These disciplinary proceedings have been commenced by the Health Care Complaints Commission ("the HCCC") against Dr Lachlan Soper and allege unsatisfactory professional conduct and professional misconduct. The Complaints relate to Dr Soper's sexual relationship with two female patients between 2004 and 2017, his treatment of a family member contrary to his ethical duties and the prohibition placed upon such treatment under ethical guidelines applying to registered practitioners.
Dr Soper completed his internship at Royal North Shore Hospital in 2001 and in 2002, was a resident medical officer at Bankstown Hospital. In 2004, he commenced practising as a general practitioner at the Brook Street Medical Centre, Muswellbrook. Between 2007 and 2011, he also worked at a medical practice in North Sydney. In 2011, he opened his own medical practice in St Ives as a sole practitioner. Between January 2012 and July 2017, he worked part-time on Thursdays and Fridays at the Muswellbrook practice and for the remainder of the time, worked at his St Ives practice.
At the hearing, the HCCC proceeded on an amended complaint that narrowed the scope of the particulars alleged against Dr Soper. Except for a small number of details, Dr Soper accepted the allegations of unsatisfactory professional conduct and that his conduct as a whole amounted to professional misconduct.
Complaints One, Two and Three alleged that Dr Soper had engaged in improper and unethical conduct relating to the practice or purported practice of medicine. Complaint Four alleged that Dr Soper engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of his medical registration, or that he had engaged in more than one instance of unsatisfactory professional conduct that, when the instances were considered together, amounted to conduct of a sufficiently serious nature as to justify suspension or cancellation of his medical registration. The particulars of Complaints One, Two and Three were relied upon individually and cumulatively.
The particulars of Complaint One dealt with conduct occurring between 2009 and 2017. In 2009, proper professional boundaries had not been observed when Dr Soper went to patient A's home and requested and received a shoulder massage from patient A. In 2010, he and patient A had gone on an outing of a personal nature. In 2011, he had visited patient A's home and: kissed her on the mouth; stroked her leg; lifted her skirt; touched the outside of her underwear; and attempted to place his fingers underneath her underwear. During 2012, during consultations at the Brook Street Medical Centre, he: kissed patient A on the mouth after some consultation with her; touched patient A's breasts; placed his hand on patient A's underwear and made stimulating movements; rubbed himself against patient A until he ejaculated and then said words to the effect of "Thank you that was really lovely"; patient A put her hands inside his underwear and stimulated him whilst he did the same to her. Between 2012 and 2016, Dr Soper maintained an inappropriate personal and sexual relationship with patient A including that he: had sexual intercourse with patient A at his residence in Muswellbrook; and, had sexual intercourse on a number of occasions with her in the consulting rooms at the Brook Street Medical Centre. Between 2012 and 2016, Dr Soper inappropriately continued to provide medical treatment to patient A whilst maintaining a personal and sexual relationship with her. On March 9 2017, Dr Soper failed to provide appropriate care for patient A, in that he did not advise the psychologist to whom patient A was referred for treatment for her marriage difficulties, of his relationship with patient A.
Complaint Two alleged that between 10 March 2014 and 15 September 2016, Dr Soper inappropriately provided care and treatment to a family member, including: providing care and treatment to patient C for approximately 35 times; and, prescribed for family member patient C, anti-depressant medications Avanza and Sertraline on 12 September 2016 and 14 September 2016 without independent opinion from another practitioner.
Complaint Three alleged that between 2004 and 2007, Dr Soper maintained an inappropriate personal and sexual relationship with patient B. It was further alleged that between 2004 and 2016, Dr Soper failed to observe proper professional boundaries in that he: continued to provide treatment to patient B after commencing a sexual relationship with her; and, failed to refer patient B prior to December 2010, to another general practitioner in light of the sexual relationship with her.
Complaint Four alleged professional misconduct and relied upon: Complaint One, Particulars 1, 2, 3, 4, 5, 6, and 7, Complaint Two and Complaint Three, Particulars 1 and 2 individually; and Complaints One, Two, and Three, and the particulars thereof were relied upon cumulatively.
The evidence presented by the HCCC was comprehensive and included statements from patient A and patient B regarding their sexual relationship with Dr Soper. A number of private complaints concerning his conduct with patient A were made to the Medical Council, the HCCC and the Australian Health Practitioner Regulation Agency between December 2016 and March 2017. These complaints were made after Dr Soper's affair with patient A was exposed and admissions made by Dr Soper to his fellow churchgoers. A complaint was also filed by patient C's psychologist. Dr Asha Yourell, who was Dr Soper's treating psychologist, filed a mandatory report in June 2017. A further complaint by a psychologist concerning Dr Soper's sexual relations with patient B was filed in November 2017.
