the Appellant for a similar act (s65(3)(b)),
(c) the only steps taken by the Appellant to mitigate had been an apology which sat uneasily with attacks on the Complainant’s credibility (s65(3)(c)); and
(d) the sexual violation had had a serious and ongoing effect on the Complainant and was affecting her recovery (s65(3)(d)).
In terms of the likelihood of recurrence, the Original Tribunal found the Appellant displayed no real insight into the gravity of the breach of the standards statement and appeared only concerned about the effect on himself and that his expressions of regret and concern for the Complainant (such as they were) were not in the forefront of his mind (s65(3)(e)).
When considering, as it was required to do so under section 65(3)(f) of the ACAT Act, the Medical Board’s application for a 12 month suspension and a requirement that the Appellant attend a sexual misconduct assessment course, the Original Tribunal found “there is a need for him to develop a much greater appreciation of the importance of avoiding boundary violations, and of the effect that these violations can have on patients”.[3]
[3] Paragraph 77 Original Decision
The application for appeal which initiated this hearing sought to set aside the orders of the Original Tribunal and replace them with the following orders:
(a) the Appellant be reprimanded
(b) the Appellant attend and cooperate with support and counselling as directed and provided by the Medical Board
(c) the Appellant not provide health services to any new patients except if the patient is a resident in a nursing home or establishment for elderly people.

Jurisdiction - Generally

The jurisdiction of the Original Tribunal and the present Tribunal ("the Appeal Tribunal") is derived from sections 41 and 42 of the HP Act. These provisions state as follows:
41 Grounds for occupational discipline
(1)each of the following is a ground for occupational discipline in relation to a health professional:
(a) the health professional has contravened, or is contravening, a standard of practice that applies to the health professional;
(b)the health professional has put, or is putting, public safety at risk;
(c)the health professional does not satisfy the suitability to practise requirements.
42 Application to ACAT for occupational discipline
If the health profession board believes on reasonable grounds that a ground for occupational discipline exists in relation to a health professional, the board may apply to the ACAT for an occupational discipline order in relation to the health professional.
If the ACAT is considering a suspension or cancellation of a health professional’s registration, section 43 HP Act also applies, as follows:
43 Considerations before making occupational discipline orders—
suspension or cancellation of registration
(1) This section applies if the ACAT is considering whether to suspend or cancel the health professional’s registration.
(2) The ACAT must consider the following:
(a) whether the health professional has contravened a standard of practice that applied to the health professional;
(b) whether the health professional has put, or is putting, public safety at risk.
Regulation 144 of the Health Professionals Regulation 2004 ("the HP Regulation") also applies, together with the notifiable instrument NI2006-175, entitled Health Professionals (ACT Medical Board Standards Statements) Approval 2006 (No. 1). Included in the latter instrument are Standards Statement 1 entitled “Code of Conduct” and Standards Statement 5 entitled "Medical Practitioners and Sexual Misconduct" ("the Sexual Misconduct Standards Statement").
The relevant portions of the Sexual Misconduct Standards Statement are reproduced below:

ACT MEDICAL BOARD
STANDARDS STATEMENT
MEDICAL PRACTITIONERS AND SEXUAL MISCONDUCT
General
(1) This paper aims to ensure medical practitioners are aware of their responsibilities in instances where there might be sexual attraction between a practitioner and his or her patient, including former patients.

Expectations of the Public
(2) It is the responsibility of the practitioner to behave responsibly at all times and to maintain professional boundaries with patients. Any exploitation of the relationship between the patient and the practitioner must be considered as a violation of the public’s trust.

