Supreme Court of WA|2005-09-23|Before: Mr J, Harper J, Marks J, Stokes AM

A Practitioner v The Medical Board of Western Australia [2005] WASC 198 (23 September 2005)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : A PRACTITIONER -v- THE MEDICAL BOARD OF WESTERN AUSTRALIA [2005] WASC 198

Jurisdiction : MEDICAL BOARD OF WESTERN AUSTRALIA

Coram : PROFESSOR B A R STOKES AM, MB BS, FRACS, FRCS, MR N J MULLANY LLB (HONS), BCL, DR F JEFFERIES MB BS, FACRRM, DR R CAPOLINGUA MB BS, MR P WALKER FIMM, FAIM

Citation : RE A PRACTITIONER AND IN THE MATTER OF AN INQUIRY TO BE CONDUCTED BY THE MEDICAL BOARD PURSUANT TO SECTION 13 OF THE MEDICAL ACT 1894 (WA) AS AMENDED

Result : Gross Carelessness, Infamous Conduct found, Practitioner reprimanded and fined on allegation of infamous conduct

Medical practitioners - Gross carelessness - Infamous conduct - Personal relationship after termination of therapeutic relationship - Challenge to finding of infamous conduct - Challenge to penalty - Whether Medical Board erred in ordering suspension

Appeal allowed in part, substituting for the penalty imposed by the respondent a reprimand and fine of $10,000

Allinson v General Council of Medical Education and Registration [1894] 1 QB 750

Bradshaw v Medical Board of Western Australia (1990) 3 WAR 322

Craig v The Medical Board of South Australia [2001] SASC 169; (2001) 79 SASR 545

Ex parte Meehan; Re Medical Practitioners Act [1965] NSWR 30

Felix v General Dental Council [1960] AC 704

Jemielita v The Medical Board of Western Australia, unreported; SCt of WA; Library No 920584; 13 November 1992

MacMillan v Pharmaceutical Council of Western Australia [1983] WAR 166

McEniff v General Dental Council [1980] 1 WLR 328

Morris v Psychologists' Registration Board, unreported; SCt of Victoria (Harper J); Library No 6208; 19 December 1997

Peeke v The Medical Board of Victoria, unreported; SCt of Victoria (Marks J); Library No 10170; 19 January 1994

Re Beckhurst, unreported; The Medical Board of Western Australia; Library No 1392-48; 18 September 2001

Srna v The Medical Board of Western Australia [2004] WASCA 198

Alroe v The Medical Board of Queensland [2004] QCA 364

Buttsworth v Walton, unreported; NSWCA; Library No 40520 of 1991; 19 December 1991

Hoile v The Medical Board of South Australia [1960] HCA 30; (1960) 104 CLR 157

In Re Frederick [1957] SASR 149

McFadzean v The Medical Board of Queensland [1964] Qd R 145

Medical Board of Queensland v Martin [1998] QSC 230

New South Wales Bar Association v Evatt [1968] HCA 20; (1968) 117 CLR 177

Re a Medical Practitioner [1995] 2 Qd R 154

Re Caravella, unreported; The Medical Board of Western Australia; Library No 1120; 22 September 2000

Re Ramsay, unreported; The Medical Board of Western Australia; Library No 1387-36; 25 August 2003

Richter v Walton, unreported; NSWCA; Library No 40309 of 1994; 15 July 1993

Roberman v The Medical Board of Western Australia [2005] WASC 45

Walters v The Nursing Board of Tasmania [2003] TASSC 122

1 COMMISSIONER KENNETH MARTIN QC: This is an appeal by way of rehearing from a decision of the respondent. The appeal was conducted in accordance with s 13 of the Medical Act 1894 (WA) as that law applied prior to the State Administrative Tribunal (SAT) amendments which were brought into effect by Act 55 of 2004 commencing 1 January 2005.

2 The reasons for decision of the respondent Board ("the Board") were published on 22 October 2004 following an inquiry which was conducted during April 2004. That inquiry was conducted in accordance with an amended notice of inquiry concerning the conduct of the practitioner. By its findings, the Board found that the practitioner had transgressed in respect of three distinct allegations concerning the care and management of his patient, and by his close personal relationship with that patient which developed following the termination of the patient/doctor relationship which had existed between them up to 15 July 2003. The respondent made findings against the practitioner of gross carelessness in respect of two allegations. On the third allegation as to the relationship, the respondent made the very serious finding of infamous conduct, contrary to s 13(1)(a) of the Medical Act 1894 (WA).

3 Having published its reasons for decision, the Board reconvened on 23 November 2004 to hear submissions in regard to the issue of penalty. On 7 December 2004, the Board published its reasons for decision in relation to penalty. In respect of the two findings of gross carelessness, the practitioner was reprimanded and fined the sum of $5000 (being one half of the maximum fine potentially applicable at the time) in respect of these transgressions (ie $10,000 in aggregate). In relation to the finding of infamous conduct, the registration of the practitioner was suspended by the Board for a period of 12 months. That suspension order has been stayed by this Court, pending the determination of his appeal.

4 Pursuant to s 13(8) of the Medical Act 1894 (as it applied prior to the SAT amendments) an appeal proceeds on the basis of a rehearing of the merits of the decision made, but upon the transcript and documentary evidence put before the Court. I refer to O 65 r 10 Rules of the Supreme Court and, generally, as to such appeals: Bradshaw v Medical Board of Western Australia (1990) 3 WAR 322 at 328 (per Kennedy J) and Pullin J in Srna v The Medical Board of Western Australia [2004] WASCA 198 delivered 27 August 2004 at [4].

5 Solely for the objective of preserving the confidentiality of the patient, the Board made orders during its inquiry prohibiting publication of the names of either the practitioner or the patient. The Board's reasons simply refer to the practitioner and the patient. At the commencement of the hearing of this appeal, I made similar orders with the same objective of preserving the patient's privacy. Accordingly, these reasons simply refer to the practitioner and to the patient, adopting the Board's approach.

6 When the Inquiry was convened for hearing before the respondent on Tuesday 6 April 2004, counsel for the practitioner and counsel assisting the Board, both attempted to agree as many facts and issues as possible. The consequence was an amended notice of inquiry which contained the (agreed) framework for the three substantive allegations raised against the practitioner. In addition, there was an agreed statement of material facts comprising some 67 paragraphs of material. In order to aid a proper comprehension of these reasons it will be necessary for me in due course to set out that material. Additionally, a limited amount of documentary evidence was also tendered to the Board, comprising essentially notes or transcripts of notes made by the practitioner in regard to his treatment of the patient. As well as all that material, I received a transcript of the proceedings before the Board comprising essentially the arguments presented plus the evidence of the patient who gave evidence in person before the Board and was cross-examined. The Board expressed some reservations about the partiality of the patient's evidence - see [80] and [97] where it said:

"[97] ... The impression the Board gleaned was that, although she did not give her evidence in an untruthful manner, she did attempt to do this during the course of her testimony."

7 The practitioner chose to not give evidence before the Board. However, no adverse inference was drawn against him by reason of that by the Board - see Board's reasons [98].

8 It is necessary for me to set out par 1 of the amended notice of inquiry:

"1. It appears to the Medical Board of Western Australia ('Board'), acting pursuant to section 13(1)(a), alternatively section 13(1)(c), of the Medical Act 1984 ('the Act') (as amended) that you, being a medical practitioner registered under the Act may have been guilty of infamous or improper conduct in a professional respect or alternatively guilty of gross carelessness or incompetency in the course of your therapeutic relationship with ... ('the Patient') in that you continued to manage the Patient's primary health care when you knew or ought to have known that your clinical judgment in relation to the Patient was impaired or was likely to be impaired.

(a) The Patient consulted you in or about January 2003 and presented with a history suggestive of severe psychological and/or psychiatric disorders, including a history of childhood sexual abuse.

(b) On or about 28 January 2003 the Patient was reviewed and assessed by Dr Alexander Tait, a Consultant Psychiatrist, who expressed his clinical impression to you in terms that included the following observation:

' ... [the patient] presents as a woman with a lot of personality strengths with severe post traumatic stress disorder and borderline personality characteristics. She suffers from chronic dysphoria underpinned by her belief that she is evil and should be dead.'

(c) In your capacity as the Patient's general practitioner you were responsible for the management of the Patient's health care in the period between in or about January 2003 and mid June 2003 and particular in her health care in the period between 30 June 2003 and 15 July 2003.

(d) Between in or about March 2003 and in or about May 2003 you formed and thereafter held beliefs of a religious or spiritual nature that included the following:

(i) God had a special purpose for the Patient and that she was the 'chosen one' and that you were 'to be her brother and she was to be your sister';

(ii) that God was guiding you in your dealings with the Patient and communicating messages to you through an angel, some of which messages related, amongst other things, to the Patient's health and her relationship with her husband;

(iii) that you had been annointed [sic] by God to baptise the Patient and that this baptism should take place in secret.

(e) You knew or ought to have known that the beliefs referred to under particular (d) impaired, or were likely to impair, your clinical judgment and you should have terminated your therapeutic relationship with the Patient as soon as you formed these beliefs."

9 On argument of the appeal there was no challenge by the practitioner to either the finding of the Board upholding this allegation, or as to the penalty imposed by the Board, namely, a reprimand and fine of $5000.

10 It will be noted that, although it had been formulated in the alternative, the actual conclusion of the Board was that of gross carelessness in respect of this first transgression. The agreed statement of material facts before the Board and which I will shortly set forth provide ample basis for the conclusion of gross carelessness made by the Board in respect of the practitioner in respect of this allegation. In particular, I highlight agreed facts 12, 13, 17, 18 and 24.

11 I must also observe at this point that although a sensible practice was adopted before the Board by agreeing facts and so, limiting the extent of contentious evidence, a consequence of that approach was to render the Inquiry somewhat lacking in the extent of factual detail one would ordinarily expect had the matter proceeded otherwise. The facts which have been identified as agreed between the parties are seen to exhibit a degree of sterility about them. A manifestation of that is that neither the Board's reasons as to liability, nor as to penalty, are explicit in terms of identifying precisely when it is contended that the practitioner should have realised that it was inappropriate to continue managing the patient's primary health care by reason of the impairment which is asserted under allegation 1. Doing the best that I can, by reference to the particulars to this allegation and to those paragraphs of the agreed statement of material facts to which I have referred, it seems apparent that the issue of concern was such that the relationship of doctor and practitioner should have been terminated early on following its initial establishment in January 2003.

12 Although not emerging with any real clarity, given the nature of the way the Inquiry proceeded before the Board, it also seems that the underlying facts which give rise to this particular transgression are bound up with and form part of the context of the two remaining transgressions. Thus, in evaluating and assessing under allegation 3 the "close personal relationship of an emotional and romantic nature" which developed between the practitioner and the patient, the unusual facts which underlie allegation 1, form part of the developmental context to the relationship.

Allegation 2: Failure to admit patient to hospital as inpatient

13 Allegation 2 of the amended notice of inquiry was in the following terms:

"2. It appears to the Board, acting pursuant to section 13(1)(a), alternatively section 13(1)(c), of the Act that you, being a medical practitioner registered under the Act may have been guilty of infamous or improper conduct in a professional respect or alternatively guilty of gross carelessness or incompetency in that in or about May 2003 you permitted the Patient to reside at your home and whilst resident in your home, you administered Pethidine and antibiotics to the Patient in circumstances in which the Patient was sufficiently ill to warrant her admission to hospital as an inpatient."

This allegation was also found to be established before the Board, albeit in respect only of the alternative averment of gross carelessness. The same penalty as was imposed in respect of the first established transgression, namely, a reprimand and a fine of $5000 was again imposed.

