Wilks v Medical Board of South Australia - [2010] SASC 287

SUPREME COURT OF SOUTH AUSTRALIA
(Miscellaneous Appeal: Civil)
WILKS v THE MEDICAL BOARD OF SOUTH AUSTRALIA
[2010] SASC 287
Judgment of The Honourable Justice Gray
11 October 2010
PROFESSIONS AND TRADES - HEALTH CARE PROFESSIONALS - MEDICAL PRACTITIONERS - LICENCES AND REGISTRATION - CHARACTER
PROFESSIONS AND TRADES - HEALTH CARE PROFESSIONALS - MEDICAL PRACTITIONERS - LICENCES AND REGISTRATION - APPEALS AND APPLICATIONS FOR ORDER DIRECTING REGISTRATION
PROFESSIONS AND TRADES - HEALTH CARE PROFESSIONALS - MEDICAL PRACTITIONERS - DISCIPLINARY PROCEEDINGS - PROFESSIONAL MISCONDUCT AND UNPROFESSIONAL CONDUCT - GENERALLY
Appeal against refusal for registration as a medical practitioner in South Australia by the Medical Board of South Australia – appellant was subject to disciplinary proceedings in Victoria and registration cancelled in that State for unprofessional conduct – whether Medical Board of South Australia gave proper consideration to evidence – whether Medical Board proceeded on a misunderstanding of fact – whether Medical Board gave appropriate weight to certain matters – observations about public interest in doctor-patient relationship.
Held: appeal dismissed – complaints are misconceived – approach of and findings made by Medical Board were justified.
Medical Practice Act 2004 (SA) s 13, s 31(1)(b), s 32, s 33, s 43, s 65(2)(b) and s 65(6)(c); Medical Practice Act 1994 (Vic) s 3(1) and s 45A(2)(h); Health Practitioner Regulation National Law (South Australia) Act 2009 (SA) Sch 2: s 287(1) and s 52; Sch 1: s 42; Mutual Recognition Act 1992 (Cth), referred to.
Re a Medical Practitioner [1995] 2 Qd R 154; A Practitioner v Medical Board of Western Australia [2005] WASC 198; Medical Practitioners Board of Victoria v Lal [2009] VSCA 109; Sobey v Commercial and Private Agents Board (1979) 22 SASR 70; Hughes and Vale Pty Ltd v New South Wales (No 2) (1955) 93 CLR 127; Basser v Medical Board of Victoria [1981] VR 953; Felix v General Dental Council [1960] AC 719; Hobart v Medical Board of Victoria [1966] VR 292; Pettiford v Medical Practitioners Board of Victoria [2003] VCAT 940; Richter v Walton [1993] NSWCA 233; Re a Psychologist [2009] TASSC 70; RJT v Nurses' Board of Victoria [2000] VSC 498; NSW Bar Association v Evatt (1968) 117 CLR 177; Craig v Medical Board of South Australia (2001) 79 SASR 545; Peeke v Medical Board of Victoria (unreported, Marks, J, Supreme Court, Victoria, 19 January 1994), considered.

WORDS AND PHRASES CONSIDERED/DEFINED
"fit and proper person"

WILKS v THE MEDICAL BOARD OF SOUTH AUSTRALIA
[2010] SASC 287
Miscellaneous Appeal
GRAY J:
Introduction

On 21 May 2010, the Medical Board of South Australia refused an application by Gregory James Wilks for registration as a medical practitioner in South Australia. This is an appeal against that refusal.
In 2007 Mr Wilks was subject to disciplinary proceedings before the Medical Practitioners Board of Victoria for unprofessional conduct of a serious nature in relation to sexual conduct towards three female patients. The findings and orders of the Victorian Board were affirmed on review by the Victorian Civil and Administrative Tribunal. Ultimately Mr Wilks’ registration as a medical practitioner was cancelled for a period of five years. Some time later, Mr Wilks applied for registration as a medical practitioner in this State. The Medical Board of South Australia refused registration on the grounds that it could not be satisfied that Mr Wilks was a fit and proper person to be registered.
In my view, the conduct the subject of the findings of the Victorian Board as affirmed by the Tribunal had the potential to erode public confidence in the medical profession. There is a need to protect the public from unprofessional medical practitioners, particularly those who are indifferent to basic professional standards.
This appeal raised the suggestion that the Medical Board of South Australia gave excessive weight and paid too much attention to the Victorian disciplinary process at the expense of other relevant considerations. It is to be borne in mind that this matter is not a disciplinary proceeding. It is an appeal against a refusal to grant an application for registration as a medical practitioner. The reasons and findings of the Victorian Board as affirmed by the Tribunal and the orders there made, all have a relevance to the present proceeding in terms of the appropriate approach to be taken to or factors to be taken into account when assessing whether or not Mr Wilks is a fit and proper person for the purposes of registration under the Medical Practice Act 2004 (SA).
I have reached the view that the appeal should be dismissed. There is no substance to Mr Wilks’ complaints. Mr Wilks’ disqualification will expire in December 2010, at which time he will be eligible to apply for registration. My reasons follow.
This is now the fourth occasion where the issues arising from Mr Wilks’ conduct have been addressed. Notwithstanding his assertions to the contrary, Mr Wilks continues to challenge some of the findings of the Victorian Board as affirmed by the Tribunal. Although in my view it is not open to Mr Wilks to re‑agitate the issues that were before the Victorian Board and Tribunal, it is necessary to set out in summary form why I think those findings were appropriate in order to address the issues raised before me by Mr Wilks.
Background
Mr Wilks is now aged in his early fifties. He was registered as a medical practitioner in Victoria in 1982. He received a diploma of obstetrics in 1986 and a Masters degree in forensic medicine in 1992. He commenced general practice in 1987 in suburban Melbourne. The bulk of his practice was in obstetrics and caring for young families. In the evenings, he worked as a forensic physician, looking after prisoners at a suburban police station. In 2004, Mr Wilks encountered marital difficulties. His marriage has since ended. He has two teenage children. In 2004, he spent many hours in the evening on the internet, visiting what he described as “adult chat sites”.