Definitions
(3) Sexual misconduct is behaviour that exploits the physician-patient relationship in a sexual way. This behaviour is non-diagnostic and non-therapeutic, may be verbal or physical, and may include expressions of thoughts and feelings or gestures that are sexual or that may be construed by a patient as sexual.
(4)There are primarily two levels of sexual misconduct: sexual violation and sexual impropriety. Practitioners should note that expectations of patients have altered during recent years and practices that were acceptable at the time of their training may need to be reviewed.
(5) Sexual violation may include practitioner-patient sex, whether or not initiated by the patient, and engaging in any conduct with a patient that is sexual or may be reasonably interpreted as sexual, including but not limited to:
a.sexual intercourse, genital to genital contact;...

The Tribunal must also have regard to the provisions of the ACAT Act. In particular, sections 65 and 66 of the ACAT Act set out the matters the Tribunal is directed to have regard to before making an occupational discipline order.
The Appeal Tribunal sought submissions from the parties regarding the interpretation of the terms "public safety" in section 43 of the HP Act and the meaning of "exploitation" and "exploit" as they appear in the Sexual Misconduct Standards Statement. Dealing with the latter issue first, the Appellant submitted that, even in circumstances where the Sexual Misconduct Standards Statement has defined sexual violation as including practitioner-patient sexual intercourse, it does not automatically follow that there is the required degree of "exploitation". The Appellant further submitted that in order for a Tribunal to find exploitation within the Sexual Misconduct Standards statement sufficient to justify suspension, it needs to be proved that the practitioner intentionally took advantage of his or her power over a patient. The Appellant conceded that the case law might be interpreted as deeming or implying exploitation if a practitioner meets a person as a patient and then has a relationship. However this should not automatically mean a suspension.
When the Tribunal is contemplating a suspension, it must consider the matters in section 43 of the HP Act. A consideration of section 43(2)(a) is uncontroversial as the Appellant has admitted that clause 5 of the Sexual Misconduct Standards Statement has been breached due to sexual intercourse having occurred. But the question is whether the health professional has put, or is putting, public safety at risk, pursuant to section 43(2)(b) of the HP Act. The Original Tribunal[4] considered that the Appellant did put the safety of the Complainant at risk. The Original Tribunal noted the evidence of the psychiatrist treating the Complainant that the relationship had significantly damaged the mental health of the Complainant and her recovery from the condition from which she suffered. In the Original Tribunal's view, it is not necessary that the public safety of more than one person be put at risk and the Original Tribunal was satisfied that the conduct of the Appellant put at risk a member of the public, the Complainant, who sought his services.[5]
[4] Paragraph 70 Original Decision
[5] Paragraph 70 Original Decision
On appeal, the Appellant argued that it is not open to the Tribunal to find that one patient is the public. Conversely, if two patients are treated the same way there could be a danger to the public safety. In that case, section 43 of the HP Act would catch a practitioner who re-offends for breach of the same standard.
It is clear from the case law that medical practitioners engaging in sexual intercourse with current and former patients will generally be found to have engaged in professional misconduct.[6] It is important to consider this conduct in the light of the requirement under section 43 of the HP Act for the Tribunal to consider whether the health professional has put, or is putting, public safety at risk. The case law demonstrates an approach to public safety that is based upon the public trust and not just the trust demonstrated or accorded to aggregated individuals, as argued by the Appellant. The cases emphasise that conduct which threatens the proper therapeutic relationship between a doctor and a patient puts at risk the effective healing of patients.[7] For example, in Richter v Walton[8] the joint judgment of Kirby P and O’Keefe AJA a made the following comments:
All patients are entitled to approach their medical practitioners secure in the belief that their ills will be treated to the best of the skill and ability of their medical practitioners and without any interference of an improper kind with their persons or in relation to their affairs. Respecting the vulnerability of those who attend upon them when in need is fundamental to the practice of medicine.[9]