One of the complaints made to the HCCC came from the Rev James Macbeth, an assistant Minister at Christ Church Anglican Church, St Ives. Dr Soper and his family attended the church from 2015. On two occasions in mid-December 2016, Dr Soper had admitted to him that he had sexual contact with patient A and had done so knowing that this was against the guidelines for a registered doctor. Rev Macbeth urged Dr Soper to self-report as a mark of integrity and a clear sign of his determination to change his behaviour. Dr Soper refused to take that course and Rev Macbeth excluded Dr Soper from the ongoing life of the church. After informing Dr Soper that he would be reporting the conduct to the HCCC, Rev Macbeth received a letter from solicitors acting for Dr Soper claiming that such action would be defamatory and harm Dr Soper's earning capacity and reputation. The letter requested and required that Rev Macbeth take no such action as threatened and indicated that failure to do so would require Dr Soper to consider his rights of action. Shortly after receiving that letter, Rev Macbeth asked Dr Soper to withdraw the threat of legal action but that did not occur until a year later, in mid-December 2017.
The HCCC relied on two expert reports prepared by Dr Kinga Price, a medical practitioner with over 20 years of clinical experience who had obtained her fellowship of the Royal Australian College of General Practitioners in 2003. Dr Price had been providing expert reports for the HCCC since 2015. The reports dealt separately with Dr Soper's relationship with patient A and patient B. The reports dealt with some matters that were not pressed by the HCCC before the Tribunal and those matters have not been taken into account in forming the decision in this case.
The close physical relationship that developed between Dr Soper and patient A between 2009 and 2011 was regarded as clearly of a sexual nature and involved sexualised behaviour that amounted to sexual misconduct. In reaching this conclusion, Dr Price referred to the Medical Board of Australia's, Sexual Boundaries: Guidelines for Doctors. The Guidelines state that it is always unethical and unprofessional for a doctor to engage in a sexual relationship with a patient. The breaching of sexual boundaries exploits the doctor-patient relationship, undermines the trust that patients and the community have in their doctors and may cause profound psychological harm to patients and compromise their medical care. Dr Soper's conduct in this regard was described as being significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience and thereby invited Dr Price's strong criticism.
Dr Price expressed similar conclusions in relation to Dr Soper's conduct as patient A's general practitioner in 2012 and 2013 with the sexual relationship ongoing through 2013 to late 2016. Engaging in sexual conduct while in Dr Soper's consulting rooms was described by Dr Price as inappropriate, unethical and in breach of professional boundaries. The increasing complexity of patient A's medical problems in 2012 made it inappropriate for Dr Soper to continue treating her and he should have taken all reasonable steps to transfer her care to another practitioner. The ongoing treatment of patient A between 2012 to 2016 was inappropriate and significantly below the standard reasonably expected of a practitioner of Dr Soper's training and experience and was deserving of strong criticism.
Dr Price found that Dr Soper's medical records of treatment of patient A were of some detail and appropriate. The report, however, did allow some latitude for a personal relationship developing between a practitioner and his patient arising in a small or rural community where it was otherwise not practical or possible to avoid. The report does not make any reference to the size of the Muswellbrook population at the time and the considerable industry serviced in the area. The evidence disclosed that there were a number of other doctors available at the Brook Street Medical Centre and in nearby communities.
In relation to patient B, Dr Price stated that it was "very inappropriate" for Dr Soper to commence a sexual relationship with a patient. He should not have treated her after commencing a sexual relationship.
His failure to refer her to another general practitioner was significantly below the standard expected of a practitioner of an equivalent level of training or experience. Further, Dr Price stated that in view of the fact that Dr Soper had a sexual relationship with patient B in 2004/5 and in 2007, but also had a close personal relationship with her before and after that time, it was unprofessional of Dr Soper to continue providing medical care to her between 2010 and 2016.
Dr Price was not required for cross examination.
The HCCC tendered in evidence extensive patient and hospital records for patient A, as well as Brook Street Medical Centre booking sheets and outpatient records. In addition, referral and patient records regarding patient A from psychologists were tendered. Similar records relating to patient B and patient C were also tendered without objection. These records were relied upon by the HCCC in support of the particularised complaints. Patient A, in her statement, provided details of her sexual relationship with Dr Soper and the frequency of sex between 2012 and 2017, including sex in the consulting rooms at both Muswellbrook and St Ives. Complaints about their affair had been made in late 2016 and early 2017, but Dr Soper continued to have sexual relations with her and to treat her as a patient. At no time did Dr Soper say that he should not be treating her until after the complaints were made in 2016/17. This was the first time he spoke of that matter but he still wanted to continue treating her. Neither patient A nor patient B was required for cross examination.
The evidence for Dr Soper comprised of a statement made by him in August 2019, his Reply to the Application for Disciplinary Findings, and reports from Consultant Psychiatrist Dr Murray Wright and from treating clinical psychologist, Dr Asha Yourell. Dr Soper also relied upon a number of personal and character references.
In his written statement, Dr Soper dealt briefly with the conduct specified in the various complaints. Apart from what he regarded as some factual inaccuracies, Dr Soper admitted the details of the complaints and stated that he understood that a doctor ought not to have intimate or sexual relations with patients. He accepted that what he had done was wrong and significantly below the standard expected of a medical practitioner. He stated that he was more than remorseful, he was "repentant". He had reflected on these matters and was disappointed with himself and now sought to "redeem" himself and move forward. He understood that a doctor should not treat or prescribe for family members.