The Victorian proceedings
On 22 May 2007, the Medical Practitioners Board of Victoria made an order pursuant to section 45A(2)(h) of the Medical Practice Act 1994 (Vic), cancelling Mr Wilks’ registration as a medical practitioner in that State. The Board further disqualified Mr Wilks from applying for registration under section 5 of the Act, for a period of five years, commencing from 22 May 2007.
In October 2007, on Mr Wilks’ application, the Victorian Civil and Administrative Tribunal reviewed the Victorian Board’s decision. On 17 December 2007, the Tribunal confirmed the order cancelling Mr Wilks’ registration as a medical practitioner. However, the Tribunal varied the disqualification order so that Mr Wilks was disqualified from applying for registration for a period of three years, six months and 25 days, from 22 May 2007. The Tribunal noted that this was in substance the same decision as that made by the Victorian Board, save that a period during which Mr Wilks had been under suspension was brought to account. The consequence of this order was that Mr Wilks would be unable to apply for registration under section 5 of the Act until 17 December 2010.
The Victorian Board and Tribunal respectively made and confirmed findings that Mr Wilks engaged in unprofessional conduct of a serious nature. The findings included the following.
In August 2004, Mr Wilks told a young female patient, while he was prescribing a contraceptive pill for her, that he preferred to examine younger women and that older women did nothing for him. He then confided inappropriate information of a personal sexual nature, including his internet dating, sexual relationship with his wife and extra-marital sexual liaison. Shortly after the patient left the consultation room he sent an SMS message propositioning her by suggesting a personal relationship with her.
During a 26 year old female patient’s first antenatal consultation with him on 26 November 2004, while examining her breasts, Mr Wilks made inappropriate comments about how her breasts had grown and how he bet that her husband loved that. While in the course of this consultation, Mr Wilks also told the patient an inappropriate sexually related joke. After hanging up the telephone following a short conversation with her husband, the patient was asked by Mr Wilks: “Have you seen that movie Ruthless People?”. She replied that she had not and Mr Wilks told her about a scene in the movie where the woman’s phone rings, and Danny Devito picks it up and says “She can’t come to the phone right now, she’s got my dick in her mouth.” Mr Wilks on that occasion also failed to provide appropriate privacy for the patient - such as a screen around the examination couch for disrobing, a gown or a cover sheet - for an intimate internal examination which he conducted while she was undressed from the waist down. Mr Wilks further failed to adequately communicate the purpose for that examination.
The two female patients involved in the above two incidents, felt so uncomfortable with their interactions with Mr Wilks, that they terminated the doctor-patient relationship.
It was further found that from about October 2004 Mr Wilks commenced a sexual relationship with a patient, Ms L, while she was in a vulnerable condition, and continued to treat her as her medical practitioner subsequent to the commencement of that sexual relationship until January 2005, while continuing to treat her husband as his patient. It was found that Mr Wilks’ conduct was infamous conduct in a professional respect being predatory and exploitative and a betrayal of the trust of Ms L’s family. In respect of Ms L’s vulnerable position, the Tribunal assessed the evidence as follows:[1]
Whilst Ms [L] might portray herself in the way she describes, which could be explained by the circumstances she finds herself in, the fact is that there were discussions with her doctor from late May about family issues. Counselling was discussed on 31 August. Mr Wilks referred her for counselling with the first session on 21 September. Mr Wilks concedes that she was referred for psychological assessment and management of depression and marital problems. On 7 September there is a long chat about low libido, and Ms [L] clarified she wanted counselling for marital problems and low libido. There follows the testosterone implant on 13 September. In cross-examination, it emerged that even at this point it was not on Mr Wilks’ mind that in these circumstances he should have been on guard to make sure no relationship developed. He saw no difference in how vigilant he should have been, even though he had additionally given her a testosterone injection. Indeed, his evidence was that he did not think that the testosterone was going to “sway her one way or the other to him”.
To rewrite history and to try and suggest that Ms [L] was not in those circumstances if not actually in a vulnerable state emotionally, at least potentially, flies in the face of clinical evidence recorded at the time. The referral for counselling, the written reasons advanced for the counselling referral and subsequent counselling, all indicate the contrary. We are satisfied that in all probability she was vulnerable at the time. That finding is supported by the evidence of her husband … and their mutual friend Ms DI, both of whom gave evidence and who had observed that she had not been herself since the birth. Though a “layman”, [Ms L’s husband] believed she may have been suffering from post-natal depression.
[1] Wilks v Medical Practitioners Board of Victoria [2007] VCAT 2439 at [83]-[84].
It was further found that from about October 2004, Mr Wilks breached the trust of his patient, Mr L, the husband of Ms L, by continuing to treat him while engaging in the sexual relationship with Ms L. It was found that on about 16 October 2006, Mr Wilks misled the Medical Practitioners Board of Victoria during its investigation by advising it that he had ceased treating Ms L once his sexual relationship with her commenced.
It is apparent that Ms L and her husband were consulting Mr Wilks for, inter alia, sexual problems in their marriage. It was found that Mr Wilks gave Ms L a testosterone implant for the purposes of increasing her libido and prescribed the contraceptive pill at the same time as the commencement of their sexual relationship.
Shortly after the commencement of the sexual relationship between Mr Wilks and Ms L, Ms L’s husband sought advice from Mr Wilks about a vasectomy and chemical castration for the purpose of finding out if either would lead to a lowering of his libido. It was found that during that consultation, Mr Wilks was using an instant messaging service on the computer to communicate with Ms L. After that consultation, Ms L’s husband consulted Mr Wilks seven times over five months on different matters before he discovered the sexual relationship between his wife and Mr Wilks.
Notwithstanding the order of the Victorian Tribunal, Mr Wilks made subsequent application to the Victorian Board for registration as a medical practitioner, relying on what was said to be a remaining statutory discretion reposed in the Board by the Victorian Act. The Victorian Court of Appeal in Medical Practitioners Board of Victoria v Lal[2] recognised the existence of such a discretion and observed:
Once it is recognised that a residual discretion exists, it matters not that there may, for practical purposes, be no circumstances in which the discretion could sensibly be exercised if certain other disqualifying grounds were made out. If, for example, the registering authority concluded under the first limb of s 6(2)(d) that the applicant was not ‘suitable to practise’, it is difficult to conceive of any circumstances in which it would be appropriate to exercise the discretion to register. But the fact that the discretion will never, or rarely, be exercised in relation to particular grounds of disqualification does not deny its existence.