[6] See for example, De Gregory v General Medical Council [1961] AC 957; Re A Medical Practitioner [1995] 2 Qd R 154; Medical board of Western Australia and Smith [2006] WASAT 213; In the matter of Dr Gary Beckhurst (Unreported decision of the medical Board of Western Australia, 18 September 2001 at [46]-[52] & [54].
[7]Medical Board of Western Australia and Smith [2006] WASAT 213Smith para 115
[8] Richter v Walton, NSW Court of Appeal, 15 July 1993, unreported – CA 40309/93
[9] Richter v Walton, NSW Court of Appeal, 15 July 1993, unreported – CA 40309/93, page 2
Priestly JA also stated:
The doctor’s power in regards to the patient in such cases is also very great. I do not mean power in an abstract way but as a matter of fact; the extent of the power will vary according to the temperament of the patient, but the doctor with some patients and for limited periods, because of the relationship in which they are temporarily placed, is in a position to do whatever the doctor wants with the body of the patient. This is one of the reasons why doctors are subject to correspondingly great obligations and are expected to maintain very high standards; all this being very much in the public interest.[10]
[10]Richter v Walton, NSW Court of Appeal, 15 July 1993, unreported – CA 40309/93), page 9
Dowsett J in Re A Medical Practitioner[11] stated that, from the point of view of the profession as a whole and from the public viewpoint, it is as important that the appearance of propriety be maintained in each doctor and patient relationship as that that such a propriety actually exist. His Honour expressed the gravamen of the misconduct in a wide terms as a "breach of trust, misuse of power and exploitation of vulnerability."[12]
[11] Re A Medical Practitioner [1995] 2 Qd R 154 at 163
[12] Re A Medical Practitioner [1995] 2 Qd R 154 at 164
In interpreting the meaning of the word "public safety" in section 43 of the HP Act, it is also relevant to consider the nature of the jurisdiction in the present case. The jurisdiction is protective and designed to ensure that members of the public are not exposed to a person who is unsuited to practice. Hence, courts have held in cases such as Richter v Walton that the power to disbar a professional is designed to protect those who require protection rather than constituting punishment.[13]
[13] Clyne v N.S.W. Bar Association (1960) 104 CLR 186 at 201-202; New South
The issue of public safety is summed up clearly by Dowsett J in Re a Medical Practitioner as follows:
The continued delivery of high quality health care by the profession can only be ensured by the maintenance of confidence in care-givers on the part of patients and patients’ families. Thus in proceedings such as this, I am concerned with the duty of the practitioner to the profession and to the public as a whole as well as to the particular patient. That duty proscribes doing anything likely to undermine public confidence in the individual practitioner or in the profession.[14]
[14] Re A Medical Practitioner [1995] 2 Qd R 154 at 165
The Appellant further submitted that section 43 of the HP Act permits a distinction to be made between the deemed breach of "public trust" in the Sexual Misconduct Standards Statement and the reference to "public safety" in section 43(2)(b) of the HP Act. The Appeal Tribunal does not accept this submission and considers that the statement in the Sexual Misconduct Standards Statement that "any exploitation of the relationship between the patient and the practitioner must be considered as a violation of the public's trust" accords with the above-mentioned interpretation of "public safety".
The Appeal Tribunal considers that, in determining whether exploitation has occurred, the conduct in question must be objectively judged. Apart from placing the responsibility upon the medical practitioner to behave responsibly at all times and to maintain professional boundaries with patients, the Sexual Misconduct Standards Statement does not contemplate the subjective view of the practitioner except perhaps to the extent that the practitioner must know the relevant facts and know what he or she was doing.[15] The Sexual Misconduct Standards Statement is plainly drafted and clearly states in clause 5 that sexual violation may include practitioner - patient sex, whether or not initiated by the patient, and engaging in any conduct with a patient that is sexual or what may be reasonably interpreted as sexual, including genital to genital contact.
[15] Respondent's Submissions dated 23 March 2010 at paragraph 18

At all times, the Appellant knew what he was doing and the fact that he did not consider that his actions to be exploitative of the relationship with the complainant is no answer. Similarly, arguments that portray the Complainant as the stronger party, or suggest that patients generally, and the Complainant in particular, desired a relationship are irrelevant because the focus in the Sexual Misconduct Standards Statement is upon the doctor's responsibility to avoid boundary transgression.