14 The practitioner's appeal, by grounds 9 and 10, challenges only the severity of the penalty imposed by the Board.

15 It was pointed out that the patient had in fact been very well looked after at the practitioner's home during May 2003 and that it had been the practitioner's then wife, a registered nurse, who had suggested that she and her husband care for the patient (they all being then members of the same local church group) at their home, given her overall circumstances at the time. Moreover it was said that the patient had not wished to be hospitalised at the time, was concerned for the welfare of her three children at the time (in the absence of her then husband overseas) and that her health had in no way been jeopardised by a regime of competent home treatment and nursing which it was suggested was now becoming more recognised as a legitimate treatment.

16 However, all those submissions were made to the Board. They were considered and evaluated by it in regard to its consideration of appropriate penalty - on this issue, see the Board's penalty reasons [22] - [24].

17 I pay considerable regard to the fact that the Board is a specialist Tribunal, comprising no less than three well-respected medical professionals. Notwithstanding that the regime of home treatment ultimately turned out well for the patient there can be no substantive quarrel with the essential complaint which was that the patient's interests were placed at risk by a failure to hospitalise her at the time. Exposing the patient to that risk is a serious transgression, and so, I see for myself, no error in the imposition of a reprimand and substantial fine (being one-half of the maximum) as imposed by the respondent. Accordingly, I would dismiss these grounds of appeal concerning only penalty.

Allegation 3: Permitting development of close personal relationship of emotional and romantic nature

18 This is the allegation which consumed the majority of the argument during the appeal. It is the subject of the practitioner's grounds 1 to 8 of his notice of appeal, which challenge both the substantive finding by the Board of infamous conduct by the practitioner, as well as the penalty imposed, namely that he be suspended from practice for a period of 12 months.

19 It is necessary for me to set out par 3 of the amended notice of inquiry and the relevant particulars:

"3. It appears to the Medical Board of Western Australia ('Board'), acting pursuant to section 13(1)(a) that you being a medical practitioner registered under the Act may have been guilty of infamous or improper conduct in that you encouraged, alternatively, permitted the development of a close personal relationship of an emotional and romantic nature with the Patient either:

(a) [omitted by me as irrelevant to the appeal];

(b) after the therapeutic relationship with the Patient ( ... ), had ceased, but at a time when you ought to have appreciated that there was a risk that the Patient's feelings for you were influenced by the fact that you had been her doctor.

(i) ...

(ii) ...

(iii) ...

(iv) On or about 17 July 2003, being the date of the Patient's 35th birthday, you wrote on a birthday greetings card containing the printed message:

'To my darling, my confidant, my true love the light of my life the one whom I think about constantly the one I yearn to touch or hate to be apart from the one whom my heart aches for I love your smile, you laugh, your humour, your voice, your cute face & beautiful lips, your beautiful love & nature.

I know why God chose you & it is a great / enormous honour & priviledge (sic) that God has given me. I won't let you down! Today is the first of many fantastic birthdays that will get better each year. My life is complete with you - Thank you so much for coming into it with all my love, R xxxxxx'."

20 Allegation 3, on the face of it, conveys an impression that two days after the termination of the therapeutic relationship, a card was given to the patient by the practitioner on her 35th birthday, containing terms reflecting extreme infatuation by the practitioner for the plaintiff. That was not in fact the finding of the Board. The Board's finding was that a card in such terms in fact was not given to the patient. Rather it was a different card in far less romantic terms. In fact there appeared to be some doubt about whether a card containing the language as quoted in 3(b)(iv) was ever given to the patient by the practitioner. The Board summarised the matter in its findings, as follows:

"[75]. This was not the card the Practitioner gave to the Patient at her home. Through his counsel the Practitioner said that, although he wrote this personal message on the card containing the printed message outline, he did not send or give that card to the Patient. What he wrote reflected his 'fantasy' which was not communicated to her. There was, therefore, no reciprocation at this time on the part of the Patient and, it follows, no relationship of the type the 'florid' language used by the Practitioner suggests. The Practitioner looked at what he wrote and realised that it did not represent the type of relationship he had with the Patient. He was embarrassed by what he wrote. It was for these reasons that he decided not to send the card or to give it to the Patient. What seems clear is that, although they were not communicated, the contents of the card were an accurate representation of the feelings of the Practitioner on or about 17 July 2003 - two days after he ceased to act as the Patient's doctor and two days after she left hospital. It is admitted that he had harboured feelings for her before this - he had 'developed an affinity' with and had appreciated that he was 'becoming attracted' to the Patient in early to mid-June 2003. It is against this background that their close personal relationship developed."

21 In my view, the Board's assessment of the facts surrounding the birthday card is entirely justified. Allegation 3(b) is formulated on the basis of an impugned close personal relationship after the therapeutic relationship with the patient had concluded. The grievance is one of 'permitting', rather than the practitioner 'encouraging' a close personal relationship. There can be little doubt however that the practitioner was certainly smitten with the patient in strong terms by mid-July 2003.

22 The Board does not make an express finding as to the feelings of the patient for the practitioner, within its reasons for decision. However, her evidence before the Board seemed to indicate that she did not view the practitioner from a romantic perspective until close to the time when they started "going out" in October 2003. Nevertheless, allegation 3 is relevantly formulated as one of "permitted the development", rather than the practitioner being impugned for being the instigator or pursuer of that relationship. I take cognisance of that relatively passive formulation of allegation 3, in my overall assessment of the issues for determination within the appeal.

23 Before setting out the agreed statement of material facts provided the Board to which I have earlier referred, I should say by way of introductory observation that the appeal proceeded before me upon the basis that a therapeutic relationship as between the patient and the practitioner had ceased only as at 15 July 2003. This was so, notwithstanding an earlier attempt by the practitioner in May 2003, to terminate the therapeutic relationship, in the aftermath of the patient's stay (with her children) and treatment at the practitioner's home (being the subject of allegation 2, with which I have already dealt). It will be seen from the statement of agreed facts that the practitioner's first attempt in May 2005 to end the therapeutic relationship, was not successful.

24 The appeal proceeded before me on the basis that although there had developed between the practitioner and the patient a relationship of friendship (which itself had led to the unsuccessful attempt in May 2003 of the practitioner to terminate and finally the actual termination of the therapeutic relationship on 15 July 2003), that the "close personal relationship" of an "emotional and romantic nature" with the patient, impugned under allegation 3 as having been "permitted" to develop by the practitioner, did not actually commence until sometime in October 2003. It was at this time, I was told, that the patient and the practitioner began "going out" together.

25 Furthermore, although it was alleged in the original notice of inquiry that sexual relations had commenced between the patient and the practitioner in early July 2003, that averment was removed from the amended notice of inquiry. The matter proceeded before the Board upon the basis, as found in [81] of the Board's reasons, that in November 2003 the practitioner and the patient began to live in the same house (under a boarding arrangement whereby the practitioner stayed overnight two nights a week in a separate room of the patient's rented premises at Port Kennedy). It was only in mid-February 2004 that the practitioner and the patient commenced sexual relations and began to live as "husband and wife".

26 I was told at the appeal that the practitioner and the patient were married on 18 November 2004, this, of course, being five days before the hearing of the penalty phase of the Inquiry before the Board.

27 It is now necessary for me to set out the agreed statement of material facts, which is also to be found at [8] of the Board's reasons for decision:

"1. [The Practitioner] is a registered medical practitioner. For a number of years he has practised as a general practitioner from [a particular medical centre]. [The Practitioner] was a member of the Seventh Day Adventist Church until October 2003.

2. The Patient first consulted the [P]ractitioner at [the medical centre] on 7 January 2003.

3. On 9 January 2003 [the Practitioner] was consulted by the Patient again. The Patient was the wife of a pastor of the Seventh Day Adventist Church. The Patient recounted a history of post traumatic stress disorder. Amongst other details, the Patient recounted that she had been severely abused as a child and had been raped about 2 years previously. The Patient also recounted that she had attempted suicide several times.

4. The [P]atient was born on 17 July 1968. When she first consulted the [P]ractitioner, she was 34 years of age. The [P]atient told the practitioner that she was a member of the Seventh Day Adventist Church ('the Church') and was married to a pastor in the Church, ... , to whom she had been married for 14 years. The [P]atient told the practitioner that she and her husband had two natural children, daughters then aged 13 and 9, and a foster child, a boy aged 3.

5. The [P]atient told the [P]ractitioner that she was severely depressed and was suicidal. She gave the [P]ractitioner a harrowing account of sexual and physical abuse she had suffered as a child and teenager growing up as the second youngest in a family of 9 children in Albany. She said that she and her husband had married in Albany in 1988 but, in 1991, had moved to New South Wales where her husband had studied to become a pastor in the Church. The [P]atient told the [P]ractitioner that her husband became a pastor in the church in 1995 and he and she were then transferred to Port Augusta in South Australia where her husband was the pastor of the Church. The [P]atient said that her husband was subsequently transferred to Whyalla and then to Adelaide before accepting a transfer to Rockingham at the end of 2002. She said that she had not been particularly happy about coming back to Western Australia because it brought back the unhappy memories of her childhood which she had been able to block from her mind during the period of 11 years during which she was in New South Wales and South Australia. However, she said that her husband had been happy to accept the transfer because it brought him closer to his aging parents in Bunbury.

6. The [P]atient told the practitioner that her depression and suicidal tendencies, from which she had suffered previously, had become worse when she returned to Western Australia. She complained of nightmares and flashbacks during which she sweated and then froze and experienced a shortness of breath. The Patient told [the Practitioner] that she had been raped two years ago.

7. [The Practitioner] saw the Patient again on 16 January 2003.

8. [The Practitioner] referred the Patient to Dr Alexander Tait, a consultant psychiatrist employed by the Department of Health as the senior consultant in adult psychiatry at the Rockingham Kwinana Mental Health Service, to interview the patient at [the medical centre] on 24 January 2003. Dr Tait interviewed the [P]atient in the [P]ractitioner's surgery and the [P]ractitioner also attended at the beginning and end of the interview. Dr Tait reviewed the Patient on or about 28 January 2003 and set out his views on the Patient's condition and gave certain management advice in a letter dated 28 January 2003.

9. Dr Tait diagnosed the patient to be suffering from post traumatic stress disorder as a result of her severe childhood sexual abuse. He also considered that she had borderline personality characteristics.

10. Dr Tait provided the [P]ractitioner with a report dated 28 January 2003 in which he recorded those diagnoses. Dr Tait believed that the [P]atient required therapy and acknowledged that she was reluctant to see a therapist due to opposition from her husband. In his report, Dr Tait supported a regime whereby the [P]atient would consult the [P]ractitioner once a week for counselling. He also confirmed that she would continue to take citalopram and mirtazapine, which had been prescribed for her before she had seen either the practitioner or Dr Tait: Dr Tait's report is exhibit 4.

11. [The Practitioner] saw the Patient on 6 February, 7 February, 17 February, 18 February and 24 February 2003. The consultations were long consultations, that which took place on 6 February lasted 1 hour, the consultation on 7 February lasted 1½ hours and the consultation on 18 February lasted 1½ hours. Throughout February 2003, the [P]atient continued to be depressed and had distressing flashbacks to her childhood.

12. During March 2003, in the Rockingham Family Hospital, the [P]ractitioner observed the [P]atient to speak, on occasions, in a manner and in a voice very different from her own manner and voice. On those occasions, the [P]atient referred to herself by names other than her own name and said things which suggested that she had been 'chosen' by God and that she was a 'messenger' of God. On one of those occasions, the [P]atient told the [P]ractitioner that he had been anointed by God to baptise her and asked the [P]ractitioner to baptise her.