Prior to the determination of that application, it was withdrawn by Mr Wilks.
[2] Medical Practitioners Board of Victoria v Lal [2009] VSCA 109 at [79] (Maxwell P, Weinberg JA and Kyrou AJA).
Mr Wilks informed this Court that he had made a further application for registration in Victoria and that the application was presently before the Victorian Board and had not yet been heard.
South Australian registration
In January 2010, Mr Wilks applied for registration as a medical practitioner in South Australia. He had been offered employment at Coober Pedy by Australian Babich Medicos Pty Ltd in respect of two closed periods: 3 to 24 May 2010 and 12 to 30 June 2010. The work contemplated an experienced general practitioner covering hospital and general practice work. Full unconditional medical registration was required. It is for this reason that Mr Wilks sought registration in South Australia.
Following an exchange of emails with the Medical Board of South Australia, Mr Wilks applied for registration by letter of 4 March 2010. Material concerning the proposed session work, character references and other documents, were attached to Mr Wilks’ application.
By letter dated 27 April 2010, the Medical Board of South Australia addressed Mr Wilks’ application for registration. The letter in particular addressed the requirement that Mr Wilks be a fit and proper person to be registered and advised:
Of particular relevance to your application is the requirement to be a fit and proper person to be registered.
Your registration as a medical practitioner was cancelled by the Medical Practitioners Board of Victoria. You are presently disqualified from applying for registration in Victoria until 17 December 2010 (as varied by the VCAT).
Your misconduct leading to the cancellation of your registration can be classified as extremely serious breaches of the power imbalances inherent in doctor-patient relationships. Of particular note to the Committee were the VCAT findings that you failed to:
1.    acknowledge your misconduct and how serious it was;
2.    express proper remorse for your conduct;
3.    show any true insight into your conduct; or
4.    demonstrate that you understand fundamental doctor/patient relationships, boundary issues or the essence of the doctor-patient relationship.
The Committee considered that your letter accompanying your application for registration likewise seeks to minimise the seriousness of your misconduct and exhibits a continuing lack of insight into your behaviour and its consequences.
The letter dealt with the continuing relationship between Mr Wilks and Ms L:
It is of particular concern to the Committee that you continue to be in an intimate relationship with one of the victims of your misconduct and are potentially continuing to abuse the power imbalance that was present when the relationship was entered. Your lack of insight in this regard is evident in using the victim and her mother as character referees. Often victims do not realise that they have been exploited until the relationship comes to an end.
An apparent lack of acceptance of the Victorian findings on the part of Mr Wilks was then addressed:
Further, your continued lack of acceptance of the VCAT’s findings created a sense of disquiet amongst Committee members. It cannot be disputed that the VCAT found, after due inquiry, that you used your professional position to prey on a potentially vulnerable patient, exploited her for your own gratification and that such conduct was aggravated by your failure to end the relationship for reasons which it found were to gratify your own desires. Further, the Committee cannot see how continuing to counsel the patient’s husband about marital difficulties after commencing an intimate relationship with his wife could be characterised as anything other than gross betrayal and deceit.
The letter then dealt with the purposes of disqualification:
It is of considerable importance in considering your application for registration that the VCAT determined that it would be necessary for the protection of the public for your registration to be cancelled and for you to be disqualified from applying for registration until 17 December 2010.
You argue that the period of disqualification imposed by the VCAT is a convoluted prediction which defies logical analysis and ask the prediction be re-evaluated.
The Committee does not accept your contention that the period of disqualification imposed requires a prediction to be made of the time required for a practitioner to be rehabilitated. Instead the period of disqualification should be seen as the minimum period necessary to achieve all three purposes of disciplinary orders, namely
1.    to secure the protection of the public;
2.    to deter the practitioner who is subject of the order from engaging in such conduct in the future; and
3.    to emphasise to other members of the profession, or to reassure the public, that a certain type of conduct is not acceptable professional conduct.
Once the period of disqualification is fulfilled it is incumbent upon you to apply for registration. You will not be registered until you successfully demonstrate that you are a fit and proper person to be registered.
The Committee considers that it would shock the public consciousness if it were to grant you registration in South Australia whilst you are disqualified from applying for registration in Victoria. Such a decision would serve to damage the confidence of the public in the Board as a regulator, defeat the principles of the Mutual Recognition Act 1992 and undermine the integrity of the National Registration and Accreditation System for health professionals which commences on 1 July 2010.
Following these observations, the letter further advised:
The Committee has made a preliminary determination that having regard to the matters outlined above, you are presently not a fit and proper person to be registered in South Australia. Further, for the same reasons it believes that it would be contrary to the public interest to grant you limited registration to enable you to work in Coober Pedy.
The Committee would like to give you an opportunity to be heard in relation to its preliminary determination and invites you to provide any written submission you wish to make by 11 May 2010. The Committee will then proceed to final determination at its meeting on 18 May 2010.

On 9 May 2010, Mr Wilks in a detailed written submission addressed the matters raised in the letter of the Medical Board of South Australia. Mr Wilks explained why the Board should proceed to accept his application for registration. Mr Wilks acknowledged that his behaviour was “totally and unreservedly unacceptable”. Mr Wilks further acknowledged that his behaviour involved a betrayal of the trust of his patients and the breach of standards of the profession. In the course of this lengthy submission, Mr Wilks recognised that his behaviour in 2004 was “seriously unprofessional and abhorrent, even without considering the matters which [were] denied”. However, he made it plain in his submission, that he disagreed that he was a predator, and that he engaged in any predation or exploitation.
Mr Wilks claimed in this Court not to be seeking to reargue his case as it was before the Victorian Board and Tribunal, but then proceeded to do so and in particular, challenged findings made by the Victorian Board and Tribunal. In particular he challenged the finding that Ms L was vulnerable and that he exploited his position as her medical practitioner.
In the course of his written submissions, Mr Wilks claimed that he accepted that at the time of the relevant conduct he had not understood the doctor-patient relationship and its boundaries. He claimed to accept that he had overstepped the boundary through, what he described as “transference and counter-transference”, leading to confusion of roles and the perception of an equal status with his patients. However, having regard to his further submissions before this Court, it is difficult to accept that Mr Wilks has such an understanding or awareness.