Appellate Jurisdiction

The application for appeal nominated 20 grounds upon which the appeal was based, which included some of the findings of the Original Tribunal and the severity of the order. Some of the grounds of appeal were withdrawn during the hearing. The remaining grounds will be dealt with hereunder.
A party to an original application may, by application, appeal a decision of an original Tribunal on a question of fact or law pursuant to section 79(3) of the ACAT Act. Section 82 of the ACAT Act allows an appeal Tribunal, as it considers appropriate, to deal with an appeal
(a) as new application; or
(b)as a review of or part of the original decision on the application by the Tribunal.
A number of directions were made regarding the conduct of the appeal before the appeal was heard by the Appeal Tribunal. In particular, orders were made on 23 October 2009 which stayed the orders of the Original Tribunal until further order.
On 6 November 2009 orders were made that the Appellant prepare a paginated appeal book which contained:
(i) the application for appeal;
(ii) the orders made by and reasons for decision of the Original Tribunal in the original proceeding;
(iii) the respondent's amended application in the original proceeding;
(iv) transcript of the evidence received by the Original Tribunal in the original proceeding;
(v) a copy of the exhibits received by the Original Tribunal in the original proceeding.

Orders were also made on 6 November 2009 setting dates for the Respondent to file and serve of any request for particulars of the grounds of appeal and for the Appellant to respond to such a request. No request for particulars was made by the Respondent.
Although no express orders were made by the Tribunal that the appeal was being conducted as a review of all or part of the original decision,[16] it is clear that the appeal was not conducted as a new application. Regardless of whether this appeal is characterised as an appeal in the strict sense or an appeal by way of rehearing, it is clear from the orders of 6 November 2009 that no further evidence was admitted in the appeal proceedings. Where an appellate Tribunal is conducting an appeal in the strict sense it cannot receive further evidence[17] and its powers are limited to setting aside the decision under appeal and, if appropriate, substituting a decision that should have been made at first instance.[18]
[16] Pursuant to section 82 of the ACAT Act
[17] See Mickelberg v The Queen (1989) 167 CLR 259; Eastman v The Queen (2000) 203 CLR 1
[18] Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 at 202 -203, citing a Allesch v Maunz (2000) 203 CLR 172
As stated by the High Court in the Coal and Allied Operations Case:[19]
Ordinarily, if there has been no further evidence admitted and if there has been no relevant change in the law ... a court or Tribunal entertaining an appeal by way of rehearing could exercise its appellate powers only if satisfied that there was an error on the part of the primary decision-maker. ... That is because statutory provisions conferring appellate powers, even in the case of an appeal by way of rehearing, are construed on the basis that, unless there is something to indicate … otherwise, the power is to be exercised for the correction of error.
[19] Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 at 203 -204
Given that the orders of 6 November 2009 confined the Appeal Tribunal to the evidence led in the original proceeding, it is clear that this appeal has not been dealt with as a new application under section 82(a) therefore the role of the Appeal Tribunal is limited to addressing any errors in the reasoning of the Original Tribunal.[20]
[20] Lai-Ha v McCusker [2000] FCA 1173 at 463 per Emmett J
As stated above, section 79(2) of the ACAT Act states that an appeal may be made on a question of fact or law. It is has been difficult for the law to find a satisfactory test of universal application to distinguish questions of fact and questions of law.[21] Indeed it has been held that the twin formulations “question of law” and ”question of fact” exhaust the whole sphere of discourse. [22]
[21] Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389 at 394.
[22] Attorney-General for the State of New South Wales v X [2000] NSWCA 199 at 661 per
Where an appellate jurisdiction is exercised in respect of decisions involving discretionary judgment there is:
a strong presumption in favour of the correctness of the decision appealed from, and that decision should therefore be affirmed unless…clearly wrong. A degree of satisfaction sufficient to overcome the strength of the presumption may exist when there has been an error which consists in acting upon a wrong principle, or giving weight to erroneous or irrelevant matters, or failing to give weight or sufficient weight to relevant considerations, or making a mistake as to the facts.[23]
[23] Australian Coal & Shale Employees Federation v Commonwealth (1953) 94 CLR 621 at 627
The Appellant’s task is to convince the Appeal Tribunal that the Original Tribunal made such an error as to allow its order to be varied or reversed. It is not enough that the members of the Appeal Tribunal would themselves have imposed a different occupational order, or that they regard the occupational order as overly severe.[24]
[24] Scanes v Commissioner of Police for the Australian Capital Territory (1974) 3 ACTR 20 at 25-26
At the hearing of the appeal, there was some initial discussion between the parties as to whether this was solely an appeal on severity. It was agreed, however, that some factual matters relied upon and found by the Original Tribunal were in issue in so far as they were raised by the grounds of appeal.

