Drury v Medical Board of Australia

Drury v Medical Board of Australia - [2011] VCAT 858 - VCAT 2011 case summary — Zoe

[17]

Unfortunately the term 'fit and proper' is not defined in the legislation. Under the previous statutory regime: The Health Professions Registration Act 2005 the responsible Board could refuse an application for registration under s6(2) if:
- (a) The character of the applicant is such that it would not be in the public interest to allow the applicant to practise as a registered health practitioner.
It was submitted on behalf of Mr Drury that in considering whether he is a 'fit and proper person' to be registered as a medical practitioner we should have regard to the suitability criteria set out in the Legal Profession Practice Act 2004 (Vic) to be taken into account when considering an Application for Admission as an Australian Legal Practitioner. In particular, the first of these criteria: 'whether the person is currently of good fame and character'. However, we note that Parliament has not taken the opportunity to specifiy any criteria to be taken into account when considering whether someone is a fit and proper person to be registered as a medical practitioner. Even if we were persuaded that the criteria for suitability for admission as a legal practitioner were somehow relevant, and we are not, noting that a doctor/patient relationship is vastly different from that of a lawyer/client relationship, for the reasons which follow we are not persuaded that Mr Drury satisfies that criteria.
However, we are guided by a recent decision of the Supreme Court of South Australia in Wilks v The Medical Board of South Australia [2010] SASC 287 where Justice Gray considered the meaning of 'fit and proper person' in s33(1)(e) of the Medical Practice Act 2004 (SA) which, at the relevant time, provided a person was eligible for registration as a medical practitioner if the Medical Board of South Australia was satisfied that he or she 'is a fit and proper person to be registered'.
At paragraphs 30 and 31 of Wilks Justice Gray stated:
1. The requirement that an applicant satisfy the Board that he or she is a fit and proper person to be registered embraced a wide range of matters. As Walters J said in Sobey v Commercial and Private Agents Board [(1979) 22 SASR 70 at 76] in a different context:

[26]

Relevantly the Board made the following observations in its decision dated 21 December 2006:
1. When Mr Drury appeared before the Board he was unable to explain the timing and circumstances of his decision to reveal the truth about the sexual nature of the relationships with a number of complainants.
2. On 30 November 2006 the Board was also concerned that Mr Drury's understanding of the harm that he caused the various complainants was still limited. Notwithstanding that several years have elapsed since the panel hearing, he does not seem to have considered the impact on various complainants of his actions in the broad sense.
3. Mr Drury is now prepared to admit the sexual nature of a number of the allegations and concedes that he "did them a great deal of damage by my misplaced and inappropriate intentions". It should be noted however that he describes the sexual aspects of the relationship as being "incidental rather than a central focus". Mr Drury goes on to state that he "believed at the time that I was being of assistance to them". This comment betrays a concerning inability to understand the damage that he has caused, notwithstanding that he had heard the various complainants give their evidence and have that evidence challenged at the panel hearing.
4. The Board was concerned that in his recent written material Mr Drury was unable to deal with the predatory nature of his behaviour.
5. Of additional significant concern is Mr Drury's ongoing failure to deal with the impact of the hearing on the various complainants. Not only were the complainants subjected to the trauma of a fully contested hearing but they had their credibility challenged on the basis that they were lying purely for their own financial gain. Mr Drury described his actions in defending the charges as "a misconception". It is the Board's view that Mr Drury's behaviour in defending the original charges (which he by and large now accepts is reflecting what actually transpired) is most concerning.
These comments are equally appropriate to the application currently before us. We are concerned that after each unsuccessful attempt to regain his registration that Mr Drury has seemingly responded to the comments and observations by the Board when making the subsequent application. In April 2005 the Board noted that Mr Drury continued to deny the allegations. Then, when he applied for registration in 2006, he referred and relied upon his statement of 24 July 2006 in which, for the first time, he admits those allegations.

[49]

These qualified opinions are not sufficient to persuade us that Mr Drury is a fit and proper person to have his registration reinstated. Both opinions contemplate that Mr Drury will have the benefit of continuing support from a third party - his wife. With the greatest of respect to Mrs Drury, we note this is his fourth marriage. The evidence is that Mr Drury is not self-reliant which is extremely important in a professional context particularly in the context of Mr Drury's previous conduct.
We are particularly concerned that it took Mr Drury so long to make the admissions and we have serious reservations about how genuine he is in those admissions. There is a special relationship between a medical practitioner and a patient which is based on honesty, integrity and trust. Mr Drury's conduct in forming inappropriate relationships with each of his five former patients was a severe betrayal of that trust. Furthermore, Mr Drury's persistent and continuing denial of the sexual relationships with his patients, including his lying under oath, causes us serious doubts and reservations about his honesty.
Mr Drury gave evidence during this hearing that at the time he thought it was acceptable to have a relationship with a patient outside the clinical setting. We do not accept that Mr Drury did not know in 2001 and in 2004 that it was not acceptable conduct for a medical practitioner to have a sexual relationship with a patient either inside or outside the clinical setting. We note that the Board recorded in its 2001 decision[3] that Mr Drury agreed with his own counsel that it was unprofessional for a doctor to have a sexual relationship with his patient. The Board also recorded that when being cross-examined Mr Drury 'agreed that if he were lying to the Panel about having had sexual intercourse with his patients when in fact it had occurred that would be a matter that would go to the very heart of his appropriateness to practice as a doctor.'[4] (sic) In our view this indicates not only an understanding of the boundary issues, but also the importance of honesty and integrity.
Further, despite the findings by the Board in 2001, Mr Drury continues to deny inappropriate intimate clinical examinations and of the five former patients, continues to deny he had a sexual relationship with one of them. We note, in passing, that Mr Drury did not seek a review of the 2001, the 2005 or the 2006 decisions.
Much of the psychological and psychiatric opinion is focussed on Mr Drury's risk of re-offending (engaging in inappropriate relationships with patients). In our view, this is to miss the point. Not only must we have regard to his sexual indiscretions and the inappropriate relationships with his patients, it is also appropriate that we have regard to Mr Drury's persistent denial of the allegations, and his apparent preparedness to 'tell a story' to fit a particular situation.
The observations by Buchanan JA in Medical Practitioners Board of Victoria v McGoldrick [1999] VSCA 215; (1999) 15 VAR 462 at [24] are apt:

At a glance

Court

Decision date

Source

Judgment (53 paragraphs)

Parties

Cases Cited (1)

Drury v Medical Board of Australia (Occupational and Business Regulation) [2011] VCAT 858 (10 May 2011)