Mr Wilks did not seek to attend personally before the Medical Board of South Australia. On the hearing of the appeal, he accepted that everything he wished to say to the Board had been put to the Board through his written submissions.
On 21 May 2010, the Medical Board of South Australia, through its registration committee, reconvened and considered the further submissions and material advanced by Mr Wilks. The committee affirmed its preliminary determination, as earlier extracted, and refused Mr Wilks’ application for registration on the grounds set out in its letter of 27 April 2010. It is from this decision of the Medical Board of South Australia, that Mr Wilks has appealed to this Court.
The statutory requirement: fit and proper person
The Medical Practice Act regulated the provision of medical treatment and the registration of medical practitioners in South Australia.[3] The Medical Board was established by section 5 of that Act. The Board’s functions included maintaining registers of practitioners and regulating the practice of medicine.[4] One of the registers that the Board maintained was the general register.[5] Registration on the general register, or an appropriate other register, authorised a person to provide medical treatment.[6]
[3]    This Act has now ceased operation and was replaced by the Health Practitioner Regulation National Law (South Australia) Act 2009 (SA) which came into operation on 1 July 2010. The implications of these developments on the within proceeding are addressed later in these reasons.
[4]    Medical Practice Act 2004 (SA), section 13.
[5]    Medical Practice Act 2004 (SA), section 31(1)(b).
[6]    Medical Practice Act 2004 (SA), sections 32 and 43.
Mr Wilks had to satisfy the Medical Board of South Australian that he was a fit and proper person to be registered as a medical practitioner. Section 33 of the Medical Practice Act provided:
(1)     Subject to this Act, a natural person is eligible for registration on the general register, and a person registered on the general register is eligible for registration on the specialist register in a particular specialty, if the person, on application to the Board, satisfies the Board that he or she—
(a)has qualifications approved or recognised by the Board for the purposes of registration on the register or in the specialty to which the application relates; and
(b)has met the requirements determined by the Board to be necessary for the purposes of registration on that register or in that specialty; and
(c)is medically fit to provide medical treatment of the kind authorised by registration on that register; and
(d)is, unless exempted by the Board, insured or indemnified in a manner and to an extent approved by the Board against civil liabilities that might be incurred by the person in connection with the provision of medical treatment as a medical practitioner; and
(e)is a fit and proper person to be registered on that register or in that specialty.
(2)     If a person who applies for registration, or reinstatement of registration, on a particular register or in a particular specialty—
(a)does not, in the opinion of the Board, have the necessary qualifications or experience required for registration on that register or in that specialty; or
(b)is not, in the opinion of the Board, medically fit to provide medical treatment of the kind authorised by registration on that register; or
(c)is not, in the opinion of the Board, a fit and proper person to be registered on that register or in that specialty,
the Board may register the person on that register or in that specialty in pursuance of this subsection (limited registration)—
(d)     in order to enable the person—
(i)to do whatever is necessary to become eligible for full registration under this Act; or
(ii)     to teach or to undertake research or study in this State; or
(iii)in the case of an applicant who has obtained qualifications for the practice of medicine under the law of a place outside of Australia—to practise in a part of the State or at a place that the Minister and the Board consider is in urgent need of the services of a medical practitioner; or
(e)     if, in its opinion, it would otherwise be in the public interest to do so.
[Emphasis added]
The requirement that an applicant satisfy the Board that he or she is a fit and proper person to be registered embraced a wide range of matters. As Walters J said in Sobey v Commercial and Private Agents Board,[7] in a different context:
The issue whether an appellant has shown himself to be "a fit and proper person", within the meaning of s 16(1) of the Act, is not capable of being stated with any degree of precision. But for the purposes of the case under appeal, I think all I need to say is that, in my opinion, what is meant by that expression is that an applicant must show not only that he is possessed of a requisite knowledge of the duties and responsibilities devolving upon him as the holder of the particular licence under the Act, but also that he is possessed of sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public, without further inquiry, as a person to be entrusted with the sort of work which the licence entails. …
[Footnote omitted]
[7] Sobey v Commercial and Private Agents Board (1979) 22 SASR 70 at 76.
The breadth of the statutory requirement is emphasised by observations made by Dixon CJ, McTiernan and Webb JJ in Hughes and Vale Pty Ltd v New South Wales (No 2).[8]Their Honours observed:
... The expression "fit and proper person" is of course familiar enough as traditional words when used with reference to offices and perhaps vocations. But their very purpose is to give the widest scope for judgment and indeed for rejection. "Fit" (or "idoneus") with respect to an office is said to involve three things, honesty knowledge and ability: "honesty to execute it truly, without malice affection or partiality; knowledge to know what he ought duly to do; and ability as well in estate as in body, that he may intend and execute his office, when need is, diligently, and not for impotency or poverty neglect it"--Coke. When the question was whether a man was a fit and proper person to hold a licence for the sale of liquor it was considered that it ought not to be confined to an inquiry into his character and that it would be unwise to attempt any definition of the matters which may legitimately be inquired into; each case must depend upon its own circumstances. ...
[8] Hughes and Vale Pty Ltd v New South Wales (No 2) (1955) 93 CLR 127 at 156-157.
In accordance with these observations, the requirement that Mr Wilks satisfy the South Australian Board that he was a fit and proper person to be registered was no formality.
The Appeal
An appeal to this Court is provided for by section 65(2)(b) of the Medical Practice Act. Section 65(6)(c) provides:
Right of appeal to Supreme Court…
(6) The Court, on an appeal under this section—
…
(c) must give due weight to the decision being appealed against and the reasons for it and not depart from the decision except for cogent reasons
Mr Wilks appeared without legal representation on the hearing of the appeal. He sought permission for Ms L to assist him at the bar table. Counsel for the Medical Board of South Australia did not oppose this course. I granted permission to Ms L to be at the bar table and to have leave to assist Mr Wilks.