13. The [P]ractitioner was confused by these developments. He though that there might be a clinical reason for the [P]atient's behaviour and that it might be related to the post traumatic stress syndrome which had been diagnosed by Dr Tait. However, the [P]ractitioner was at that time and had been for many years a practising Seventh Day Adventist with fundamentalist beliefs and considered also that there might be a genuine religious or spiritual basis for the [P]atient's behaviour and that what she was saying might be true.

14. On 27 February 2003 the Patient consulted [the Practitioner] and reported that she had taken an overdose. [The Practitioner] induced the Patient to vomit and arranged for the patient to be admitted to the Rockingham Family Hospital that day ('the Family Hospital') where she remained until 7 March 2003.

15. In early March 2003, the Patient spoke by telephone to [someone] who was also a pastor in the Church, and who had counselled the [P]atient when she was in Adelaide. [This] Pastor told the Patient that her behaviour was a manifestation of a condition known as multiple personality disorder and was not genuinely religious or spiritual. The Patient communicated that to the [P]ractitioner.

16. On 7 March 2003 the Patient was discharged from the Rockingham Family Hospital into the care of her family.

17. In early March 2003, he performed a 'baptism' of the [P]atient at the beach in front of his house in Port Kennedy.

18. After her time in the Family Hospital and the 'baptism' performed by the [P]ractitioner, the [P]atient improved considerably in her outlook. Her 'alternative personality' episodes occurred much less frequently and she no longer said she was evil or that she should be dead. She was much happier in her outlook generally.

19. During the time she had been consulting the [P]ractitioner about her depression and suicidal tendencies, the [P]atient had also told him that she had suffered for many years from dysmenorrhoea and menorrhagia. She told the [P]ractitioner that a gynaecologist whom she had consulted in Adelaide had considered the possibility of her undergoing a total abdominal hysterectomy. She told him that she had undergone endometrial ablation on two occasions while she was in Adelaide.

20. The Patient was seen by [the Practitioner] on 19 March 2003 and he made a note to the effect that since admission the Patient had, 'no voices or suicidal thoughts' and was 'off all medication'.

21. [The Practitioner] saw the Patient on 26 March 2003 and referred the Patient to Dr Linda Wong, a consultant obstetrician and gynaecologist, for a hysterectomy to be performed on the basis of [his] diagnosis of dysmenorrhoea and menorrhagia. Dr Linda Wong first saw the Patient on 3 April 2003 and recommended that she undergo the hysterectomy. Dr Wong caused the patient to be admitted to the St John of God Hospital, Subiaco and, on 9 April 2003, performed the hysterectomy with the assistance of the [P]ractitioner. Following the operation, the [P]atient suffered a secondary infection.

22. [The Practitioner] also saw the Patient on 1 April 2003. The Patient complained of bruising to her right flank and right forearm.

23. The Patient was seen by [the Practitioner] on 2 April 2003, 7 April 2003 and 8 April 2003.

24. Between on or about 5 March 2003 and 15 April 2003 [the Practitioner] made a number of handwritten notes recording aspects of his interaction with the Patient and beliefs of a spiritual nature that he had formed in relation to her. A transcript of these notes will be provided to the Board.

25. The [P]atient was discharged home to her family on 20 April 2003. However, in mid-May 2003, her husband was scheduled to leave for Europe where he was to spend 6 weeks on a Bible study tour. By mid-May 2003, the [P]ractitioner's wife, ..., had become very friendly with the patient. [She], like the practitioner, was also a member of the Church and initially contacted the patient as a member of the Church community to provide her with friendship and support at a difficult time and when she had no other friends in the Rockingham area, having only just arrived from Adelaide. During April and May 2003, [the Practitioner's wife] and the [P]atient would often go out for coffee and would visit each other at home.

26. The patient moved in with the [P]ractitioner and [his wife], in mid-May 2003. she was very ill [sic]. She was dehydrated and was vomiting. At this time the Patient was sufficiently ill to warrant her admission to hospital as an inpatient. Details of the drugs administered to the Patient in this period may be inferred from the Health Insurance Commission's prescribing records, which are exhibit 3. She was also suffering considerable abdominal pain.

27. The [P]ractitioner and [his wife] nursed the [P]atient at their home, with the [P]ractitioner prescribing and administering oral antibiotics for her infection and intramuscular pethidine for her pain. Details of the drugs administered to the Patient in this period may be inferred from the Health Insurance Commission's prescribing records, which are exhibit 3. The [P]atient recovered significantly. She returned to her home in mid-June 2003, shortly before her husband returned from overseas.

28. During the time that the [P]atient stayed at the [Practitioner's] home, the [P]ractitioner, [his wife] and their daughter, ..., who was then 17 years of age, became very friendly with the [P]atient. In fact, the [P]ractitioner found that he had developed an affinity with the [P]atient and was becoming attracted to her. He could see that, in those circumstances, he would have to terminate his therapeutic relationship with the [P]atient and advise her to see another doctor if she required medical advice in the future. He told the Patient in early to mid June 2003 and she agreed that, after she left his home, she would see a doctor other than him.

29. Between the time she left the [Practitioner's] house and returned home and 30 June 2003, the [P]atient did not consult the [P]ractitioner. Nor did she consult any other doctor. By 2003, the [P]ractitioner and [his wife] had been married for 29 years. They had married when the [P]ractitioner was a 5th year medical student at the University of Western Australia.

30. The[ir] ... marriage had not always been a happy one. On several occasions, they had separated for a number of days after having disagreement over various matters. By March 2003, the [P]ractitioner did not think that he and [his wife] had a great deal in common and considered that theirs was no longer a loving relationship. He was considering separating from [his wife] but did nothing about it due to the pressure of his work. At the end of June 2003, the [P]ractitioner confronted [his wife] with his concerns about their relationship. They had an argument about the matter and [his wife] got into her car and drove off, ultimately driving to Augusta and staying there the night. When she returned the next day, her daughter, ..., gave her a note from the [P]ractitioner saying that he wanted her to move out. She moved out shortly after that and went to stay with her sister in Korea for several weeks.

31. By 2003, the [P]atient had been married to her husband for 15 years. However, for much of that time, he had subjected her to considerable verbal and physical abuse. She had considered leaving him in the past and had undergone counselling about that matter. Her husband always refused to participate in any counselling.

32. When the [P]atient's husband returned from overseas, in late June 2003, the verbal and physical abuse resumed. That caused the [P]atient to become anxious and quite ill.

33. On the evening of 30 June 2003, the [P]atient experienced severe abdominal pain and vomiting attacks while at home. Her husband was not there at the time. Her teenage daughter became concerned about the [P]atient's condition and telephoned the [P]ractitioner. He went to see her as an after hours emergency and caused her to be admitted to the Family Hospital that evening. He reminded her that he should not see her any more because she was a family friend and asked her if she was agreeable to being seen by Dr John Cameron, an associate at [the medical centre]. She said she was: see the [P]ractitioner's note on the Inpatient Progress Sheet of the Family Hospital - Inquiry Book, Tab 7, page 15.

34. On 30 June 2003 [the Practitioner] recorded in the inpatient progress notes of Rockingham Family Hospital that the Patient had experienced the onset of colicky pain in her abdomen '+ V, s, today' (presumably vomiting). [The Practitioner] recorded in the notes a previous medical history that included a gastric ulcer and a hysterectomy and post operative infection. The notes written by [the Practitioner] included a note to the effect that he would hand over the Patient's care to Dr Cameron 'tomorrow' as the Patient was a family friend.

On 1 July 2003, the [P]ractitioner spoke to Dr Cameron about the [P]atient. [The Practitioner] said to Dr Cameron that the Patient was a family friend and that he would rather not be her doctor. He told Dr Cameron that the Patient was going through a marriage break up and was in a grieving process and was in 'shock' and because of this she was not eating or drinking. [The Practitioner] also told Dr Cameron that the Patient had recently had a hysterectomy and had some post operative complications including abdominal pain. Dr Cameron told [the Practitioner] that as he had a young baby he, Dr Cameron, did not wish to be on call after hours and that he did not want to be responsible for the Patient's medical care if she needed more complex medical input than just respite nursing care. An arrangement for shared care was reached between Dr Cameron and [the Practitioner] to the effect that Dr Cameron would be responsible for the Patient during weekdays and [the Practitioner] would take over responsibility after hours and on the weekends.

35. Dr Cameron first attended the [P]atient at approximately 12.40pm on 1 July 2003. The [P]atient remained in the Family Hospital, being treated with bed rest and being administered maxolon and pethidine, until 2 July 2003.

36. On 2 July 2003 [the Practitioner] arranged for the Patient to be transferred from the Rockingham Family Hospital to the Rockingham Kwinana District Hospital ('RKDH') because the Patient was unhappy with the nursing care that she was receiving at the Rockingham Family Hospital.

37. [The Practitioner] arranged for the Patient to be admitted to the RKDH under Dr Cameron's name.

38. [The Practitioner] saw the Patient on the evening of 2 July 2003.

39. Dr Cameron saw the [P]atient at approximately 1pm on 3 July 2003.

40. The Patient was given IV fluids and drugs as charted in the medication chart.

41. The [P]atient remained in the District Hospital under the care of Dr Cameron and the [P]ractitioner until 6 July 2003, when she was discharged.

42. On 8 July 2003, in her matrimonial home, the [P]atient was subjected to physical abuse by her husband. She and her children then left the matrimonial home with the assistance of two senior members of the Church and she took her children to a friend's home for the night.

43. As a result of the physical abuse to which she had been subjected and the anxiety of leaving the matrimonial home, the [P]atient again experienced severe abdominal pain and vomiting attacks. She became so ill that, later that same evening, one of the Church members who had assisted her to leave the matrimonial home took her to the District Hospital where she was admitted under the care of Dr Cameron. The [P]ractitioner attended her later that evening and Dr Cameron saw her the following day.

44. On 8 July 2003 the Patient was readmitted to the RKDH. The admission is recorded under Dr Cameron's name. Dr Cameron was unaware that the Patient was being admitted under his name until he was telephoned by nursing staff at the RKDH and told that [the Practitioner] was there and was readmitting the Patient under his name. Dr Cameron agreed that [the Practitioner] could admit the Patient under his name.

45. The nursing staff made an entry in the integrated progress notes at 1800 hours on 8 July 2003 recording details of the Patient's condition on her admission. The notes record that the Patient had suffered from abdominal pain and vomiting and appeared to be very unhappy. The Patient reported that she had split up from her husband. An entry in the progress notes made by [the Practitioner] records that the Patient had separated from her husband and was suffering from stress and the recurrence of abdominal pain and vomiting and should be treated with IV fluids and that visitors should be restricted and that she should be reviewed by a social worker. The Patient reported that she had not eaten for 3 days.

46. On the morning of 9 July 2003 [the Practitioner] visited the Patient and charted the Patient for Tramal 200mg.

47. The Patient was reviewed by Dr Cameron at approximately 1pm on 9 July 2003.

48. On 11 July 2003 the Patient was reviewed by Dr Cameron who was concerned about the risk that the Patient might self harm.

49. Dr Cameron recorded in the notes on 11 July 2003 that he had discussed the Patient with [the Practitioner] and that he ([the Practitioner]) would take over the care of the Patient. Dr Cameron had no further involvement in the Patient's care. [The Practitioner] continued to care for the Patient until she was discharged on 15 July 2003.