Grounds of Appeal

The Appellant's first ground of appeal was that the Original Tribunal failed to adequately consider the subjective circumstances of the Appellant medical practitioner. It was particularly emphasised that the Original Tribunal should have acknowledged that this was the first complaint against the Appellant. The Original Tribunal did acknowledge this in paragraph 73 of its reasons. The Appeal Tribunal is unable to discover any error of the Original Tribunal on this ground.
The 2nd ground of appeal related to section 66 of the ACAT Act. The Appellant argued that the Original Tribunal failed to properly or at all consider the structure of that provision when it made the order. In particular the Appellant argued that the Original Tribunal "jumped straight down" to suspension rather than considering the other potential orders that may be made under section 66(2) of the ACAT Act. The Appeal Tribunal notes that the Original Tribunal stated in its reasons[25] that it considered that a fine or reprimand was an inappropriate penalty for a serious breach of the Appellant's obligations. The Appeal Tribunal is unable to discover any error of the Original Tribunal on this ground.
[25] Paragraph 94 Original Decision
The first part of the 3rd ground was that the Original Tribunal failed to, or inadequately considered, how the Appellant “explained that he could not have a relationship but the Complainant persisted.”[26] This was similar to the 7^th ground of appeal which maintained that the Original Tribunal was in error “when it incorrectly concluded under s 65(3)(a) of the ACAT Act that the [Appellant] took no reasonable steps to avoid the action that was the ground for occupational discipline.”[27] In particular, the Appellant relied on the facts that he told the Complainant his behaviour was not permitted by professional standards and gave her literature to that effect prior to sexual intercourse taking place, but that she persisted in pursuing the relationship, knowing it was not permitted by the Appellant medical practitioner’s regulating authority. The Appellant further argued this was not a clandestine relationship, there was no exploitation, that it would have all been very different if the patient was incapacitated, that the relevant regulatory authorities should “get out of the dark ages” and that “doctors were no longer like gods.”
[26] Appeal Book page 1
[27] Appeal Book page 2
The Tribunal is unable to discover any error of the Original Tribunal on this 3rd or the related 7^th ground. The Appellant appears to be arguing here that the Original Tribunal was in error in not imposing a responsibility upon the patient Complainant to make sure that the Appellant medical practitioner complied with his professional responsibilities. This is unacceptable reasoning. It is doctors not patients who have responsibilities under the professional practice standards. This is made clear from the wording of the Sexual Misconduct Standards Statement, in particular clause 5 which states that sexual violation may include practitioner-patient sex, whether or not initiated by the patient (emphasis added).
The Appellant relied upon the case of Peeke v The Medical Board of Victoria,[28] an ex tempore decision of the Marks J of the Supreme Court of Victoria in an appeal against a penalty imposed by the Medical Board of Victoria (“the Victorian Medical Board”). Marks J considered in that particular case that the doctor had not taken advantage of a patient in a subservient position in order to exploit her. It was found in that case that the patient admittedly "made an offer of her body"[29] and that she had made a complaint to the Victorian Medical Board as an act of revenge for the medical practitioner’s termination of their relationship.[30] Importantly, Marks J in Peeke’s case relied upon the findings of the Victorian Medical Board there was no evidence that the complainant suffered any adverse physical or psychological consequences as a result of the association. Peeke’s case is distinguishable from the present case because of the finding in that case that the complainant had suffered no adverse physical or psychological effects from the relationship.
[28] Unreported, Supreme Court of Victoria Practice Court 19 January 1994, BC 9400966
[29] Peeke v The Medical Board of Victoria at page 3
[30] Peeke v The Medical Board of Victoria at page 2
In any event, the approach taken in Peeke’s case differs significantly from the approach taken by courts and disciplinary tribunals in the case law discussed above. Generally speaking, the case law indicates that even in circumstances where a patient has invited sexual contact, once a doctor-patient relationship is initiated by the usual words, deeds and documentation of the doctor, sexual interaction would constitute a boundary violation and the doctor’s conduct could well still be held to so endanger public protection and safety that a suspension was justified. This is because the jurisdiction of the Tribunal (as the Original Tribunal pointed out[31]) has a strong deterrence element and is designed to ensure the public and professional colleagues can place their confidence in the practitioner.[32] The medical practitioner in such a case cannot concoct an excuse for a sexual violation of patient and public trust by pointing to the motives of the patient. This is reflected in the comments of Kirby P and O’Keefe AJA in Richter v Walton quoted above and in Dowsett J’s comments in Re A Medical Practitioner as follows:
There can be no question of “blame” attaching to the patient who owes no relevant duty to the doctor, the profession or the public. The [patient] was in a position recognized as being vulnerable. That she should have succumbed to that vulnerability is not a matter for criticism.[33]
[31] Paragraph 93 Original Decision
[32] Health Care Complaints Commission v Fairbrother 18 December 2008, Case 40020 of 2007; Law Society of NSW v Foreman (1994) 34 NSWLR 408 at 441, 471.
[33] Re A Medical Practitioner (1994) 2 Qd R 154 at 165
Further, the Original Tribunal was justified in drawing some adverse inferences against the Appellant’s discussion of professional responsibilities with, and provision of documents to, the Complainant patient because there was so little time given to the Complainant to independently consider that information or seek separate advice about it. There was no substantial cooling off period involving no professional contact and establishment of alternate care for the patient, which is critical in permitting such a relationship ethically and legally.
The 4^th ground of appeal was that the Original Tribunal erred in not considering or giving proper weight to the facts that the Appellant medical practitioner was overworked, lacked support of the Medical Board and was vulnerable to the advances of the Complainant, who seemed to consider he was her patient. The Tribunal is unable to discover any error of the Original Tribunal on this ground. Being overworked is not by itself exculpatory of the relevant professional practice standards.