In relation to patient A, Dr Soper accepted that it was unprofessional and inappropriate to be in that intimate and sexual relationship and made no excuses for his conduct. It was totally inappropriate to contact her treating psychologist. In relation to patient B, he stated that he should not have consulted with her following their first sexual relationship in 2004/5 and that he should have advised her that he could not see her professionally and that she should have seen another doctor. He also stated that he should not have had any involvement in patient C's care. His prescription of medication in September 2016 was wrong but shortly after, he had reflected on his conduct and its inappropriateness and had taken back the medication and had stored them securely. He then advised patient C to consult a general practitioner.
The bulk of his statement dealt with steps he had taken since the complaints were raised. Broadly these involved: acknowledging his mistakes to members of his church and friends involving conversations with 95 people; since November 2017, conducting face to face conversations with between 70 and 90 persons for the same purpose and emphasising that he was taking responsibility for his conduct; since November 2017, establishing a relationship with a medical mentor and participating in fortnightly or monthly meetings where they discuss ethics and professional boundaries; from mid-2017 and continuing, undertaking extensive education courses conducted by Landmark Worldwide with the emphasis of always acting with integrity; completing a tailored education course through Carramar Education dealing with ethics and professional boundaries over the period March to July 2018; completing the Avant webinar entitled "Ethics obligations knowledge and skills: Professionalism in Medicine"; completing a number of courses with Peacewise Ministries and attending every second month since March 2018 where the theme is recognition of conflict as a part of human life and how best to deal with it; reading "Boundaries and Boundary Violations in Psychoanalysis" by Glen Gabbard and working through the book with his psychologist and, seeing a clinical psychologist, Dr Asha Yourell, every two to six weeks since January 2017 and a counselor since June 2018.
Dr Soper described his present focus as being completely committed to confession, repentance and restoration. He said he was committed to the tasks necessary to establish his integrity. He acknowledged making substantial mistakes with detrimental impacts on others but was addressing those past mistakes and accepting responsibility for what he had done. He spoke of the breakdown of his marriage, the loss of friendships, the loss of reputation, ejection from his church, loss of his partnership in Muswellbrook, and the damage to his career, as being "traumatic".
In oral evidence in chief, Dr Soper began by apologising to the Tribunal, the profession, his patients A, B and C and asked for forgiveness. In March 2017, he found himself turned out of his marriage and his medical partnership, having no friends in church and thought his life was imploding and he was needing help. As a result of consultations with Dr Yourell, he looked at his marriage and how to move forward. He now understood it was wrong to have a sexual relationship with patient A and he knew so at the time but now he had solid ethics as a foundation.
Dr Soper regarded 2 November 2017 as momentous. He understood that he was in a deep mess and asked several men for help. He contacted one each day to pray and to give advice. He felt humiliated because he had hurt his wife and people in his life such as church colleagues. On this day, his relationship with patient A ended. It was at this time that he decided that he never wanted to suffer like that again, to lose his career and see his children suffer. He admitted that he had compromised the care of patient C.
In cross examination, Dr Soper stated that in early November 2017, he did not finish the relationship with patient A, it just ended. When asked why it had taken so long for the relationship to end, Dr Soper said that up to January 2017, he was addicted to patient A but tried to extract himself from the relationship. By August 2017 he was saying the Lord's Prayer to "get out of it". While he could have done so, he did not stop the improper relationship with this patient until November, at which time her employment with him was also terminated.
Dr Soper had prepared a document for the church in which he confessed to the improper relationship with patient A but it did not contain an apology to patient A or patient B. He raised the matter with his church leaders and his mentor as to when it would be appropriate to make this speech but to date it had not been given. He knew that these relationships were wrong and were boundary violations. He knew this in 2004 when he entered the relationship with patient B.
The Landmark courses were the first undertaken by Dr Soper and they had been recommended by a friend. The courses were general in nature and were not directed to medical practice nor did they deal with professional medical boundaries or prescribing issues. Integrity was the essential issue in every session. Similarly, the Peacewise Ministries courses were not specific to professional medical boundaries or prescribing issues. Those courses were offered by a Christian group and dealt with conflict in general.
Consultant Psychiatrist Dr Murray Wright conducted an assessment interview with Dr Soper in July 2019, lasting some one and a half hours. His report was tendered in Dr Soper's case. Dr Wright asked him to outline the circumstances leading to the complaints made by the HCCC. In general, Dr Soper's response was similar to the evidence he gave to the Tribunal together with similar religious references and inconsistencies. In this interview, he told Dr Wright that he had attempted to reconcile with his wife and with his former church without success. Dr Soper believed that he probably suffered from an adjustment disorder with depression in early 2017 after his wife left him and he was excluded from his church. Dr Wright noted that in the interview, Dr Soper spoke candidly about his misconduct and did not seek to minimise his level of responsibility or to blame any person. Dr Wright observed that "his remorse was pervasive".
Dr Wright's opinion was that Dr Soper had gone to extraordinary lengths to understand the nature and cause of his personal shortcomings that contributed to the boundary transgressions and had attempted to make reparation. He had achieved a deep level of insight and he was working continuously on understanding his personal and professional responsibilities and vulnerabilities. His efforts in this regard were multifaceted, unusually intensive and comprehensive. He was profoundly regretful and had made strenuous efforts to try to make reparation to people he harmed.