It is to be recognised at the outset that Mr Wilks’ registration as a medical practitioner in Victoria was cancelled following a finding of the Victorian Board that he engaged in unprofessional conduct contrary to section 3(1)(a)-(d) of the Medical Practice Act 1994 (Vic), which relevantly provided:
"unprofessional conduct" means all or any of the following—
(a)professional conduct which is of a lesser standard than that which the public might reasonably expect of a registered medical practitioner; or
(b)professional conduct which is of a lesser standard than that which might reasonably be expected of a medical practitioner by her or his peers; or
(c) professional misconduct; or
(d) infamous conduct in a professional respect; or
…
A finding of “infamous conduct in a professional respect” is that which would be reasonably regarded by one’s right-thinking competent colleagues as reprehensible, shameful, dishonourable or disgraceful.[9] It is reserved for the worst cases of unprofessional conduct. The words “infamous and disgraceful” have been held to denote conduct deserving of the strongest reprobation.[10]
[9] Basser v Medical Board of Victoria [1981] VR 953.
[10] Felix v General Dental Council [1960] AC 719 at 720.
It has long been judicially recognised that it is unprofessional conduct for a medical practitioner to enter into a sexual relationship with a patient.[11] In Richter v Walton,[12] Kirby P and O’Keefe AJA observed, in a circumstance of sexual misconduct:
… 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. …
Priestley JA commented:
…The doctor's power in regard 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.…
[11] See for example Hobart v Medical Board of Victoria [1966] VR 292 at 297; Re a Medical Practitioner [1995] 2 Qd R 154 at 163-166; Pettiford v Medical Practitioners Board of Victoria [2003] VCAT 940 at [30]; Re a Medical Practitioner [1995] 2 Qd R 154 at 162-163. In Re a Medical Practitioner, in the course of assessing the nature of the doctor patient relationship and the approach to be taken to unprofessional conduct of a sexual nature by medical practitioners, Dowsett J dealt with the leading authorities, set out a list of salient features of the approach to be taken; and then concluded:
“The gravamen of this misconduct is breach of trust, misuse of power and exploitation of vulnerability. Sexual misconduct is only an example of such misconduct.”
[12] Richter v Walton [1993] NSWCA 233.
There is an acute public interest in those needing medical care being able to consult medical practitioners without fear of being subject to sexual inappropriateness in any form. A patient should be able to approach a doctor with confidence that the interaction is to be entirely neutral. If this were not the case, the risk arises that patients will not trust the medical profession and their future healthcare will become compromised as a consequence.
It must be that one of the more serious violations of medical professional boundaries is a sexual relationship between doctor and patient. The practice of medicine involves intimate access to the body and psyche of the patient.[13] A doctor assumes a special position of trust and authority over the patient. Accordingly, the deleterious effects on patients who are victim to doctors’ sexually exploitative conduct are not difficult to imagine. In sexual relationships between doctor and patient, there is an obvious concern that a patient’s interests may have been compromised as a result of the imbalance of power between the medical practitioner and the patient.[14] This is particularly so in cases where the patient is especially vulnerable.
[13] See Re a Medical Practitioner [1995] 2 Qd R 154 at 163.
[14] See A Practitioner v Medical Board of Western Australia [2005] WASC 198.
There is a significant public interest in patients being able to deal with detached and professional medical practitioners. The doctor-patient relationship is one of trust and power, and one that demands both neutrality and professionalism. The community is sensitive to ensuring that the relationship remains as one at arms length, and in ensuring that exploitation of the position of trust and power to a doctors own advantage is viewed as reprehensible. [15]
[15] See for example Peeke v Medical Board of Victoria (unreported, Marks, J, Supreme Court, Victoria, 19 January 1994).
Specific contentions
As mentioned, the findings of the Victorian Board with respect to the unprofessional conduct of Mr Wilks were specifically affirmed by the Victorian Tribunal. The Tribunal only interfered with the orders of the Victorian Board for the purposes of bringing to account a period of suspension from practice that had not been brought to account by the Victorian Board. There has been no further appeal.
On the hearing before this Court, Mr Wilks repeatedly asserted that he accepted the findings and their legal effect. However, notwithstanding these assertions, Mr Wilks sought to challenge findings of the Victorian Board and Tribunal, suggesting that particular findings were generally unreliable. As earlier mentioned, Mr Wilks sought in particular to challenge the findings that Ms L was a vulnerable patient whom he had exploited.
Mr Wilks submitted that the Medical Board of South Australia did not appreciate the unreliability of the findings of the Victorian Board and Tribunal. This submission was intermingled with submissions that the Medical Board of South Australia had failed to give meaningful consideration to other evidence, had proceeded on a misunderstanding of fact, had made errors of logic and had through specious reasoning attempted to give Mr Wilks’ past behaviour and the disciplinary findings, currency. The underlying challenge was to the finding that through the doctor-patient relationship, Mr Wilks had exploited Ms L’s vulnerability. It was submitted that not only had this not occurred, but that the Medical Board of South Australia was in error in referring to Ms Wilks’ ongoing relationship with Ms L as demonstrating a continuing failure on his part to recognise his professional responsibilities.
As observed above, the findings of the Victorian Board as affirmed by the Tribunal were that Mr Wilks not only engaged in professional misconduct, but that that conduct in part amounted to infamous conduct. This later conclusion was reached partly on the basis of the general circumstances in which Mr Wilks entered into a sexual relationship with Ms L, but also because of what were described as a number of aggravating factors. Those factors included the following:
-Both Ms L and her husband were patients of Mr Wilks.
-Mr Wilks’ unprofessional conduct not only breached his obligation to Ms L, but also perpetrated a gross betrayal of trust of her husband.
-At the time Mr Wilks commenced a sexual relationship with Ms L, she was in a vulnerable state. Evidence in support came from Ms L’s husband, Mr Wilks’ clinical notes at the time and a consequent referral to a counsellor for psychological assessment.
-One of the matters with respect to which Ms L sought medical advice related to low libido. Mr Wilks provided advice and treatment to increase Ms L’s libido. He then took advantage of this circumstance in entering into the sexual relationship with Ms L. This, in the Board and Tribunal’s view was appalling and opportunistic conduct occurring in circumstances where a medical practitioner was under an obligation to be extra vigilant in ensuring that no personal or intimate relationship developed.
-Mr Wilks lied to the Board about the timing of the commencement of his sexual relationship with Ms L.