50. The [P]atient remained as an inpatient at the District Hospital until 15 July 2003, when she was discharged by the [P]ractitioner. She did not return to the matrimonial home but moved to rented accommodation in Warnbro, with her elder daughter, ..., who was then 13, and her foster son, ..., who was then 4. Her younger daughter, ..., who was then 10, remained with the husband at the matrimonial home.

51. After the [P]ractitioner discharged the [P]atient from the District Hospital on 15 July 2003, he did not see her again professionally.

52. Between 16 and 28 July 2003, the [P]ractitioner maintained contact with the [P]atient.

53. When the [P]ractitioner arrived at [the medical centre] later that morning to commence work, and completely without warning, he was met by Dr Tait and two female mental health officers employed by the Western Australian Department of Health. Dr Tait told him that he was to be involuntarily admitted to the Mental Health Unit at Armadale Hospital for assessment. Dr Tait told him that the admission was certified by [a certain doctor], an associate at [the medical centre], and the wife of [another doctor], the other proprietor of [the medical centre]. The [P]ractitioner of course knew [the doctor] but had never been examined or interviewed by her professionally.

54. The [P]ractitioner was admitted to Armadale Hospital on 28 July 2003 pursuant to section 26 of the Mental Health Act as an involuntary patient and remained there for 12 days until 8 August 2003, when he was discharged.

55. The [P]ractitioner returned to clinical practice at [the medical centre] on 1 September 2003.

56. The Patient and [the Practitioner] have lived in the same house since in or about November 2003.

57. On 27 August 2003, the Board issued a notice of inquiry giving notice to the [P]ractitioner of its intention to inquire into the question of whether the [P]ractitioner may be suffering from mental illness to such an extent that his ability to practise was or was likely to be affected.

58. That inquiry came on for hearing on 9 September 2003. Without hearing any evidence and with the consent of the [P]ractitioner, the Board on that day ordered that the practitioner be examined by Dr Winston Chiu, a consultant psychiatrist nominated by the Board, and by Dr David Lord, a consultant psychiatrist nominated by the practitioner, and that the Board receive reports from Dr Chiu and Dr Lord as to the [P]ractitioner's fitness to practise. The Board also directed the [P]ractitioner to submit a list of names of medical practitioners from which the Board could select an appropriate practitioner to monitor the [P]ractitioner's clinical practice.

59. The [P]ractitioner was examined by Dr Chiu on 13 and 17 September 2003. He was examined by Dr Lord on 20 August, 4 September, 18 September and 24 September 2003. Dr Chiu sent the Board a report dated 24 September 2003 (Tab 17 in the Inquiry Book) and Dr Lord sent the Board a report also dated 24 September 2003 (Tab 18 in the Inquiry Book).

60. In his report, Dr Chiu said that, in his opinion, the [P]ractitioner was not suffering from a psychiatric disorder but was suffering from adjustment disorder with mixed disturbance of emotions and conduct. He considered that the practitioner was fit to practise. In his report, Dr Lord expressed similar views.

61. On 25 September 2003, the Board nominated Dr Andrew Motherwell, an associate at [the medical centre], to monitor the [P]ractitioner's clinical practice. Dr Motherwell accepted the Board's nomination.

62. After his discharge from Armadale Hospital on 8 August 2003, the [P]ractitioner resumed his contact with the [P]atient. In October 2003, they began 'going out' as a couple.

63. In November 2003, the [P]atient moved from the rented accommodation in Warnbro, which she had occupied since being discharged from the District Hospital on 15 July 2003, to other rented accommodation in Port Kennedy. By then, the [P]ractitioner had moved from his former matrimonial home, where his wife and 22 year old son were by then living, and was living in an apartment which he owned in Fremantle. When the [P]atient moved into her new accommodation, the [P]ractitioner made an arrangement with her whereby he stayed at her home, in a separate room, two nights per week.

64. In November 2003, when the [P]atient travelled to Adelaide to allow her foster son to visit his father, the [P]ractitioner went with her. That visit took about 3 days.

65. The [P]atient and the [P]ractitioner have lived together in Port Kennedy since February 2004.

66. In March 2004, the [P]ractitioner and the [P]atient consulted a clinical psychologist, Dr Bill Douglas, for advice about their relationship and to obtain his view as to whether it was based on the [P]atient's dependency on the [P]ractitioner as her former doctor.

67. The [P]atient's husband commenced proceedings for dissolution of their marriage in early April 2004 and the [P]ractitioner intends to commence proceedings for the dissolution of his marriage shortly. He and [his wife] agreed upon a settlement of the matrimonial property on 31 March 2004."

28 Having set out these agreed facts I will now make some general observations about the nature of the inquiry before the Board. First, the formulation of the third allegation against the practitioner clearly indicates that the impugned relationship is one which occurred after the cessation of the therapeutic relationship. That is an important distinction between the present case and many instances of professional misconduct collected in the authorities concerning medical practitioners who engage in inappropriate relationships (usually sexual relationships) with patients. Of course, the distinction in itself is not determinative in regard to the issue of professional misconduct, since 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.

29 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.

30 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. The present case, however, is not as formulated, a case raising any allegation of an improper sexual relationship between a medical practitioner and a former patient. The Board said this at [48] of its reasons:

"[48]. It is accepted that the close personal relationship which developed between the Practitioner and the Patient after the termination of their therapeutic relationship was of an 'emotional and romantic' character. An allegation that it was, at the material time, also of a sexual nature was abandoned at the commencement of the Inquiry. The absence of a sexual component is a significant fact which distinguishes the wrongdoing of the Practitioner from the misconduct involved in other inquiries before this Board concerning inappropriate personal relationships between doctors and patients and former patients. [Footnote citations omitted.]"

31 Notwithstanding then that a sexual relationship did eventually develop in mid-February 2004, the Board's evaluation under allegation 3, is and must be confined to only the rather more unique factual circumstance of a non-sexual relationship, as between a medical practitioner and a former patient.

32 Third, I repeat that although allegation 3 was framed in the alternative against this practitioner in regard to him having "encouraged, alternatively permitted the development of a close personal relationship of an emotional and romantic nature with the patient ... ", it does not seem to be the case that the Board ever made a finding of 'encouragement', as against the practitioner. Indeed, the appeal was argued before me solely upon the basis of the alternative formulation, namely that the practitioner had "permitted" the development of the close personal relationship. That, again, is a point of factual differentiation, as between some other professional misconduct cases, where a practitioner has been seen to be the initiator, pursuer, or promoter of an improper personal relationship. That is not the case here, and the practitioner's position must be evaluated in his favour, accordingly.

33 Fourth, subpar (b) of allegation 3, in accepting that the close personal relationship occurred after the therapeutic relationship with the patient had ended, focuses upon what must ultimately be characterised as an error of judgment by the practitioner. That error of judgment relates to the practitioner's failure to appreciate "that there was a risk that the patient's feelings for you were influenced by the fact that you had been her doctor." The practitioner is challenged for his failure to appreciate a "risk" concerning "feelings" of his former patient. Subjective risk assessment by humans is generally problematic. Problems are likely to be exacerbated in the area of judgement once one enters the realm of assessing an intangible such as "feelings" for another person, and then the evaluation of a potential for "feelings" to be "influenced" by the historic fact of a prior doctor/patient relationship.

34 Fifth, whilst the authorities demonstrate that a sexual relationship between a medical practitioner and an existing patient will never be countenanced, the position is less absolute as regards a sexual relationship with a former patient. It is clear that in Western Australia there is no absolute prohibition laid down by the medical profession against such a sexual relationship with a former patient. I was told during the course of the appeal that the Medical Board considered the issue to be one which was a matter for judgment to be applied in the particular circumstances of each case. Accepting that the nature of medical treatment does vary from case to case, I can understand the rationale for that. Nevertheless, in the absence of a guideline to general practitioners laying down clear prescriptions concerning sexual relationships with a former patient (contrast the position in New Zealand - see New Zealand Medical Council Policy Statement on Sexual Relationships with Former Patients 1996, referred to in the Article, Sexualization of the doctor-patient relationship: is it ever ethically permissible? by K.H. Hall in (2001) Family Practice Vol 18, No 5; Oxford University Press, the required decision is again left as a matter for judgment, rather than being a black and white decision. That scenario of course provides a significant potential for misjudgements to be occur.

35 Sixth, when considering relationships with former patients of a non-sexual character (as the position before the Board here) the same uncertainties in terms of a practitioner needing to make a subjective judgement call about where to draw a line will apply. Unfortunately, however, the uncertainty of assessment may be magnified, when one is evaluating a unique personal fact relationship, other than a sexual relationship.

36 Seventh, it is apparent when one examines the 67 paragraphs of agreed facts put before the Board that there is very little depth of primary fact available to be assessed, in the context of evaluating this impugned "close personal relationship of an emotional and romantic nature". In terms of evaluating events after 15 July 2003 (see agreed fact 51) one is essentially left with the agreed facts in pars 62, 63 and 64 and what is identified in par 52, namely that "between 16 and 28 July 2003, the practitioner maintained contact with the patient". An external assessor of an impugned non sexual personal relationship does not derive much insight to a personal relationship from being told merely by agreed fact 62 that "in October 2003 they began 'going out' as a couple".

37 Eighth, in a context where allegation 3 impugns this practitioner's lack of judgement for permitting the close personal relationship to develop with his former patient and for failing to appreciate that the patient's feelings for him might be influenced by the prior therapeutic relationship, one must weigh to a degree the actual personal circumstances of the medical practitioner at the time the alleged errors of judgment were made. In that context, the facts identified in agreed facts 52, 53 and 54, relating to this practitioner's involuntary incarceration during July 2003, pursuant to s 26 of the Mental Health Act, as an involuntary patient for 12 days until 8 August 2003, cannot be ignored. Recognising that there is an overall lack of primary detail here, it is nevertheless not out of place for me to observe that 12 days involuntary incarceration for this practitioner in the Mental Health Unit at Armadale Hospital for assessment, must have been a very difficult time for him. Likewise, the practitioner (see agreed fact 63) had separated from his wife in November 2003, he having left their matrimonial home and moved to an apartment in Fremantle. His personal circumstances at times he is being called upon to make proper professional judgements as to feelings, were unsettled.

38 Ninth, a rather unique feature of the present case, in contrast to some instances of disciplinary action against medical practitioners for improper or infamous conduct, (particularly sexual cases), is the absence of any evidence as to damage being caused to the physical or mental wellbeing of this patient, by reason of the impugned relationship. Most reported precedents either by disciplinary tribunals or by courts, seem to relate to professional misconduct concerned with exploitation of a patient arising out of a sexual relationship, either during the therapeutic relationship, or immediately thereafter. The only case to which I was referred concerning an improper relationship, without a sexual component, was that of Craig v The Medical Board of South Australia [2001] SASC 169; (2001) 79 SASR 545. However, in that case it was clear that a degree of distress and mental suffering had been caused to the patient, arising out of the misconduct of her psychiatrist. In contrast to that situation, there is no evidence in the present case of physical or mental harm being caused to this patient, or of any distress, anguish or upset inflicted upon her by this practitioner. That consideration alone, of course, is not determinative, but in my view, it is relevant and must be weighed as to the issue of the correct characterisation of the impugned relationship as either infamous conduct, or at a level of professional misconduct. Of course, it is also a circumstance independently relevant to the question of the imposition of appropriate penalty, if a transgression is established.