In Dr Wright's opinion, Dr Soper was fit to continue to practise medicine as a general practitioner. He did suggest that he be subject to certain conditions, including that he continue in treatment with a psychologist or psychiatrist, that he continue to meet regularly with a mentor who is a senior general practitioner colleague and that he be required to meet regularly with a supervisor to provide clinical supervision, although such a supervisor would not need to be on site.
In oral evidence, Dr Wright said that it was unusual to have numerous mentors and to undertake so many courses as Dr Soper had done. These were good signs that he was doing everything he could to address his shortcomings. It was important to monitor the assistance he is seeking to ensure that there was a focus for his energies. Therefore, mentoring and psychotherapy were important to his recovery. In relation to his present isolation in medical practice, Dr Wright said that it would be helpful and more protective if he worked in a group setting.
Dr Wright was cross examined about the basis of his view that Dr Soper had demonstrated true insight into his professional failures. He agreed that there was an element of opportunism in Dr Soper's conduct and who he was exposed to, but it was more about understanding why it was inappropriate to have intimate relationships with patients. Dr Soper told him that in about 2017, he had finished the relationship with patient A after she assaulted him. Dr Soper did not think he had to stop this long personal relationship but said he was a fool and not thinking straight but had no real or good answer as to why he kept going on with it. Not much was said about why he had employed patient A.
In relation to the courses undertaken by Dr Soper, Dr Wright said that he had some familiarity with the Landmark courses as self-development and improvement focused. The Carramar courses looked at this type of conduct but he had no knowledge of the Peacewise Ministries courses undertaken. Dr Wright thought that these courses were more about personal issues rather than professional issues, noting that Dr Soper had experienced a crisis in his personal and religious life.
The final expert report relied upon by Dr Soper was prepared by Clinical Psychologist, Dr Asha Yourell. Dr Yourell had known Dr Soper for over ten years in a professional capacity and he had referred patients to her practice. She regarded Dr Soper as having a good reputation and displaying a high level of clinical knowledge. Dr Soper had previously consulted her in March 2016 regarding bullying issues arising at the Brook Street Medical Centre.
Dr Soper first consulted Dr Yourell in late January 2017 in relation to having an affair with a patient. Since then, Dr Soper had attended every 2 to 6 weeks and had completed 54 therapy sessions in total up until the date of her report. Since that time he had attended on 6 further occasions. Again, Dr Soper provided an account of the sexual relations he had with patients that broadly reflected the evidence he gave in the Tribunal. He had struggled with the affair with patient A and his wife's discovery of it but also found it difficult to face the situation of having transgressed his professional boundaries. Patient A had preferred to remain with the Brook Street Medical Centre and did not want to go to Aberdeen or Scone, being closer to her home, as she was unhappy with those medical practices. Dr Soper had stated that sexual problems within his marriage had led him to seek love and affection in a sexual relationship.
When Dr Soper disclosed his sexual relationship with a patient during the first consultation with Dr Yourell, she advised him to immediately terminate the relationship in a caring manner, suggesting that she be advised to consult a therapist. Dr Soper said that he understood the prohibition on practitioners treating people with whom they were having a close personal relationship but there was a limited choice of other medical practitioners in rural areas. Apparently, Dr Soper was hesitant to end the relationship because patient A had told him that she had relatives with connections to bikie gangs who could touch up people.
Dr Yourell referred to the work Dr Soper had undertaken to avoid future boundary transgressions and described him as being very motivated to learn to transform his ways. He had shown deep insight in accepting that he was responsible for maintaining appropriate boundaries. He was well aware that he should have referred patient A to another practitioner and that keeping close contact with her would enable her to develop more feelings towards him.
Dr Yourell regarded Dr Soper as having done "everything" to right the wrong of his conduct and referred to the numerous courses undertaken and consultations he had conducted. He had learnt about ethical boundaries and the power imbalance with patients. He had shown a deep level of insight and had been honest in admitting fully and frankly his transgressions. He had been very motivated to undertake courses, seek appropriate counseling and arrange a network of mentors. He had suffered for his wrongdoings and had shown genuine regret and deep remorse and repentance for his conduct. He appeared to be fit to continue his work as a GP and had agreed to continue with his mentoring as well as psychological consultations until the end of 2020 or as required by the Tribunal.
In oral evidence, Dr Yourell said that in November 2017, Dr Soper had ended the relationship with patient A. Asked if he changed after ending the relationship, Dr Yourell said that he was distraught and realised that he had breached the code of conduct but was always aware of that failing. Dr Soper now had a very good understanding of boundaries between doctor and patient to the extent that Dr Yourell believed that he was now a nil risk of breaching those boundaries in the future. Dr Yourell was so confident of this assessment because Dr Soper had done so much work since the breakup of the relationship with patient A.
Dr Yourell was closely cross examined on her report and oral evidence. Although she was aware of the inappropriate sexual relationship with patient A from the first consultation in January 2017, Dr Yourell took five months to make a mandatory report to authorities but was unsure why it had taken so long to do so. Dr Soper took another 11 months to reveal to her that he had an earlier sexual relationship with another patient. When Dr Yourell asked Dr Soper why it had taken so long to speak about the earlier relationship, he said that he had so much to deal with regarding patient A he did not get to patient B earlier. This was the first medical profession boundaries case that Dr Yourell had dealt with. In the earlier March 2016 consultations with Dr Soper, he had not mentioned these boundary issues or tensions within his marriage.