Mr Wilks has continued his relationship with Ms L. He informed this Court that they now live in a de facto relationship. The Medical Board of South Australia, as noted above, viewed this ongoing relationship as a matter of some relevance. The Board further noted a sense of disquiet about Mr Wilks continued lack of acceptance of the Victorian Board and Tribunal findings, and in particular the non-acceptance of the finding that Mr Wilks used his professional position to prey on a potentially vulnerable patient exploiting her for his own gratification, and the aggravation of that conduct by his failure to end the relationship because of his need to gratify his own desires.
In my view there is no substance to these complaints. Mr Wilks’ conduct was appalling and to adopt a description from his submission, was “abhorrent”. On any view, his conduct was unprofessional and involved infamous misconduct. His conduct toward Ms L and her husband involved a manipulation of their relationship to his advantage, in circumstances involving a betrayal of trust. His unprofessional conduct was not restricted to his dealings with Ms L and her husband. As discussed earlier, his misconduct extended to his treatment of two other female patients. Again, their treatment was appalling.
The Medical Board of South Australia, when addressing the ongoing relationship between Mr Wilks and Ms L, considered that this was “potentially continuing to abuse the power imbalance that was present when the relationship was entered”. The Board went no further than to recognise this potential or possibility. The Board’s primary reason for refusing registration was the gravamen of the unprofessional conduct the subject of the Victorian Board and Tribunal findings. The Board correctly identified the purposes of disqualification. It was open to the Board to refuse registration in South Australia. In particular the Board was entitled to reach the conclusion that it would shock the public conscience if it were to grant registration in circumstances where Mr Wilks’ conduct warranted his disqualification in another State.

The relevance of an ongoing sexual relationship with a former client has been the subject of judicial comment. In Re a Psychologist[16] Blow J adopted the following observations of Commissioner Martin QC in A Practitioner v The Medical Board of Western Australia:[17]
… a former patient's interests are as well capable of being inappropriately jeopardised, if a medical practitioner in some way exploits the professional credibility established by a prior therapeutic relationship in order to pursue personal ends or objectives, to the prejudice of the former patient. Moreover, it would be intolerable if a medical practitioner were able to cynically terminate an existing therapeutic relationship with an eye to the future, so as to pursue a personal objective with a patient, once the shackles of the professional relationship had been removed.
A second general observation I make is that many of the disciplinary cases which have gone on further to be decided by courts, concern sexual relationships developed consensually as between a practitioner and a patient, or, as between a medical practitioner and a former patient. In those sexual relationship cases, there is an obvious concern that a patient's interests may have been compromised arising out of the imbalance of power between the medical practitioner and the patient. The potential for the will of the patient in that situation to be unwittingly overborne as a result of undue influence, is great.
Observations have been made concerning a particular susceptibility of patients of medical practitioners in the fields of gynaecology and psychiatry, where the intimacy of the professional relationship is such that there is grave risk that a patient's interests may be compromised, if the professional relationship develops towards a personal relationship. A patient may not realise for many years after the establishment of a personal relationship, that in fact they have been subjected to influences which have compromised their ability to actually make a free choice concerning the entry into and maintenance of the personal relationship. The term 'exploitation' is frequently used in this context to indicate that the practitioner has taken advantage of a power imbalance arising as a result of the professional relationship, to the detriment of the patient's interests, either short term or long term. …
[Emphasis in original]
[16] Re a Psychologist [2009] TASSC 70 at [57]-[58].
[17] A Practitioner v Medical Board of Western Australia [2005] WASC 198 at [28]-[30].
In RJT v Nurses' Board of Victoria,[18] Nathan J observed:
There is no need for contemporaneity between the practitioner/patient relationship and the conduct complained of, for it to amount to unprofessional behaviour. A medical practitioner may abuse his or her professional position by exploiting the relationship for the purposes of sexual gratification and thus act unprofessionally.
[18] RJT v Nurses' Board of Victoria [2000] VSC 498 at [44].
These observations demonstrate that the ongoing relationship between Mr Wilks and Ms L was not an irrelevant consideration for the Medical Board of South Australia.
I am of the view that the Medical Board of South Australia was correct to refuse registration. To allow registration and in effect reduce the period of disqualification would in the circumstances cause public disquiet. The public are entitled to be protected from such unprofessional conduct. Mr Wilks’ submission to the Medical Board of South Australia and this Court, that the findings made by the Victorian Board and affirmed by the Tribunal were unreliable, is a matter of concern. In effect, Mr Wilks has sought to challenge the gravamen of the finding that he preyed on a vulnerable patient and exploited that patient for reasons of personal sexual gratification. Mr Wilks’ apparent refusal to accept this finding suggests that there may be an ongoing need to protect the public by deterring Mr Wilks from engaging in such conduct. There is also the need to emphasise to other members of the medical profession that conduct such as that of Mr Wilks is totally unacceptable and provide to the public reassurance of the law’s recognition of this fact.
A disturbing feature of the findings made against Mr Wilks is the appearance of an inappropriate sexual interest in female patients. His conduct towards Ms L was not isolated and cannot be explained by a one-off circumstance of infatuation. His misconduct toward the other female patients occurred at or about the same time as his conduct toward Ms L.
The complaint that the Medical Board of South Australia misunderstood the evidence is misconceived. This contention related to the observation of the Board that Mr Wilks continued to consult, advise and treat Ms L’s husband after he had commenced a sexual relationship with Ms L. This observation is consistent with the findings made by the Victorian Board and affirmed by the Tribunal.
Mr Wilks further complained that the Medical Board of South Australia failed to act “within the law or in the public interest”. This appeal ground was supported by a number of diverse complaints. Mr Wilks asserted that the Board declined to allow him to appear in person. A review of the correspondence before this Court discloses that there was no application to appear in person. Although Mr Wilks in oral argument asserted that he had indicated a desire to attend before the Board, he accepted on the hearing of the appeal that his extensive written submissions to the Medical Board of South Australia addressed every matter that he wished to advance before the Board.