It was not established that the Appellant had ever sought the assistance of the Medical Board or any of the doctors help services that were shown to have existed at that time. The attempt to portray himself as the victim of this patient, given her history of illness and social circumstances in fact suggests that he lacked insight into the gravity of his breach of the professional standards.
The 5th ground was that the Original Tribunal erred in considering evidence from the Complainant's treating doctors that she was ill when the Appellant had a relationship with her. The Appellant asserts that the evidence was that the Complainant was not vulnerable and was independent in her thoughts when the relationship developed, therefore to say that a breach is severe because of the views of Complainant's current treating doctors is unfair to the Appellant in deciding what order to make against him. The Appeal Tribunal is unable to discover any error of the Original Tribunal on this ground. The Appellant persisted in arguing that this patient was “normal” and “not vulnerable,” was “strong willed”. These arguments are a variation of the arguments made on the 4th ground and must similarly be rejected for the reasoning given above.
The Appellant submitted in ground 6 that the Original Tribunal made an error in concluding that suspension was permitted because the Appellant, by his conduct with the Complainant, put public safety at risk. The Appeal Tribunal refers to its discussion above concerning the interpretation of section 43 of the HP Act and further notes that the Original Tribunal’s statement implying that consideration of the circumstances of one patient may constitute consideration of public safety[34] must be read in the context of the whole of the reasons of the Original Tribunal, which demonstrate an appropriately wide view of how the Appellant’s breach of the relevant standards might impact on public safety.
[34] Paragraph 70 Original Decision
The 7^th ground has been dealt with previously and the 8th ground was not pressed.
The 9^th ground chiefly related to the inferences that could be drawn from the fact that the Medical Board failed to call a psychologist who had seen both the Appellant and Complainant. In this ground of appeal, the Appellant stated that the Original Tribunal failed to consider the evidence that the psychologist told the Complainant and the Appellant together in October 2006 that he thought the couple would make a good pair. This evidence was given by the Complainant in the original proceedings. The Appellant argued that Original Tribunal failed to address the Jones v Dunkel[35] inference when statements prepared and filed in the original proceedings by the same psychologist were withdrawn by the Medical Board after the original hearing commenced.
[35] (1958) 101 CLR 298
The Original Tribunal did not expressly consider the submission that a Jones v Dunkel inference should be drawn from the decision of the Medical Board not to put the psychologist’s statements into evidence. Even if the Appeal Tribunal found that the Original Tribunal should have expressly referred to the Jones v Dunkel inference, there is no indication that the Original Tribunal needed to rely upon a Jones v Dunkel inference of the type suggested by the Appellant and no indication that such an inference would have changed the findings of the Original Tribunal. The absence of an express statement regarding the inference does not constitute a material error or otherwise constitute an error causing a miscarriage of justice.[36]
[36] Rudder v ACT Planning and Land Authority & Anor [2010] ACAT 24 at para [20]
The 10^th ground was not pressed.
The 11^th ground was that the Original Tribunal erred when considering section 65(3)(e) of the ACAT Act in that it incorrectly concluded that the Appellant has no real insight into the gravity of the breach of the “standards statement”[37] and further failed to explain what “standards statement” it was referring to.
[37] Paragraph 76 Original Decision
Several submissions made in the appeal proceedings appeared to support the Original Tribunal’s findings that the Appellant lacked insight. First, the Appellant maintained that he was prepared to do a general “ethics” course at Monash University but not the more specific course recommended in the orders by the Original Tribunal. Second, when the relationship did end (having known it was contrary to his professional standards) the Appellant sought no independent professional advice as to what he should do. Third, the Original Tribunal accepted evidence from the Complainant that after the break up the Appellant asked her to keep the existence of their relationship secret from her future doctors. Fourth, his arguments that the Complainant wasn’t vulnerable, wasn’t ill, was “normal” was in fact his “doctor” clearly indicate that he lacks the required insight. In relation to the latter consideration, the Appeal Tribunal repeats its conclusion on the 4th ground of appeal that the attempt by the Appellant to portray himself as a victim of the Complainant suggests that he lacked insight into the gravity of his breach of the professional standards. The Appeal Tribunal does not consider that it was necessary for the Original Tribunal to refer to particular standards statements when considering the elements of section 65(3)(e) of the ACAT Act. The Appeal Tribunal is unable to discover any error of the Original Tribunal on this ground.
The 12^th ground was not pressed.
The 13^th ground related to the weight given by the Original Tribunal to the testimonials about the Appellant. The Appellant argued that the Original Tribunal incorrectly concluded that the Appellant had not told the authors of the testimonials about the issue of the complaint and was in error when it failed to give proper or any weight to the testimonials. The Original Tribunal was provided with about 30 statements and testimonials written in support of the Appellant. These statements and testimonials were also before the Appeal Tribunal. The Appeal Tribunal notes that the Original Tribunal did not conclude that the Appellant had not told the authors about the issue of the complaint, rather that in none of the statements or testimonials was it clear that the Appellant had "made full disclosure of the conduct he has subsequently admitted before the Tribunal".[38]
[38] Paragraph 56 Original Decision
Whilst many of the testimonials and statements refer expressly to the complaint, the Appeal Tribunal agrees with the Original Tribunal’s conclusion that none of testimonials or statements demonstrates that the Appellant has made a full disclosure of the conduct that was admitted before the Original Tribunal. The Appeal Tribunal also agrees with the Original Tribunal’s observation that a number of the testimonials disputed that the Appellant could be guilty of the conduct complained of and doubted the honesty of the Complainant.[39] On the other hand, the Original Tribunal clearly accepted that “the [Appellant] is highly regarded by many of his patients, and that he seeks to act in their best interests.”[40] The Appeal Tribunal is therefore unable to discover any error in the weight given by the Original Tribunal to the testimonials and statements.
[39] Paragraph 56 Original Decision
[40] Paragraph 56 Original Decision