Dr Soper had struggled with the affair with patient A and his wife's discovery of it. He asked what he could do because he had strong feelings for patient A. He was aware of his breach of ethics yet he was so in love with patient A. Dr Yourell developed a strategy to address the boundaries issue and to end the affair with patient A in a nice manner that would protect her. When asked why he had started a relationship with patient A, Dr Soper had little by way of a direct answer. There had been childhood vulnerabilities and difficulties with his parents and his marriage that led him to look for sex and becoming involved with patient A. Dr Soper was obsessed with patient A and she was obsessed with him. Dr Yourell believed that Dr Soper now had no vulnerabilities in the area of professional boundaries.
Dr Yourell did not recommend the Landmark courses and they were undertaken on Dr Soper's initiative. She understood that these courses were not directed to medical profession boundary issues but operated on a broader basis of personal development and so were suited for any profession.
When asked if Dr Soper had no marriage to be involved in, were there any concerns about where he would seek love and companionship, Dr Yourell said that she had no such concerns. They had worked on his vulnerabilities and he had faith in his religion which was now a strong driver in his life. Although he had religious faith between 2011 and 2017, now he was devoted and in a totally different place. Previously his religious commitment had been merely ritualistic but now he had reached a different level of understanding and commitment. Dr Yourell rejected any suggestion that she had been manipulated by Dr Soper in this regard.
When asked if Dr Soper was genuinely contrite in circumstances where he conducted a longstanding affair almost in public but only ended it when his wife caught him out, Dr Yourell expressed the view that his response had a lot to do with his faith. In relation to his future, Dr Soper was now in a sole practice with no assistance and the question arose as to whether or not this was a healthy environment for him going forward. Dr Yourell was of the opinion that he would be better off in a bigger practice but this was not necessary if he continued to consult her.
The final documents tendered on behalf of Dr Soper were some eleven personal references, many from persons engaged in various aspects of the medical profession. Five references came from people who had known Dr Soper for between eleven and twenty years, whilst the longest of the remainder (apart from his half-sister) had known him for five to seven years. A few had acquaintances with Dr Soper for between one and a half years to two years. Four of the referees were unable to comment or were unsure of his personal, general reputation and character but were able to speak as to their professional relationship. Generally the referees spoke well of Dr Soper as a general practitioner and his care for his patients. Comment was frequently made of his adherence to his religious faith. None were required for cross examination.
In his Reply to the Complaints and at the hearing before the Tribunal, Dr Soper conceded that he was guilty of unsatisfactory professional conduct and professional misconduct as alleged in the four Complaints brought by the HCCC. Although admitting his guilt overall, Dr Soper disputed three relatively minor issues, namely: Complaint One, Particular 1, that in early 2009 he failed to observe proper professional boundaries in going to the home of patient A and requesting and receiving a shoulder massage whilst shirtless and kissing her on the mouth; Complaint One, Particular 4(d), that during 2012 whilst in consultation at the Brook Street Medical Centre, he rubbed himself against Patient A until he ejaculated; and Complaint Two, Particular 1, that he provided care and treatment to Patient C, approximately 35 times. In her statement, Patient A gave evidence of the first two matters and the third matter was supported by records tendered by the HCCC. Patient A was not cross examined and the records were not challenged. In those circumstances, the Tribunal is satisfied that these particulars have been established.
Both parties provided written submissions of some detail dealing with the legislative structure, and the necessary elements of a finding of unsatisfactory professional conduct and professional misconduct. The evidence was then analysed in that legislative context. The Tribunal acknowledges the assistance so provided.
There was no disagreement of substance between the parties regarding the legislative framework and the task of the Tribunal. It was common ground that in dealing with this matter, the jurisdiction exercised by the Tribunal was primarily protective in nature and that the protection of the public safety and health was paramount. Section 3A of the Health Protection Regulation National Law (NSW) (the National Law) emphasised that principle. The requirement that only medical practitioners who are suitably trained and practise in a competent and ethical manner may be registered is enshrined in s 3(2)(a) of the National Law. A number of decisions of this Tribunal have also drawn attention to the protection of the public by way of deterring others from engaging in similar conduct as being a necessary part of maintaining proper standards of the medical profession.
Quite apart from the concessions made by Dr Soper through his legal representatives, the Tribunal is satisfied that the evidence in relation to each Complaint, separately and cumulatively, establish that his actions amount to unsatisfactory professional conduct and professional misconduct. Section 139E of the National Law defines professional misconduct as including conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration. In the view of the Tribunal, Dr Soper was well advised to accept that his conduct fell within the scope of s 139E. The Tribunal is also mindful of the decision in Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 638, namely that professional misconduct is determined by reference to the extent to which the conduct departs from proper standards.