39 Tenth, in the context of these general observations, arises the respective ages and maturity of the practitioner and the patient concerned. Again, a good number of the decisions of medical tribunals and courts considered by the Board and cited to me, concern exploitation of young people, particularly young women by an older medical practitioner either during or following cessation of a therapeutic relationship. Circumstances of exploitation of young people by a trusted (older) medical professional are particularly odious. In the present case however, it is relevant to note, although again obviously not determinative in itself, the respective middle ages and significant life experiences of both this practitioner and his patient.

40 Next, and obviously relevant to the issue of penalty, is the unblemished record over a significant period (27 years) of this general practitioner, in private practice. Eloquent testimonials from sources both professional and private were provided to the Board on his behalf, recording a long and distinguished career in private practice, with a history of demonstrated concern for many patients treated by him over the years. The Board said it took account of this when delivering its reasons as to penalty.

41 Lastly, agreed fact 66 refers to the report of a clinical psychologist, Dr Bill Douglas arising out of a consultation in March 2004 concerning this relationship, and the question of whether it had indeed been grounded upon the patient's dependency upon the practitioner, as her former doctor. The Board's reasons at par 110 assess Dr Douglas' report as of "minimal assistance in assessing the position during the material period but to the extent that it might be relevant has been taken into consideration". Part of what the Board quoted from Dr Douglas' opinion regarding the state of mind of the patient as at the end of March 2004, said:

"Results in general reflect the profile of a person who is currently not depressed or anxious. It does not suggest any degree of emotional vulnerability, in the form of dependency. It appears to me that [the Patient] is in a position to make a reasoned and balanced judgment about entering into this relationship. [She] performed well on the MMPI (Minnesota Multiphasic Personality Inventory) considering what she has been through in the last 12 months."

Dr Douglas' report constituted one of the few pieces of additional independent insight to this relationship beyond the agreed facts and apart from the evidence given to the Board by the patient herself. There was a need to evaluate all that evidence from a perspective of assessing whether the patient had been hurt, harmed or distressed by the close personal relationship. Evaluating the evidence, the answer to that enquiry must be that there was no evidence of harm or distress. That to my mind, is a relevant consideration and a distinguishing feature from the many tribunal and court decisions concerning improper relationships between medical practitioners and their patients.

The findings of the Board in regard to allegation 3 on the issue of infamous conduct over and above a potential finding of professional misconduct

42 It is important to appreciate at the start, the limited scope of the challenge in this appeal to the Board's conclusions as regards its finding of infamous conduct and penalty. This emerges from grounds 7 and 8 being the practitioner's key grounds of appeal, which I now set out in full:

"7. The respondent erred in fact and in law in finding that the appellant was guilty of infamous conduct in a professional respect by permitting the relationship to develop at a time when he ought to have appreciated that there was a risk that the patient's feelings for him were influenced by the fact that he had previously been her doctor. The respondent should have found that, by permitting the development of the relationship in those circumstances, the appellant was guilty of improper conduct in a professional respect. (my emphasis)

8. The respondent erred in ordering, in respect of the finding of infamous conduct, that the appellant be suspended from practice for a period of 12 months which was a penalty which was:

(a) in all the circumstances, grossly excessive;

(b) disproportionate to the finding made and the evidence of the appellant's conduct;

(c) imposed without having due or any regard to or without according any or any sufficient weight to:

(i) the fact that the appellant had been practising for 27 years and had never previously been the subject of an inquiry by the respondent under the Act;

(ii) the exemplary nature of the appellant's previous professional career in various parts of Australia and overseas;

(iii) the fact that the finding of infamous conduct was not related in any way to the appellant's clinical practice;

(iv) the significant contribution which the appellant had made to the provision of health care to the Rockingham/Kwinana community for a period of almost 15 years;

(v) the testimonials provided to the respondent by other medical practitioners and patients."

43 It will be seen therefore, that the premise of the appeal, is an acceptance by the practitioner that he was indeed guilty of improper conduct in a professional respect in regard to the development of the personal relationship, the subject of allegation 3. Furthermore, it was submitted in argument to me by counsel for the practitioner, that the appropriate penalty that should have been imposed for what was accepted as improper conduct, was a fine of the maximum amount of $10,000 and a reprimand. That is to be contrasted with the actual penalty imposed by the Board, namely, 12 months' suspension from practice and a reprimand.

44 As put to me by counsel for the practitioner in regard to the submission concerning ground 8 of the appeal:

"We say that the appropriate penalty in its place would be a reprimand and a fine of the maximum amount of $10,000, or alternatively a period of lesser suspension." (Appeal TS49.)

45 In due course, I will deal with remaining grounds 1 to 6 of the practitioner's appeal, however, it must be said that they are essentially subsidiary to the aforementioned primary challenges of the appeal against first, a characterisation of infamous conduct, and then, against the penalty imposed, under these grounds 7 and 8 of the appeal.

The Board's reasons for decision of 22 October 2004

46 The Board's reasons for decision are comprehensive. Quite properly they set out at some length the parties' respective contentions. As regards allegation 3, the agreement of the parties to an amended notice of inquiry dated 6 April 2004 was obviously significant to the Board. It enabled the Board, at the commencement of its consideration of this allegation, to record (see Board's reasons [32] and [33]):

"[32] It is accepted that the Practitioner permitted the development of a close personal relationship of an emotional and romantic nature with the Patient after the therapeutic relationship with her had ceased but at a time when he ought to have appreciated that there was a risk that the Patient's feelings for him were influenced by the fact that he had been her doctor. All of the facts particularised in relation to this allegation are admitted.

[33] The Board finds that the facts particularised in paragraph [3(b)] of the Amended Notice of Inquiry have been proved by reference to the requisite standard."

47 The Board's reasons then summarise the submissions of the parties. In the process the Board dealt with the significance under s 13(1) of the Medical Act 1894 (as it then read) of a vital legislative distinction in subpar 13(1)(a) as between infamous conduct and improper conduct of a medical practitioner (in a professional respect). It is not contended by the practitioner by any of his grounds of appeal that the Board erred in its appreciation of the precise legal meanings of those terms as used by the legislation. At [37] of its reasons the Board set out its understanding of infamous conduct as meaning serious misconduct (in a professional respect) and referring to well known leading case authorities, namely, Allinson v General Council of Medical Education and Registration [1894] 1 QB 750 per Lopes LJ at 763; Felix v General Dental Council [1960] AC 704 at 720 - 721 per Lord Jenkins and, in the Privy Council, Lord Edmund-Davies in McEniff v General Dental Council [1980] 1 WLR 328 at 332, and in the Australian context the decision of Sugarman J in Ex parte Meehan; Re Medical Practitioners Act [1965] NSWR 30 at 35 - 36.

48 In speaking of s 25 of the (Dental) Act UK 1957 Lord Jenkins in Felix (supra) referred to the adjectives "infamous" and "disgraceful" as terms "denoting conduct deserving of the strongest reprobation, and indeed so heinous as to merit, when proved, the extreme professional penalty of striking off." His Lordship also spoke of making good such a charge by reference to (generally speaking):

" ... some element of moral turpitude or fraud or dishonesty in the conduct complained of, or such persistent and reckless disregard of the dentist's duty in regard to records as can be said to amount to dishonesty for this purpose."

On the issue of moral turpitude however, Sugarman J in Ex parte Meehan (supra) was less emphatic. He said:

"In short, whether moral turpitude is a necessary ingredient of 'infamous conduct in any professional respect' is a matter on which no general rule can be laid down, the answer being dependent upon the nature of the conduct which is in question in each instance."

49 The Board here also observed (correctly), see reasons [44] of the Board, that, in contrast to infamous conduct, that:

"[44] Improper conduct in a professional respect, is misconduct which falls short of infamous conduct. It is constituted by something less than serious misconduct but is, nevertheless, conduct which would reasonably be regarded as improper by professional colleagues of good repute and competency."

As authority, the Board referred again to Allinson (supra) at 763 and MacMillan v Pharmaceutical Council of Western Australia [1983] WAR 166 at 174 - 175.

50 Section 13(1)(a), in dealing with infamous or improper conduct in a professional respect, is to be contrasted with the remaining provisions of s 13(1) dealing with the other species of professional infringement, including relevantly, s 13(1)(c) concerning a medical practitioner who is guilty of gross carelessness or incompetency.

51 Section 13(3) of the Medical Act 1894, as it applied at the time, read:

"3. Where after an inquiry the Board is satisfied in relation to a matter referred to in subsection (1)(a), (b), (c) or (d) with respect to a medical practitioner the Board may by order impose any one or more of the following penalties, namely -

(a) remove the name of the medical practitioner from the register;

(b) suspend the registration of the medical practitioner for such period not exceeding 12 months as is specified in the order;

(c) a fine not exceeding $10,000;

(d) a reprimand."

52 The base distinction in s 13(1)(a), as it formerly read, as between infamous, in contrast to improper conduct, in a professional respect, is a dichotomy imposed by the legislature and obviously must be respected. That is so, notwithstanding that the adjective "infamous" now presents in 2005 as a little dated in character. Furthermore, where a line is actually to be drawn as between improper and infamous, when characterising overall misconduct in a professional respect, is by no means always going to be clear. Scope for subjective disagreements as to where the line is drawn in any given set factual circumstances presents as an unnecessary burden in an assessment process already difficult enough. Moreover, the chosen hierarchy tends to diminish the relevant significance of improper conduct. It is certainly the case under s 13(3) that improper conduct may well be assessed to be of such seriousness as to warrant suspension or removal of a medical practitioner's name from the register. Correspondingly, a finding of infamous conduct in a professional respect, although necessarily of a more serious relative character, in the chosen hierarchy, does not necessarily lead to the unavoidable suspension of a medical practitioner or the removal of that practitioner's name from the register. In every case it is a matter of giving full and proper consideration to all relevant facts and circumstances associated with each particular transgression concerned. This is an important point well made by Owen J in his reasons for decision in Jemielita v The Medical Board of Western Australia, unreported; SCt of WA; Library No 920584; 13 November 1992.

53 Difficulty in drawing a line in any given case, as between infamous conduct and improper conduct in a professional respect by a medical practitioner is amply illustrated by a prior decision of the Board in the matter of Re Beckhurst, unreported; The Medical Board of Western Australia; Library No 1392-48; 18 September 2001. In that case the Board made the lesser (relative) finding of improper conduct. Yet that was a case in part, of a sexual relationship between a doctor and a former patient. Dr Beckhurst had treated the young female patient for many problems, including problems of a psychiatric and emotional nature for eight years. He had been first consulted by the woman when she was 17 years of age. After some seven years of treatment the patient telephoned Dr Beckhurst one day and suggested that they meet socially for a cup of coffee. The practitioner weighed up that invitation. In due course, he accepted. He then decided to terminate the therapeutic relationship so as to pursue something more. Two months after the meeting for coffee, the relationship between Dr Beckhurst and his former patient had developed to a full sexual relationship. Dr Beckhurst left his wife and began to cohabit with his former patient a couple of months thereafter. It was concluded by the Medical Board that Dr Beckhurst had allowed this relationship to develop without proper or adequate regard to the risk that he was exploiting (intentionally or otherwise) the patient's emotional vulnerability and potential dependence upon him. It was concluded that he had abused his position of trust, even though the patient had instigated the personal relationship and that sexual relations had been entirely consensual. There had been no "cooling off" period allowed prior to a personal relationship being pursued.