The 14th and 15th grounds were not pressed.
The 16^th and 17^th grounds claimed that the Original Tribunal erred in not giving any or greater weight to the doctor shortage in Canberra or to the impact of the suspension upon the Appellant’s 3000 patients. The Appellant argued that this is a relevant consideration for the Tribunal to take into account before making an occupational discipline order involving a suspension or cancellation of registration under section 43(2)(b) of the HP Act. Whether these considerations are relevant to public safety is a complex question of law. Although the Appeal Tribunal expresses no concluded view on this point, it notes that the Original Tribunal did take these factors into account in relation to severity.[41] In the view of the Appeal Tribunal, such an approach is proper when the Tribunal is exercising its power to make an order for occupational discipline under section 66 of the ACAT Act, without recourse to the interpretation of "public safety” in section 43 of the HP Act that was pressed by the Appellant in the current proceedings. The Appeal Tribunal is unable to discover any error of the Original Tribunal on this ground.
[41]Paragraph 89 Original Decision
The 18^th ground was not pressed.
The 19^th ground reprised the workload issues and lack of prior complaints mentioned in grounds 1 and 4. The Appeal Tribunal is unable to discover any error of the Original Tribunal on this ground.
The 20^th ground argues that the Original Tribunal did not take into account that suspension of the Appellant from practice meant that he will effectively “lose his practi[c]e.” This is incorrect. The 3rd order made by the Original Tribunal and the reasons for it[42] clearly show that the Tribunal considered this issue. The Appeal Tribunal is unable to discover any error of the Original Tribunal on this ground.