In this case, the obvious power imbalance and the possibility for manipulation, exploitation or harm was clear. Dr Price pointed out that the Medical Board has power to develop guidelines and codes under s 39 of the National Law. The Medical Board's Code of Conduct and Sexual Boundaries Guidelines were in evidence before the Tribunal. Dr Price's evidence was that Dr Soper's behaviour regarding patient A and patient B was unethical and contrary to the guidelines laid down by the Medical Board of Australia, the AMA and the RACGP. The Tribunal concludes that Dr Soper, quite deliberately, had ignored the ethical rules of his profession and did so over a lengthy period involving two patients. The ethical rules concerning boundaries provide fundamental protections for patients but were flouted, often in a public way, in order to meet his sexual needs. His prescribing for a family member also ignored the protective boundaries established for the benefit of patients. The Tribunal accepts the uncontradicted expert evidence of Dr Price as summarised earlier in this decision, in relation to each Complaint as particularised and pressed at the hearing. It is worthy of note that in her report, Dr Price not only laid down the foundation for the ethical rules considered in this matter, but also observed that if Dr Soper could not bring himself to end the long running sexual relationship with patient A, at the very least their therapeutic relationship should have ended. The Tribunal is satisfied that Dr Soper's actions amounted to breaches so serious as to be categorised as professional misconduct justifying suspension or cancellation of his registration as a medical practitioner.
The parties' submissions as to what consequential protective orders might be made by the Tribunal following a finding of professional misconduct, varied significantly. The HCCC submitted that, at this point, the Tribunal had a wide discretion to exercise: the circumstances of the particular case would determine the appropriate disposition of the matter, citing the decision of the Court of Appeal in Health Care Complaints Commission v Karalasingham [2007] NSWCA 267 at [67]. There was a need to protect the public against further misconduct by a practitioner, a need for general deterrence, a reinforcement of the high standards of the profession, a requirement that transgressions against those standards be denounced and that public confidence in the profession must be maintained.
Having regard to the numerous deficiencies addressed in the submission, the HCCC proposed orders whereby Dr Soper's registration would be cancelled and he would not be able to reapply for registration for a period of 2 years. In the alternative, if cancellation was not ordered by the Tribunal, it was proposed that his registration should be suspended for a period of six months. It was further submitted that Dr Soper, on return from suspension, should be subject to detailed practice conditions including: a prohibition from working as a sole practitioner; to practice in an approved group practice under level B supervision; to complete a course in medical ethics within 12 months of the decision; and, to continue to consult Dr Yourell, his treating psychologist. In either case, the HCCC sought the payment of its costs.
On behalf of Dr Soper, it was submitted that because of his substantial efforts from 2018 to date to address his ethical failures, he was now a fit person to continue practice as a general practitioner and his registration should not be cancelled or suspended. Practice conditions were proposed if the Tribunal considered that such a course should be followed. The practice conditions suggested mirrored a number proposed by the HCCC except that: supervision in a group practice would be at level C, and, a registered experienced general practitioner should be appointed to act as his professional mentor.
On the issue of suspension or cancellation, it was submitted that Dr Soper had accepted that his conduct was sufficiently serious to warrant suspension or cancellation but the Tribunal was urged to consider the whole of his conduct. He had taken extraordinary steps since November 2017 to address his conduct, had frankly acknowledged what he had done and its serious nature and demonstrated real shame and contrition. He had an appropriate level of insight. It was unlikely that he would act like this again and this was supported by his treating psychologist, Dr Yourell, and by Dr Wright. There was no evidence of predatory behaviour. His long period of therapy and the undertaking of many ethical courses made the risk of repetition of his previous conduct either non-existent or acceptably low.
Having regard to the nature of a significant part of Dr Soper's evidence, it is appropriate to observe at this point that the Tribunal is not engaged in the task of judging the morality of his conduct in relation to the two patients with whom he had a sexual relationship, nor his role in the breakdown of his marriage. This case concerns the admitted ethical duty of a registered practitioner not to engage in a sexual relationship with his patients and his duty not to prescribe medications for a close family member or otherwise treat that family member as a patient.
In this context, it is to be observed that, as a witness, Dr Soper often presented as a person still seeking answers in his life and was prone to prolix answers that were often not related to the questions being asked of him. These unhelpful responses were readily acknowledged by his own counsel and applied not only to questions raised in cross examination by counsel for the HCCC, and questions from the Tribunal, but also in response to his own counsel.
There is no doubt that Dr Soper has tried very hard to re-engage with his church colleagues who walked away from him in late September 2016, and that he has devoted a lot of time and energy to embracing his religion. Those energies devoted to emphasising his faith were frequently relied upon during the proceedings, unfortunately resulting in somewhat of a lack of focus on his ethical failures as a registered practitioner. In his statement of evidence, Dr Soper said: "I am completely committed to confession, repentance and restoration. I am committed to the task necessary to establish my integrity."
Dr Soper pointed to the courses he had undertaken in order to redeem himself. From mid-2017 to the end of 2018, he had completed five courses with Landmark, a company he described as specialising in personal and professional improvement and development. Between March 2018 and mid-2019, he attended courses with the Peacewise Ministries, an organisation that accepted that conflict was part of human life and providing education on how best to deal with that reality. These courses did not deal with matters of medical ethics and responsibilities or medical boundary issues but were directed to broader issues encompassing faith, responsibility and integrity. Dr Yourell did not recommend the Landmark courses to Dr Soper but accepted the general nature of them. Dr Wright had only "some familiarity with the Landmark courses" and described them as self-development and improvement courses. He had no knowledge of the Peacewise Ministries courses or their content. He assumed that they were about personal issues rather than professional issues.