54 The coram of the Medical Board in the matter of Beckhurst comprised Professor C A Michael, Mr E M Heenan QC (as his Honour then was), Dr M Surveyor, Mrs A White and Dr J Lubich. It is instructive to refer to paragraphs [53] and [54] of the Board's decision:

"[53] The Board finds that a prudent doctor would have:

(a) actively discouraged the relationship;

(b) terminated the doctor-patient relationship, irrespective of whether the personal relationship developed;

(c) encouraged the patient to obtain treatment from another doctor;

(d) ensured that the patient had received impartial and objective medical advice and assistance from a third party before becoming involved in the relationship;

(e) allowed a sufficient 'cooling off' period to elapsed so that 'there can be no suggestion that he ... is exploiting a dependency created in the course of the professional relationship' (referring to the judgment of Dowsett J in Re: A Medical Practitioner (1995) 2 Qd R 154 at 163).

[54] In the opinion of the Board, all of the allegations in the Notice of Inquiry constituted improper conduct in a professional respect. While not being sufficiently serious to justify a finding of infamous conduct, they all involved conduct which constituted a serious departure from the standards expected of a medical practitioner and involved behaviour which is without question improper in the context of a doctor-patient relationship. Behaviour such as this brings the medical profession into disrepute, and is reasonably regarded as improper by professional colleagues of good repute and competency."

55 It is to be noted that in Beckhurst (supra) the Board found that a close personal relationship which developed in late September 2000 between Dr Beckhurst and his former patient was also improper. It went on to find that the sexual relationship which then developed from early November 2000 was also improper conduct in a professional respect, notwithstanding a cessation of the doctor-patient relationship. It is apparent from [42] of the reasons in that case, that Dr Beckhurst and his former patient had remained together in a permanent relationship. At the time of the Board's inquiry they had put a deposit on a block of land and had applied for a home loan to build a house together (see Beckhurst reasons [42]). That was so notwithstanding that the Medical Board's attention had in fact first been raised by the patient herself by way of a complaint to the Medical Board at a time when Dr Beckhurst had attempted to put the relationship "on hold". She was, in effect, getting back at him (Beckhurst reasons [29]), but subsequently regretted her complaint (Beckhurst reasons [44]).

56 I was told during the argument of this appeal by Mr Tottle, counsel for the Board, that the penalty in Beckhurst had been a suspension of two months, a reprimand and possibly a fine (TS68).

57 At [58] and [59] of its reasons in the present matter, the Board (differently constituted) sought to distance itself from Beckhurst. It said of that decision:

"[58] ... In what might be thought to be a surprising characterisation in all the circumstances, the Board concluded that the wrongdoing (which was comprised of three elements) constituted improper rather than infamous conduct in a professional respect. Reliance is placed by Counsel for the Practitioner on that conclusion to support the characterisation for which he presses in this case.

[59] Counsel for the Practitioner observed that the therapeutic relationship in Re Beckhurst was much longer than that in this case (some eight years compared to some six months). He contrasted the 'maturity' of the Patient in this case with the younger former patient in Re Beckhurst but accepted that the psychiatric problems from which the Patient suffered are 'undoubtedly more acute' than were those of the former patient in Re Beckhurst. That is a very significant distinction."

58 After completing its summary of the respective arguments the Board completed its consideration of allegation 3 in these terms:

"[111] It has long been appreciated that the dangers inherent in intimate personal relationships between doctor and patient and doctor and former patient are acute where the patient or former patient has been treated by the doctor for psychiatric or gynaecological problems. Here the Patient suffered from both of the types of problem recognised as likely to render her particularly vulnerable and more susceptible to exploitation. Here the Practitioner assumed responsibility for both her psychiatric and gynaecological health. As Dowsett J. observed in Re a Medical Practitioner (supra), the nature of the specialities involved may make the fact that a psychiatrist or gynaecologist has participated in an intimate personal relationship with a patient or former patient a more serious breach of professional standards than a similar transgression by other doctors. This is because these patients and former patients may be especially vulnerable to exploitation of the therapeutic relationship they share or shared with their doctor due to the nature of their health problems and the treatment and management of them. The therapeutic relationship may be more intensive and the power imbalance greater in these cases than in other circumstances. In these cases the mutual termination of a therapeutic relationship does not ensure the resumption of an equal relationship. The Board does not accept that the relationship between the Practitioner and the Patient after 15 July 2003 was an equal one or one approaching it.

[112] Although the Practitioner is neither a psychiatrist nor a gynaecologist, his treatment of the Patient for inherently intimate problems called for extreme vigilance on his part to ensure that his conduct following the termination of their therapeutic relationship was not exploitative of that prior association. Contrary to the submission advanced on his behalf, the Practitioner did not proceed with the requisite degree of caution electing to commence an intimate personal relationship with the Patient, on his case, within about three months of ceasing to treat her. The Patient told the Board that she had 'built up' trust in the Practitioner over the six to seven months during which he had been her doctor. It is the opinion of the Board that the actions of the Practitioner constitute a serious breach of the trust the Patent [sic] (and the general public) reposed in him. Whether intentionally or otherwise advantage was taken during the material period of the dependency created in the course of the professional relationship. The Patient was a person who was clearly vulnerable to an approach by the Practitioner subsequent to the termination of his therapeutic role. She was somebody who was clearly susceptible to exploitative behaviour by a doctor who provided her with emotional support. It is not difficult to see how the provision of such support might lead to the development of an emotional and romantic relationship. The very significant psychiatric difficulties from which the Patient suffered and the additional major stressors to which she was subject rendered her more susceptible than the former patient in Re Beckhurst and exposed her to a greater extent following the cessation of the therapeutic relationship. Having regard to all of the circumstances, the development of a close personal relationship of an 'emotional and romantic' nature should not have been permitted within the period the Practitioner said it commenced. That this occurred is both disgraceful and dishonourable."

59 I have already referred to Re Beckhurst and the penalty there of a reprimand and two months suspension imposed by the Medical Board, in that case. I deal in due course with the Board's attempt to distinguish the present case from the decision in Beckhurst and to reach a more serious (relative) finding of infamous conduct. It can be seen, however, from the passages already cited from the Board's decision, that largely the basis for the Board assessing the present case as a more serious transgression than in Beckhurst, was a perceived greater degree of vulnerability of this patient, due to her medical conditions. That issue is addressed by several of the practitioner's grounds of appeal. Before leaving Beckhurst, however, I should say that it is a precedent of considerable importance by the Board since, unlike many of the prior disciplinary decisions dealing with misconduct in existing doctor/patient relationships concerning improper or infamous conduct relating to sexual relationships arising therein, Beckhurst concerned, in part, an evaluation and condemnation by the Board of a personal relationship. The Board in Beckhurst went on of course, to distinctly evaluate the subsequent sexual relationship which developed between that doctor and his former patient. Both transgressions were characterised as improper, rather than infamous conduct, in a professional respect.

60 Another authority of considerable importance is a decision of the South Australian Full Court in Craig v The Medical Board of South Australia [2001] SASC 169; (2001) 79 SASR 545,since it concerned a non-sexual personal relationship, between a psychiatrist and his former patient. That personal relationship extended over a period of about a year and a half. The Medical Practitioner's Professional Conduct Tribunal of South Australia made a finding of improper and unethical conduct extending over a period encompassing both the therapeutic relationship and thereafter, until termination of the personal relationship. The practitioner was suspended by the South Australian Professional Conduct Tribunal for a period of six months, and it was further ordered that he undergo a period of supervision for a period not exceeding 12 months upon his return to practice. Doyle CJ, delivering the reasons of the Full Court, dismissed the practitioner's appeal against the severity of that order. Fortunately, the South Australian Medical Practitioner's Act 1983 did not by its terms require the Professional Conduct Tribunal to distinguish as between unprofessional conduct by a medical practitioner and a distinct category of transgression characterised as infamous. Of importance are the following observations by Doyle CJ:

"[24] My conclusion is that the Tribunal found that before 'active treatment' ceased in March 1989, and thereafter, Dr Craig encouraged and maintained an intimate personal friendship with Ms A. It was a friendship in which each of them expressed personal emotions to the other. Although no sexual relationship occurred, on Dr Craig's part the relationship had romantic overtones. It is not surprising that the Board treated this conduct as unprofessional conduct.

[25] I interpolate here that the dangers of such conduct are obvious, from the material before the Tribunal. Ms A was young and, because of her condition, very vulnerable. The use of a professional relationship to cultivate a friendship for Dr Craig's own gratification, albeit also with the desire to help her with her psychiatric difficulties, was to exploit her dependence and vulnerability. ...

[28] Some time was spent before the Tribunal and before this Court on the issue of whether Dr Craig had harmed Ms A by his conduct. It appeared to be more or less common ground that Ms A was confused and upset and angry at times during the relationship and particularly after the relationship was ended and she reflected on it. But there is also the issue of whether her condition was worsened by what he did, or whether her recovery was delayed.

[29] It appears that the Tribunal was of the view that the likelihood was that Ms A's recovery was at least delayed. However, the passage in which the Tribunal deals with this matter was rightly criticised ... .

[30] I consider that this issue can be put to one side. There is no doubt that Dr Craig's behaviour caused Ms A upset and distress. There is no doubt that the relationship which developed was one that carried with it a very real risk of delaying Ms A's recovery. Upon the evidence it is impossible to reach a conclusion whether or not that occurred. For present purposes it suffices to proceed on the basis that Dr Craig embarked on a course of conduct that carried with it a risk of harm to Ms A."

61 A vitally important consideration which emerges with clarity from Doyle CJ's reasons in Craig (supra) to be kept firmly in mind in every case, is that disciplinary proceedings are not punitive in character, notwithstanding that their consequences may in fact involve severe hardship for a practitioner found to have transgressed. Doyle CJ put the matter this way at [41] in Craig:

"[41] The purpose of disciplinary proceedings is to protect the public, not to punish a practitioner in the sense in which punishment is administered pursuant to the criminal law. A disciplinary tribunal protects the public by making orders which will prevent persons who are unfit to practice from practising, or by making orders which will secure the maintenance of proper professional standards. A disciplinary tribunal will also consider the protection of the public, and of the relevant profession, by making orders which will assure the public that appropriate standards are being maintained within the relevant profession."

I also refer, without quoting, to Doyle CJ's valuable observations concerning how professional disciplinary tribunals protect the public by their orders, which may vary: see [45], [46], [47] and [48]. I observe that the Board in its penalty reasons here, gave extensive consideration to the observations of Doyle CJ: see Board's reasons as to penalty at [10].

62 In the course of argument of the appeal here, both counsel referred me to a number of other disciplinary tribunal decisions, both in Western Australia and elsewhere. Most, however, concerned sexual relationships between medical practitioners and existing or former clients. See, for instance, Peeke v The Medical Board of Victoria, unreported; SCt of Victoria (Marks J); Library No 10170; 19 January 1994 and Morris v Psychologists' Registration Board, unreported; SCt of Victoria (Harper J); Library No 6208; 19 December 1997. The decision of Marks J in Peeke makes an important point about never trivialising the significance of a reprimand of a professional person by a professional tribunal: see Peeke at 6. Harper J's decision in Morris was against a psychiatrist who engaged in a lengthy sexual relationship with a former client, resulting eventually in the cancellation of that practitioner's registration. The decision emphasised once again the degree of respect which must be paid by an appellate forum to the views of a specialist tribunal comprised of experienced practitioners who also have the advantage of seeing and hearing the evidence first hand. As Harper J said:

"The courts should be loathe to substitute their opinions for those of professionals experienced in such areas, especially in circumstances such as these, unless it can be satisfactorily demonstrated that the decision was ill-founded or flawed."

Those observations were made in the context of a further recognition that the degree to which a person was emotionally vulnerable and dependent, was a professional judgment reached "by those qualified to make such decisions".