Mr Wilks complained that the Medical Board of South Australia had undue regard to the principles of the Mutual Recognition Act 1992 (Cth) and the yet to be proclaimed Health Practitioner Regulation National Law (South Australia) Act 2009 (SA). In that respect as earlier extracted the Board observed:
The Committee considers that it would shock the public consciousness if it were to grant you registration in South Australia whilst you are disqualified from applying for registration in Victoria. Such a decision would serve to damage the confidence of the public in the Board as a regulator, defeat the principles of the Mutual Recognition Act 1992 and undermine the integrity of the National Registration and Accreditation System for health professionals which commences on 1 July 2010.
In my view there is no substance to this complaint. It is a matter of common sense that full effect be given to the Victorian decisions, that the integrity of the national legislation due to commence in the near future should be maintained and that the public should continue to have confidence in the South Australian regulator. To allow registration of Mr Wilks as a medical practitioner in South Australia at a time prior to December 2010 would shock the public conscience. In December 2010 Mr Wilks will be entitled to apply for registration and will need to meet the requirements of the national legislation. In particular he will need to satisfy the appropriate body that he a suitable person to be registered as a medical practitioner.
Mr Wilks further complained that the Medical Board of South Australia drew adverse inferences from his denial of “certain matters”. He supported this submission by reference to the Act for the Abolition of the Court of the Star Chamber.This submission involved the earlier referred to challenge by Mr Wilks to findings of the Victorian Board as affirmed by the Tribunal. My reasons for rejecting this submission have already been addressed. It was open to the Medical Board of South Australia to reach the conclusion that Mr Wilks had failed to develop an appropriate insight into his unprofessional conduct.
I now turn to Mr Wilks’ complaint that the Medical Board of South Australia went beyond the application of disciplinary considerations and, I infer, engaged in an exercise of punishment.
In NSW Bar Association v Evatt,[19] in a much cited passage, the High Court found that the conduct in question demonstrated that the practitioner was unfit to practise as a barrister, and then went on to say:
…The Supreme Court thought, moreover, that as the exercise of its disciplinary powers was, to some extent, a punishment for wrongdoing, mercy might be shown towards a young man who had not understood the error of his ways. The power of the Court to discipline a barrister is, however, entirely protective, and, notwithstanding that its exercise may involve a great deprivation to the person disciplined, there is no element of punishment involved. This has already been pointed out by this Court in Clyne v NSW Bar Association. The respondent's failure to understand the error of his ways of itself demonstrates his unfitness to belong to a profession where, in practice, the client must depend upon the standards as well as the skill of his professional adviser.
[Footnote omitted]
[19] NSW Bar Association v Evatt (1968) 117 CLR 177 at 183-184.
A similar point was made in Richter v Walton where Kirby P and O’Keefe AJA said:[20]
Necessarily, the exercise of a disciplinary power in respect of a professional person may have a consequence that seems punitive and that has results for the person that are burdensome and hard. But that is not their purpose in the eye the law. In a case such as the present, punishment can be left to the application (if any) of the criminal law, to the consequences for the practitioner's practice, to any civil action that may be taken and to the shame of the publicity that has attended these proceedings. Punishment is not the purpose of the proceedings. That purpose remains, from first to last, ........ the protection of the public who deal with medical practitioners upon the assumption of their integrity and ethical behaviour, including those who deal with this practitioner.
[20] Richter v Walton [1993] NSWCA 233.
Doyle CJ in Craig v Medical Board of South Australia,[21] having cited the above extract from Evatt observed:
Apart from emphasising that the purpose of disciplinary proceedings is the protection of the public, and not punishment for wrongdoing, this passage makes the point that sometimes the protection of the public will require the making of an order with a greater adverse effect on the practitioner than might be warranted if punishment alone were the relevant consideration. The protection of the public did not permit mercy to be shown in that case.
This statement by the Court has often been cited as stating the basis upon which orders are made by professional disciplinary tribunals. A contrast is often drawn between orders made for the protection of the public, against professionals who have departed from proper professional standards, and orders or sentences by way of punishment as part of the administration of the criminal law.
While there is a fundamental difference between an order made by a professional disciplinary tribunal for the protection of the public, and a punishment imposed by a court administering the criminal law, disciplinary orders made by professional bodies may nevertheless have elements in common with criminal sanctions.
In the case of a professional disciplinary tribunal, an obvious type of order protective of the public is an order cancelling the registration or recognition of a person as a member of a profession. Such an order removes the right to practise in the profession, thereby protecting the public against a person found unfit to be a practitioner. And, as Evatt shows, such an order will be made even though, if punishment of the practitioner were the only consideration, considerations of mercy might lead to a less severe order.
In other cases the protection of the public or the public interest may justify an order intended to bring home to the practitioner the seriousness of the practitioner's departure from professional standards, and intended to deter the practitioner from any further departure. A fine might well be imposed with this object. An order imposing a fine might look like a punishment imposed by a court exercising criminal jurisdiction, but in professional disciplinary proceedings it is imposed on a different basis. An order might also be made in professional disciplinary proceedings to emphasise to other members of the profession, or to reassure the public, that a certain type of conduct is not acceptable professional conduct. In the latter case the order is made in part to protect the profession, by demonstrating that the profession does not allow certain conduct. This, in the end, is also in the public interest.
I make these points merely to emphasise that the protection of the public has various aspects. The public may be protected by preventing a person from practising a profession, by limiting the right of practice, or by making it clear that certain conduct is not acceptable. These are merely illustrations of the sort of order that may be called for.
[21] Craig v Medical Board of South Australia (2001) 79 SASR 545 at [43]-[48].
As can be seen from the remarks of Doyle CJ, attainment of the objective of protection of the community can have many varied aspects, and at times may result in consequences for the practitioner which are more adverse than those which may have resulted had punishment been an objective.
A perusal of the Medical Board of South Australia’s reasons demonstrates that the Board addressed the protection of the public and referred to personal deterrence and general deterrence only in the context of public protection. The submission that the Board engaged in an exercise of punishment is rejected.
Finally Mr Wilks complained that the Medical Board of South Australia failed to consider the evidence that supported his “fitness and propriety, [did not make] a meaningful assessment of current and future risk of harm and [did not consider] the public benefit of allowing a competent doctor to practice in an area of need.” It was contended that as a consequence the Board failed to have regard to the public interest in his registration. I now turn to the evidence to which Mr Wilks drew attention.