Between March and July 2018, Dr Soper completed what he described as a tailored education programme through Carramar Education, dealing with medical ethics and professional boundaries. In September 2018, he completed the Avant webinar course, "Ethics obligations knowledge and skills: Professionalism in Medicine". He described this course as reinforcing boundary principles. He had also read the book, "Boundaries and Boundary Violations in Psychoanalysis" written by Glen Gabbard. He had worked through that book with his psychologist to reinforce its key learnings. He appears not to have engaged in any other medical ethics courses since that time.
Both Dr Wright and Dr Yourell were in favour of Dr Soper continuing in medical practice but there was at least one issue where both were not told either the full story or were told a version that changed. It is of some significance that Dr Yourell was told that he had ended the relationship with patient A in November 2017, but in evidence before the Tribunal, Dr Soper stated that he had not ended the affair and that it just ended. Dr Wright was told that this affair was ended in 2017 after patient A assaulted him.
Perhaps of more significance is that Dr Soper told Dr Yourell that patient A did not want to attend doctors in Scone or nearby towns as she had no confidence in them, and apparently this was the reason he continued to treat her as a patient for nearly 6 years. No mention was apparently made of the fact that the Brook Street Medical Centre had up to 16 or 17 practitioners available to treat her. In her statement provided to the HCCC, patient A makes no mention of having a difficulty with doctors practising in nearby locations or at the Brook Street Centre. Patient A also stated that at no time up until late 2016 did Dr Soper say to her that he should not be treating her while they were in a sexual relationship, nor did he say so after he was the subject of numerous complaints. Indeed he continued to treat her until November 2017. There was no discussion with either Dr Wright or Dr Yourell as to whether the continuing doctor/patient relationship was a convenient cover for their long running sexual affair.
In the consultations with Dr Wright and Dr Yourell there is no mention of patient B having a difficulty with other doctors in the area: to the contrary, patient B stated that she continued with her own doctor including during the times she was in a sexual relationship with Dr Soper. During their relationship, there was no mention or discussion of Dr Soper breaching professional boundary ethics. In these circumstances, it was simple and easy for Dr Soper to cease treating patient B and to leave her in the hands of her usual doctor, but he failed to do so.
At Dr Soper's first session with Dr Yourell in early 2017 dealing with his boundary issues, Dr Yourell was saddened, disappointed and shocked that he had broken his marriage vows and, even worse, had breached his professional code of conduct. At this early stage Dr Yourell told him to terminate the affair because of his ethical duties. Dr Soper failed to do so until November 2017. Neither Dr Soper nor Dr Yourell explained this long delay.
It is of some interest that Dr Yourell had seen Dr Soper in March 2016 regarding bullying issues that he had at the Brook Street Centre, but he made no mention at that time of his long running sexual relationship with patient A, nor of his sexual relationship with patient B. When consulted in early 2017, initially Dr Yourell was told only about the sexual relationship with patient A and it was not until 11 months later that he told her of the sexual relationship with patient B. These matters raise questions about the extent to which Dr Soper was being honest and open with his treating psychologist. These matters also raise further concerns as to the extent of insight he has achieved regarding the causes of his failures in his professional ethical duties to patients.
Despite these issues, Dr Yourell presented in the Tribunal as something of a fan of Dr Soper and his achievement under her care. In oral evidence she declared, with some emphasis, that there was a nil chance of Dr Soper offending again in relation to his ethical duties and responsibilities towards his patients. Dr Soper's counsel was prudent in describing that opinion as being something of a stretch. Despite the assured nature of that opinion, later in her evidence, Dr Yourell stated that the nil chance of breaching ethical boundaries in the future remained as long as she was his treating psychologist.
One of the matters of concern to the Tribunal is Dr Soper's inability over time and even at this point, to explain why he had a sexual relationship with patient A. Dr Wright said that he had no good answer to this question. Dr Yourell said that there was little by way of a direct answer on the matter. When asked by the Tribunal whether he now had an answer, Dr Soper admitted that he was unable to say. Perhaps the most puzzling aspect of his conduct, is his total failure to simply take steps to have patient A referred to another doctor or to require patient A to seek another treating doctor, in circumstances where there were numerous other doctors available at the Brook Street Centre. Neither step was taken and there is no acceptable excuse for Dr Soper not doing so. Even when he was reported by members of his church in late 2016, he defiantly continued with the relationship for another year. Dr Soper's defiance and lack of insight at this time is further underlined by the legal action he threatened against the Rev Macbeth, a threat he maintained for nearly a year until withdrawn at the end of 2017. As submitted by the HCCC, this was not just a lapse of judgment but a sustained pattern of behaviour contrary to the medical ethics he was bound to obey.