The grounds of appeal: allegation 3, grounds 1 and 2

63 Grounds 1 and 2 as pursued by the practitioner, were as follows:

"1. The respondent misdirected itself by asking whether the appellant was guilty of infamous conduct in a professional respect by permitting a relationship of an emotional and romantic nature to develop between himself and the patient without first allowing adequate time to pass after the cessation of the therapeutic relationship, when no such allegation was made in the amended notice of inquiry dated 6 April 2004, pursuant to which the Inquiry was held.

2. The respondent erred in finding that the appellant was guilty of infamous conduct in a professional respect by permitting a relationship of an emotional and romantic nature to develop between himself and the patient without first allowing adequate time to pass after the cessation of the therapeutic relationship, when no such allegation was made in the amended notice of inquiry dated 6 April 2004."

64 The common denominator to these grounds is that the Board is challenged for focusing upon a temporal consideration, ie the passing of adequate time, after cessation of the therapeutic relationship.

65 I have already set out at [18] hereof the terms of allegation 3 from the amended notice of inquiry of 6 April 2004. Whilst it is quite true that allegation 3, as formulated, does not make explicit reference to "without first allowing adequate time to pass", that does not appear to me to be of any real significance. I would see it as inherent in the nature of the Board's inquiry as to any examined personal relationship that issues such as the allowing of adequate time to pass after cessation of the therapeutic relationship would inevitably need to be considered. Indeed, allegation subpar 3(b) raises a temporal inquiry by its terms:

" ... but at a time when you ought to have appreciated that there was a risk that the patient's feelings for you were influenced by the fact that you had been her doctor". (My emphasis.)

Furthermore, it does not seem to me that the outcomes of these grounds can really bear upon the primary issue as to whether or not the Board erred in characterising the admitted conduct of the practitioner as infamous conduct, rather than merely improper conduct in a professional respect.

66 The practitioner under these grounds complains that the Board "should have assessed the magnitude of the risk that, at the time the personal relationship commenced, the patient's feelings towards the appellant were influenced by the fact that he had been her doctor". In my view there is no merit in this challenge to the Board's assessment of the practitioner's conduct. The magnitude of risk will be inherently linked to the amount of time which has passed between the termination of the therapeutic relationship and the commencement of the personal relationship. The Board evaluated the practitioner's position against (see reasons [110] - [112]) the practitioner's contention that the relationship had not commenced until October 2003, notwithstanding some apparent reservations about that (see reasons [34] - [54] and [112])

(a) the patient was a person with a very significant history of psychiatric illness;

(b) when the patient first consulted the appellant, on 7 January 2003 ('the first consultation'), she was suffering from very severe psychiatric problems;

(c) at the first consultation, the appellant was made aware of the patient's complicated psychiatric problems;

(d) the patient had a very significant psychiatric history;

(e) the patient was a person whose capacity to cope with stress was compromised by significant psychiatric problems from which she had long suffered;

(f) the patient suffered from psychiatric problems;

(g) the patient suffered from very significant psychiatric difficulties

which were findings which were unsupported by the evidence or, alternatively, were against the evidence or the weight of the evidence.

(4) The respondent erred in finding that the appellant had assumed responsibility for the psychiatric health of the patient which was a finding which was unsupported by the evidence or, alternatively, was against the evidence or the weight of the evidence.

(5) The respondent erred in finding that the appellant had assumed responsibility for the patient's gynaecological health which was a finding which was unsupported by the evidence or, alternatively, was against the evidence or the weight of the evidence.

(6) The respondent erred in finding that the patient was a person who was clearly vulnerable to an approach by the appellant and clearly susceptible to exploitative behaviour by a doctor who provided her with emotional support."

67 The grounds essentially go the issue of the patient's degree of vulnerability. It will be remembered that (see [53] above) the Board made something of that, in distinguishing the prior decision of another Board in the matter of Beckhurst (supra). Essentially, Beckhurst was distinguished on the basis that the patient in this particular case was more vulnerable, due to her medical conditions. It must be recognised however, that none of these grounds are necessarily determinative in the end as to the issue of a characterisation of the practitioner's conduct as between infamous and improper. The thrust of the applicant's contentions under these grounds is that essentially the Board overstated the position by describing the patient as a person with psychiatric problems, let alone as being a person "with a very significant history of psychiatric illness" (see Board's reasons [83]).

68 I was referred by counsel for the practitioner to the psychiatric reports of Dr Tait, consultant psychiatrist, who assessed the patient on 24 January 2003 and made his report of 28 January 2003. In summary, Dr Tait diagnosed the patient as suffering from post-traumatic stress disorder with borderline personality characteristics. There was no diagnosis of a psychiatric disorder. Indeed, Dr Tait observed: "Her formal psychiatric history is extremely limited". Dr Tait's subsequent report of 29 July 2003, written after another assessment of the patient on that day, observed: " ... there was no evidence of mental illness distorting [the patient's] judgment".

69 Counsel for the respondent countered by observing that, when considering the issue as to characterisation, that a specialist tribunal was entitled to essentially bring its own expertise to bear upon the material before it in interpreting Dr Tait's reports, also taking cognisance of an apparent suicide attempt by overdose on 27 February 2003 and certain episodes of self harm in May 2003, involving the patient cutting herself on her stomach and her feet, and which episodes were apparently not disclosed to Dr Tait when he assessed the patient.

70 Similarly, in regard to the issue of the patient's psychiatric care, the respondent submitted that Dr Tait's report of January 2003, being confronted with the patient's reluctance to receive therapy (based upon her then husband's strong objections to that), reported to the practitioner that in those less than desirable circumstances, the next best option was for the practitioner to keep watch over the patient and that Dr Tait and the practitioner should "touch base", so that the patient's progress could be monitored.

71 In regard to the issue of the patient's gynaecological care, the applicant pointed out that whilst the practitioner had indeed referred the patient to a specialist gynaecologist (Dr Wong) for treatment, ie a hysterectomy, that he had not assumed responsibility for that type of care himself, notwithstanding that he had apparently assisted Dr Wong at the performance of that operation.

72 To my mind, these grounds concerning vulnerability of the patient essentially raise factual issues of degree only. Whilst some of the language employed by the Board is suggestive of characterising the patient as suffering from a serious mental illness in circumstances where there is no actual diagnosis of a mental illness as such, it nevertheless was, in my view overwhelming, on all the evidence before the Board that the medical conditions which this patient had suffered from were extremely serious. In particular, I refer to Dr Tait's diagnosis of a post-traumatic stress disorder and borderline personality characteristic. An attempted suicide and episodes of self harm were equally disturbing events, irrespective of how they are characterised. I refer, in particular, to agreed facts numbered 5, 6, 9, 10, 14, 19, 26, 32, 33, 34, 35, 41, 43, 44, 48 and 49 as set out in paragraph [27] of these reasons.

73 However one characterises it, it is demonstrable, in my assessment that this patient was for a time seriously unwell, and as a consequence, extremely fragile, both physically and emotionally, in the period between January and mid-July 2003, during the period of the therapeutic relationship. Thereafter, the actual evidence as to her improving physical and mental health becomes overall, rather sparse. I am cognisant, however, of the fact that the Medical Board as a specialist tribunal did have the benefit of seeing the patient when she gave her evidence and was cross-examined during the Inquiry. In my view, the challenge to the Board's conclusion to the effect that the patient was vulnerable, cannot be sustained on all the evidence. In my view, the Board did not err in reaching that conclusion. However, the end conclusion as to vulnerability is not of itself, determinative as to the key issue of characterisation as between infamous or improper conduct. In the end, the issue of vulnerability arose chiefly in a context of the Board's distinguishing the facts, of Beckhurst (supra). The issue must be addressed again in the context of what is essentially the critical ground of appeal, namely ground 7.

"7. The respondent erred in fact and in law in finding that the appellant was guilty of infamous conduct in a professional respect by permitting the relationship to develop at a time when he ought to have appreciated that there was a risk that the patient's feelings for him were influenced by the fact that he had previously been her doctor. The respondent should have found that, by permitting the development of the relationship in those circumstances, the appellant was guilty of improper conduct in a professional respect."

74 This ground raises essentially the heart of the practitioner's limited challenge to the findings made against him by the Board. I must remind myself of some general principles in evaluating this ground.

75 As I have previously observed, the authorities require that due regard be paid to the expertise of the specialist tribunal, which made the decision in the present case. I am fully conscious of that obligation, having regard to the composition of the Board and its demonstrable professional expertise.

76 Again, it must be emphasised that each case of disciplinary proceedings brought against a medical practitioner, raises its own unique facts and circumstances, which must be discretely evaluated.

77 Next, there is no bright line border as between facts which may constitute infamous conduct or improper conduct, in a professional respect. Reasonable professional minds, may quite legitimately come to different conclusions over whether, in a particular set of circumstances, the line has been crossed or not. Furthermore, irrespective of whether the line is crossed or not, the odium of a lesser relative hierarchical finding of improper conduct in a professional respect, must not be unwittingly diminished. Severe potential consequences, including removal of the practitioner's name from the Register of Practitioners or suspension, do not recede as potential outcomes of a serious professional transgression, merely because the end assessment is of improper conduct, rather than of infamous conduct.

78 Turning now to the particular case at hand, I address first the issue of whether this practitioner's conduct is heinous and deserving of the strongest reprobation, and whether there are elements of moral turpitude, fraud or dishonesty in his conduct, which warrant the characterisation of infamous conduct in a professional respect?

79 In my view, this practitioner's misconduct displays a serious error of professional judgment in his dealings with a former patient. The facts and circumstances surrounding the transgression under allegation 3 are, as formulated however, particularly unique. There is no element of sexual exploitation of the patient. Nor, unlike in Craig (supra), is there any evidence of distress or hurt caused to this patient. Because of the way the case was run before the Board, there was only a limited material before it. The majority of that material comprised a statement of agreed facts which, as I have already observed, is rather limited in its elaboration of a "personal relationship of an emotional and romantic nature".

80 The report provided to the Board by Dr Bill Douglas, referred to at [62] of the Board's reasons, may not have been sought prior to commencement of this relationship (that would undoubtedly have been a prudent measure - see [109] Board's reasons). Whilst the Board found this report to be of only "minimal assistance" (reasons [110]), it was in my view of greater importance than that, particularly in the absence of other independent professional evidence that this patient had been hurt or injured as a result of the relationship or that she had been preyed upon and exploited by the practitioner. This was significant. Dr Douglas said:

"Results in general reflect the profile of a person who is currently not depressed or anxious. It does not suggest any degree of emotional vulnerability, in the form of dependency. It appears to me that [the Patient] is in a position to make a reasoned and balanced judgment about entering into this relationship."

There was no other evidence that was identified by the Board to contradict that evidence from Dr Douglas, a clinical psychologist. The Board's reasons point to nothing tangible that they extracted from the testimony of the patient before them to contradict that conclusion by the clinical psychologist. Notwithstanding the specialist medical expertise which comprised this Board (three eminent medical professionals), the overall state of the evidence before them was such that they had to work from a premise, in my view, in assessing the conduct of this practitioner, that the patient had not been harmed by the impugned personal relationship in question. There is nothing in the reasons of the Board to suggest that they concluded to the contrary, as regards an existence of harm. Nor, as I have said, is there anything (unlike the position in Craig v Medical Board of South Australia (supra)) to indicate a causing of distress or hurt to this patient, as a result of the impugned personal relationship.

81 Whilst an absence of harm or the causing of distress does not exculpate the practitioner from a finding of improper conduct in a professional respect (which he accepts), it is in my view a significant factor of weigh up, in assessing whether the line as between infamous or improper conduct in a professional respect, has actually been crossed on these facts.