Conclusion

[42] Paragraph 97 Original Decision

The Appeal Tribunal is not satisfied that there is a basis for setting aside the decision of the Original Tribunal and the appeal is therefore dismissed.

………………………………..

Professor P. Spender
Presidential Member

PUBLICATION DETAILS

TO BE PUBLISHED

To be completed by Tribunal Staff

PART A FILE NO: AA 09/25

APPELLANT: THE MEDICAL PRACITIONER
RESPONDENT: THE ACT MEDICAL BOARD

COUNSEL APPEARING: APPELLANT: MR C MCKEOWN

RESPONDENT: MR G MCCARTHY

SOLICITORS: APPELLANT:

RESPONDENT: ACT Government Solicitors

OTHER: APPELLANT:

RESPONDENT:

TRIBUNAL
MEMBERS Professor. P. Spender, Presidential Member

Dr F. Long, Member
Dr T. Faunce, Member

DATE/S OF HEARING: 18^th February 2010 and 19 February 2010 PLACE: CANBERRA

DATE/S OF DECISION: 17 September 2010 PLACE: CANBERRA

PART B

RECOMMENDATION:

FULL REPORT ( ) CASE NOTE ( ) UNREPORTED DECISION ( )

COMMENTS:

Wales Bar Association v Evatt (1968) 117 CLR 177 at 183-184

Spigelman CJ.

per Kitto J.

per Fox J.