While the Tribunal does not doubt the strength of Dr Soper's religious beliefs as shown by his efforts from 2018 and his rejection of the sexual conduct that cost him his marriage and his religious community, there does not seem to be the same level of recognition of his medical ethical failures as discussed above. His insight seems focused mainly on the grief he caused his wife and family and his religious community. The insight spoken about by Dr Yourell and Dr Wright appears to fall into this category, while he appears to have limited insight regarding his professional medical ethics. Part of his response appears to be to withdraw into a sole practice without any assistance, thus possibly creating a practice where boundary issues will be limited, but who is there to observe his behaviour? The consensus appears to be that he should be involved in a group practice and under supervision. Dr Soper has accepted that approach and other conditions including the appointment of a mentor and the continuation of consultations with his treating psychologist, Dr Yourell. His recognition of these conditions suggests that there remain issues that still need to be addressed to ensure that he will not breach ethical boundaries again.
After consideration of all the matters raised on behalf of Dr Soper, Dr Soper engaged in a deliberate departure from accepted standards laid down by at least three professional bodies. This repeated behaviour involved two separate periods with patient B and approximately six years with patient A. His conduct demonstrated an attitude of indifference and represents an abuse of the privileges that accompany registration as a medical practitioner (see Kirby P in Pillai v Messiter [No 2] (1998) 16 NSWLR 197). The Tribunal concludes that his ethical breaches are of such seriousness that he should be suspended from medical practice for a period of six months, commencing from the date of publication of this decision. On resumption of practice, he shall be required to observe the detailed practice conditions set out in Annexure A to this decision.
[2]
Orders
The Orders of the Tribunal are:
1. Dr Soper is found to be in breach of his professional medical ethical duties, as particularised in the Complaints filed by the HCCC, and is guilty of unsatisfactory professional conduct and professional misconduct.
2. Dr Soper is suspended from medical practice for a period of six months, commencing from the date of publication of this decision.
3. On resumption of medical practice, Dr Soper shall be subject to the practice conditions set out in Annexure A to this decision.
4. Dr Soper shall pay the costs of the HCCC in relation to these proceedings, in a sum agreed or assessed.
5. The publication or broadcast of the names of patient A, patient B and patient C, as referred to in these proceedings, is prohibited.
[3]
ANNEXURE A
Dr Lachlan Soper's registration as a medical practitioner shall be subject to the following conditions:
He is prohibited from working as a sole practitioner.
He is to practise only in a group practice approved by the Medical Council of NSW ("the Council") where there are at least three other medical practitioners and where the patients and patient records are shared between the practitioners, there is always one other registered medical practitioner on site and where the practice is accredited. He shall provide the practice or any subsequent practice, with the terms of these conditions. He shall obtain the approval of the Council prior to changing the nature or place of his practice.
He is to practise in accordance with the Council's Compliance Policy - Supervision ("Attachment A"), as varied from time to time, and to practise medicine under Level B Supervision and as subsequently determined by the appropriate review body. He is to nominate a Supervisor prior to commencing employment, who is to monitor and review his practice and compliance with the practice conditions in accordance with Level B supervision, as varied from time to time. He is to be responsible for any or all costs associated with the supervision arrangement.
He is to provide the nominated supervisor with a copy of all conditions of registration and the Decision of the Tribunal in this matter.
The practitioner and the nominated Supervisor are to meet on a fortnightly basis for at least one hour, with the first meeting to occur within 21 days of commencing work in a group practice. At each meeting the practitioner and the supervisor are to review his work progress and address any relevant work-related or professional matters, including but not limited to, the practitioner's personal and professional development with particular focus on: managing professional boundaries; awareness of ethical issues arising in practice; and, any personal and/or medical practice issues. At each meeting the supervisor is to complete a record of matters discussed at the meeting. The supervisor shall forward to the Council, initially on a two monthly basis, a Supervision Report. The supervisor is authorised to inform the Council immediately if there are any concerns in relation to the practitioner's compliance with these supervision requirements, his clinical performance, health or if the supervision relationship is to cease or has ceased. In the event that the approved supervisor is no longer willing or able to provide the supervision required under these conditions, the details of a replacement supervisor are to be forwarded to the Council within 21 days of the cessation of the supervisory relationship.
He is to nominate a registered experienced general practitioner to act as his professional mentor for approval by the Council in accordance with the Council's Compliance Policy - Mentoring, as varied from time to time, and as subsequently determined by the appropriate review body. The mentor shall report to the Council, in an approved format, every six months as to the fact of contact with the practitioner and if there is any concern about the professional conduct, health or personal wellbeing of the practitioner.
He shall continue to engage with his treating psychologist, Dr Asha Yourell, or any other registered psychologist at a mutually agreed frequency. The practitioner shall accept and act on the treating psychologist's advice and/or recommendations. The practitioner is to inform the treating psychologist of the entire terms of these conditions. The practitioner must notify the Council of the name and contact details of his treating psychologist and of any change in the treating psychologist, and to do so within two weeks of such change.
He shall agree to the Tribunal assigning the Council as the appropriate review body for the purposes of Part 8, Division 8 of the Health Practitioner Regulation National Law (NSW). Sections 125 to 127 of the National Law are to apply whilst the practitioner is anywhere in Australia other than in New South Wales, so that a review of these conditions may be conducted by the Medical Board of Australia.
I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 01 November 2019