82 Taking account then of the fact that in this case allegation 3 challenges the practitioner over what is essentially an error of judgment in regard to his permitting (rather than encouraging) development of a personal relationship, after cessation of a therapeutic relationship and the fact that there is no evidence of harm or distress caused to the patient (rather, they were at the time that the Board imposed its penalty of suspension upon the practitioner, husband and wife), I am of the view that in a wholly unique factual scenario, where there is no suggestion of sexual exploitation, that the Board did err in law in characterising the impugned conduct under allegation 3 as infamous conduct in a professional respect. In my view, that characterisation in all the circumstances, was too severe. I am confirmed in my conclusion by the fact that the Medical Board in its decision in Beckhurst made findings of improper, rather than infamous conduct, against that professional.

83 However, as I have said, a characterisation of the practitioner's misconduct as improper, rather than infamous, does not, of itself, lead to any necessary conclusion that the penalty of 12 months' suspension and reprimand imposed by the Board in respect of this transgression, was wrong. The issue of penalty assessment arises under ground 8 of the appeal, to which I now turn.

84 Ground 8 of the appeal is in the following terms:

"8. The respondent erred in ordering, in respect of the finding of infamous conduct, that the appellant be suspended from practice for a period of 12 months which was a penalty which was:

(a) in all the circumstances, grossly excessive;

(b) disproportionate to the finding made and the evidence of the appellant's conduct;

(c) imposed without having due or any regard to or without according any or any sufficient weight to:

(i) the fact that the appellant had been practising for 27 years and had never previously been the subject of an inquiry by the respondent under the Act;

(ii) the exemplary nature of the appellant's previous professional career in various parts of Australia and overseas;

(iii) the fact that the finding of infamous conduct was not related in any way to the appellant's clinical practice;

(iv) the significant contribution which the appellant had made to the provision of health care to the Rockingham/Kwinana community for a period of almost 15 years;

(v) the testimonials provided to the respondent by other medical practitioners and patients."

85 I repeat that the challenge to penalty is also a limited one. Starting from the premise that the practitioner accepted responsibility for improper (not infamous) conduct in a professional respect under allegation 3 (a premise I have now accepted), the practitioner's appeal challenges his suspension of registration as a medical practitioner for the 12 month period, and contends instead for a reprimand and a fine of the maximum allowable amount (namely $10,000), as the more appropriate penalty.

86 The Board's reasons as to penalty of 7 December 2004 may be illustrated from the following passages:

[33] The first observation to be made is that the Board has characterised the wrongdoing of the Practitioner as infamous conduct in a professional respect. It is misconduct which is properly to be described as both disgraceful and dishonourable. It is misconduct which the Board considers is of a more serious character than that which may be classified as improper. There is a material difference between infamous and improper conduct. In the course of consideration of the submissions advanced on behalf of the Practitioner that his misconduct should be characterised as improper rather than infamous, the Board had regard to many of the issues relevant to the determination of the appropriate penalty. Our observations concerning the non-sexual nature of the personal relationship between the Practitioner and the Patient, his insight as to the propriety of his conduct, the 'consensual' nature of the relationship and the extent to which the Patient was vulnerable need not be repeated.

[38] The question whether a reprimand together with the imposition of the maximum fine payable would serve adequately the required purposes of penalising the Practitioner for conduct found to have been disgraceful and dishonourable permits of a clear answer. ...

[39] We emphasise that the temporary removal of the right to practise is not designed to punish the Practitioner. It may be acknowledged that to prevent a doctor from practising as such does operate, in a practical sense, as a 'punishment', but this sanction has not been imposed for this purpose or with this objective. It has been imposed because it is the only sanction which serves adequately all of the aspects of the public interest to which reference has been made."

87 In my view, the Board erred in its approach to penalty in this matter. In the first place, I obviously differ from the Board as regards the issue of infamous, as contrasted to improper conduct. The extracts from [33] and [38] above of the Board's penalty reasons, reveal that the Board commenced its assessment as to an appropriate penalty from the premise that its characterisation of the practitioner's misconduct as infamous, was a guiding penalty consideration. This is confirmed when I examine [40] of the Board's reasons, in the following terms:

"[40] Although every case must of course be determined by reference to its particular circumstances and having regard to its individual merits and although it should not be thought that any particular sanction must follow the characterisation of proven misconduct as infamous, [the Board referring to the decision of Owen J in Jemielita v The Medical Board of Western Australia, unreported; SCt of WA; Library No 920584; 13 November 1992 at [141] - [142] it might be observed that neither counsel could refer the Board to a single circumstance where a finding of infamous conduct in a professional respect has not been met by this Board, its equivalent elsewhere or by any court with at least the temporary suspension of the right to practise."

The Board's reference to the decision of Owen J is important. At 147 of his Honour's reasons, his Honour said this:

"There is one final matter of a general nature which I should mention. The respondent has a wide discretion in relation to penalty. The mere fact that there has been a finding of infamous conduct or of gross carelessness or of incompetency, does not mean that any particular penalty must follow as of course. An act or omission may constitute infamous conduct but that does not necessarily mean that striking off is the appropriate penalty. The respondent is required to consider all of the circumstances surrounding the act or omission and to exercise the discretion accordingly." (my emphasis)

88 Rather than commencing from a premise that the impugned conduct was infamous, and so therefore fell into a category of serious transgression, the Board in going about assessing penalty, in my view, should simply have started from a more neutral premise of evaluating the misconduct of the practitioner in all its relevant circumstances as Owen J has clearly stated in the passage from Jemielita above. Then, in the public interest, bearing in mind that the overall process is protective and not punitive, the Board should have assessed an appropriate penalty. Since I have assessed the conduct as improper rather than infamous, my conclusion dictates that I must, in the light of that differing assessment, re-assess the issue of penalty. I would say, however, that even had my view been that of a characterisation of the conduct as infamous, that the approach to assessment of penalty, in line with the observations of Owen J in Jemielita (supra), would remain the same. I reiterate that where appropriate, a finding of improper conduct of a serious enough kind, or indeed even gross carelessness of a serious enough kind, may well justify the most severe disciplinary sanction. Conversely, a characterisation of infamous conduct cannot dictate a pre-determined penalty outcome of at least some period of temporary suspension.

89 I have made mention on a number of occasions now as to what I consider to be the rather extraordinary nature of the facts at issue in this case, within the context of assessing the dichotomy between infamous, as opposed to improper conduct. Those same matters now present again, in going about a task of assessing an appropriate protective penalty for the public in all the prevailing circumstances. In addition, further matters need to be mentioned.

90 First, must be the unblemished record of this practitioner over a period of 27 years in general practice. Allied to that is the fact (as the Board rightly recognised) that there is not the slightest suggestion that his clinical competence as a general practitioner is in any way challenged. Indeed, testimonial references provided from fellow professionals speak of a highly skilled general practitioner, popular with his patients and whose integrity and good intentions in the best interests of his patients are unquestioned.

91 Whilst I am cognisant of the fact that such references were prepared in a context of intended use in mitigation of penalty, and that the authors were not tested by cross-examination, and I make allowance for that, nevertheless, since the penalty jurisdiction being exercised is protective rather than punitive, weight must be accorded to this practitioner's unblemished 27-year record as a medical practitioner. The views of those professionals who have worked with him and of the patients who have been treated by him in that period are important.

92 In going about a task of assessing public risk, the Board accepted that there was very little likelihood that this practitioner would ever offend again, in similar fashion. His transgression was an error of judgment. It was an error of judgment in the realm of an improper personal relationship with a former patient. It was indeed a serious transgression, but an error of judgment, nonetheless. Moreover, it was an error of judgment in the area of assessing personal feelings for another person, where the potential for human frailties to intrude is great. It is not uncommon as a matter of human experience for serious errors of judgment to be made by intelligent principled professional people when it comes to "matters of the heart".

93 There is a paucity of helpful precedent in the unique arena of impugned non-sexual relationships of a close personal character, after termination of the therapeutic relationship. In Beckhurst the penalty was a two month suspension, reprimand and possibly a fine, in the context of a finding of improper (rather than infamous) conduct in a professional respect. There were two findings of improper conduct both in respect of the close personal relationship, and also in respect of the subsequent sexual relationship in Beckhurst. The therapeutic relationship was longer in that case and the patient was a relatively younger woman. The Board thought that the patient in this case was more vulnerable than the young woman patient in Beckhurst. But vulnerability is also a question of degree. To an extent, all patients are vulnerable within a power imbalance that exists within the therapeutic relationship, even after that relationship is ended. The facts here are obviously different, but it is difficult in my view to assess Beckhurst as a significantly less serious case of professional misconduct. If anything I would assess the circumstances of Beckhurst to be more serious than the present case where rather unique relationships between the parties developed over time.

94 In the South Australian Full Court decision of Craig v The Medical Board of South Australia (supra) the period of suspension imposed by the South Australian Medical Practitioners' Professional Conduct Tribunal, (upheld by the Full Court), was a period of suspension of six months, followed by a period of supervision not exceeding 12 months upon Dr Craig's return to practise. In Craig's case however, the young woman patient concerned (albeit outside the context of a sexual relationship) within the context of an improper romantic relationship, was caused upset and distress, and as Doyle CJ observed at [30] of the reasons, Dr Craig's course of conduct carried with it a real risk of harm to that young woman.

95 In going about the exercise of assessing what is an appropriate penalty in the public interest, the absence of any evidence as to the causing of harm or the causing of distress to this patient is for me merely one more significant consideration that requires acknowledgement and proper weight in the practitioner's favour. The absence of harm or distress to the patient may be thought as perhaps one of the more unusual features of a unique case. Against that however, it must be recognised that there is a significant potential risk for a patient's emotional or physical health to be harmed, in scenarios such as the present. It is fortunate indeed for this practitioner that an absence of harm or distress to the patient is the only conclusion which is to be drawn from the evidence as a whole, assessed at this time. Were it otherwise, the penalty outcome would almost certainly be greater.

96 As part of the process of assessing all relevant facts and circumstances associated with a transgression under allegation 3, I have not overlooked the patient's medical conditions, or a possible risk of a later potential manifestation of harm to her as a result of the impugned relationship permitted by the practitioner. That being said, the facts are what they are now, in regard to her present state of health. Notwithstanding the submission of counsel for the Board that there is no guarantee as to what the future might hold for this relationship (which is now one of husband and wife) the assessment of penalty can only be made upon the facts as they present, rather than upon negative speculation about potential future adverse relationship outcomes.

97 Within the protective process as a whole I have also not lost sight of the need to reassure the wider community that where serious transgressions by medical professionals occur, that they must be seen to be dealt with appropriate vigour. Likewise, a risk of sending the wrong message to other medical professionals who may be strongly tempted towards entering an impermissible relationship with a patient, either during a therapeutic relationship, or after a therapeutic relationship has been terminated, is a proper consideration deserving of weight and recognition. At the end of the day however, a just penalty needs to be imposed, taking all relevant circumstances into account.

98 Taking these considerations into account, within the totality of the facts and circumstances applicable, my view is that the overall protection of the public interest here does not require that the practitioner serve any period of suspension. The period of suspension of 12 months, as imposed by the Board, is too severe. In my view, a reprimand and a fine of the maximum of $10,000 is a sufficient overall penalty to indicate the proper degree of disdain for the acknowledged improper conduct of the practitioner under allegation 3, in the wholly unique circumstances of this case.

Practitioner's Act 1983

A Practitioner v The Medical Board of Western Australia [2005] WASC 198

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Judgment (199 paragraphs)

A Practitioner v The Medical Board of Western Australia [2005] WASC 198 (23 September 2005)

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Cases Cited (5)