The offer of employment at Cooper Pedy was for a position as a general practitioner to cover hospital and general practice work for two discreet periods: 3 to 24 May 2010 and 12 to 31 June 2010. The letter of offer forwarded to Mr Wilks specified that South Australian medical registration status was required, and that in particular, he would need “full unconditional medical registration.” Mr Wilks provided what might be described as standard information concerning academic qualifications and the availability of insurance.
Mr Wilks attached a number of references to his application for registration. These included references provided by Ms L, her mother, a close friend of Ms L, a barrister who was a patient and friend, an associate professor who addressed Mr Wilks’ studies in bioethics, a specialist physician to whom Mr Wilks referred patients, a paramedic, a midwife and two female patients, one of whom was also a friend of Mr Wilks.
It is to be accepted that these references speak well of Mr Wilks and of his general competence. Several make reference to an awareness of the findings of unprofessional conduct. However, with the exception of the reference of Ms L, there is no condescension to any particularity. The references do not speak of any of the authors having read or reviewed the Victorian Board’s findings or the Tribunal’s affirmation of those findings.
All of the above material was before the Medical Board of South Australia. In the Board’s reasons, specific reference is made to the above material being considered and taken into account. No basis has been identified to support the assertion that the Board failed to have regard to the material.
In my view, the references do provide a body of evidence that is of relevance to Mr Wilks’ personal character and to his work as a medical practitioner. However there is nothing in the material that would support the conclusion that the Board was in error in refusing registration. There is nothing in the material that militates against the public interest in Mr Wilks remaining unregistered until he is eligible to apply for registration in December 2010. As earlier mentioned, if at that time he makes an application for registration, a decision can then be made as to whether he is fit to be registered as a medical practitioner.
As set out above, it is not appropriate for this Court to reconsider the factual findings of the Victorian Board as affirmed by the Tribunal. The issues agitated in Victoria have been finalised. I reject Mr Wilks’ attempts to reopen aspects of those findings. Mr Wilks appeared to accept this position as evidenced by his submission to this Court:
I didn’t come here to reargue the matter, this is not the jurisdiction, it’s not my opportunity to challenge what’s passed, I haven’t prepared a defence, I’ve got no new evidence, no new argument on that matter.
I consider that there was evidence that justified each of the findings made by the Medical Board of South Australia. To specifically address the terms of section 65(6)(c) of the Medical Practice Act, I do not consider that cogent reasons have been established to depart from the decision of the Medical Board of South Australia.
One further matter
The Medical Board of South Australia submitted that the appeal should be dismissed for a further reason. It was accepted that Mr Wilks’ appeal rights were preserved, notwithstanding the Health Practitioner Regulation National Law (South Australia) Act 2009 (SA), the National Law, coming into effect in 2010. However, it was said that if the appeal was successful, this Court could not make any order that would provide any relief to Mr Wilks.
The Health Practitioner Regulation National Law (South Australia) Act is a South Australian enabling act which adopted the Health Practitioner Regulation National Law (2009), commonly referred to as the “National Law”. These developments brought about, inter alia, a national system of registration and regulation of medical practitioners in Australia.
Counsel for the Medical Board of South Australia, in support of their contention, drew attention to section 287(1) of schedule 2 of the National Law, which deals with disqualifications and conditions relevant to applications for registration, and provides:
(1) This section applies if—
(a)under a corresponding prior Act or another law of a participating jurisdiction, a person’s registration in a health profession had been cancelled in that jurisdiction by an entity; and
(b)in cancelling the person’s registration the entity also made any of the following decisions—
(i)a decision to set a period during which the person was disqualified from applying for registration, or being registered, in a health profession in the participating jurisdiction;
(ii)a decision to set conditions under which the person might reapply for registration in the profession;
(iii)a decision to set conditions that must be imposed on any future registration of the person in the profession; and
(c)immediately before the participation day, the decision was still in force.
(2) From the participation day, the decision continues as if it had been made under this Law by the responsible tribunal for the participating jurisdiction.
It follows that under the terms of the National Law, the disqualification imposed by the Victorian Tribunal continues as though it had been made under the National Law. Section 52 of schedule 2 of the National Law, which deals with eligibility for general registration, provides that an individual is eligible for general registration in a health profession if:
…
(a)the individual is qualified for general registration in the health profession; and
(b) the individual has successfully completed—
(i)any period of supervised practice in the health profession required by an approved registration standard for the health profession; or
(ii)any examination or assessment required by an approved registration standard for the health profession to assess the individual’s ability to competently and safely practise the profession; and
(c)the individual is a suitable person to hold general registration in the health profession; and
(d)the individual is not disqualified under this Law or a law of a co regulatory jurisdiction from applying for registration, or being registered, in the health profession; and
(e)the individual meets any other requirements for registration stated in an approved registration standard for the health profession.
(2) Without limiting subsection (1), the National Board established for the health profession may decide the individual is eligible for general registration in the profession by imposing conditions on the registration under section 83.
[Emphasis added]

As a consequence it was contended that, even if Mr Wilks were to succeed on the appeal, he would not be able to apply for registration under the National Law. In other words, as a result of the express adoption of the orders made by the Victorian Tribunal, it was said that Mr Wilks would not be able to apply for registration anywhere in Australia until his period of disqualification had expired, resulting in the appeal being otiose.
In reply Mr Wilks sought to rely on section 42 of schedule 1 of the National Law, which he said operates to protect his existing right of appeal and that the appeal should continue under the rules of the old regime. That section, by way of subsection (2) and (3) relevantly provides:
(2)     A right of review or appeal—
(a)existing, or the subject of proceedings, before the participation day for this jurisdiction; or
(b)     arising under subclause (1),
may be exercised, or will continue to be subject to any proceedings, (as the case requires) under the relevant Act as if that Act had not been repealed.
(3)     A decision arising out of any proceedings under subclause (1) or (2) will take effect as if it were a decision under the Health Practitioner Regulation National Law (South Australia) (and the National Board for the relevant health profession will give effect to the decision accordingly).
In my view it is unnecessary to consider the full import of the Medical Board of South Australia’s submission, as Mr Wilks’ appeal fails on the merits. I have taken the view that it is preferable to fully address Mr Wilks’ appeal, and having done so it has not been necessary to resolve this contention.
Conclusion
This appeal is dismissed.