1. That the Applicant, having been found guilty of three counts of serious unprofessional conduct and two counts of unprofessional conduct not found to be serious, be:-

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reprimanded; and

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suspended from practice until 9 April 2008.

Mr J Noonan, Senior Counsel, instructed by John W Ball & Sons

Ms M Young, of Counsel, instructed by Minter Ellison, Lawyers.

1 Dr Honey applies to this Tribunal pursuant to Section 60 of the Medical Practice Act 1994 for a review of a decision of the Medical Board of Victoria.

2 On the 11 September 2006, the Board found that Dr Honey had engaged in unprofessional conduct as defined in section 3 of the Medical Practice Act and that three counts of such conduct were of a serious nature.

3 Accordingly, the Board cancelled his registration to practise and disqualified him from applying for registration for a period of two years. This order has taken effect from 9 October 2006.

4 There is no guidance in the Medical Practice Act as to the procedures to be adopted by this Tribunal in hearing this review. Although the hearing is expressed to be by way of review, our task is not simply to review the findings of the Board, but to rehear the case de novo.

5 It is however, not necessary in this case for this Tribunal to reconsider whether or not the determinations made by the Board of unprofessional conduct are correct. Those findings are conceded to be so by Dr Honey. The sole issue in this hearing is whether, looking at all of the conduct encompassed by the offences globally, they merit the sanction of cancellation of registration and disqualification for a period of two years. Dr Honey says that the unprofessional conduct, serious and otherwise, as found by the Board, should attract a sanction of suspension from practice for twelve months and a reprimand.

6 No oral or affidavit evidence was presented to us at this hearing. Instead the parties provided us with a Statement of Agreed Facts and a section of the transcript from the Board hearing, together with a copy of the Board's majority and minority determinations.

7 The unprofessional conduct found related to the following:-

(a) On or about 16 September 1997, the Applicant transgressed professional boundaries by commencing an inappropriate personal and/or sexual relationship with his former patient, Ms C, after the termination of his professional relationship with Ms C as her Psychiatrist on 12 August 1997.

(b) On or about 16 September 1997, and continuing until June 2004 (except for the period January to September 2000), the Applicant continued to engage in an inappropriate relationship with Ms C.

(c) The Applicant paid to Ms C, pursuant to an agreement signed between them on 20 September 2000, the sum of $100,000.00, in part for her undertaking not to lodge a complaint with the Medical Board.

The Board found each of these allegations proven. It further found in each case that the conduct was unprofessional and of a serious nature.

(d) That between 16 September 1997 and June 2004, the Applicant supplied Ms C with prescription medication, notwithstanding that she was not his patient.

(e) That between 6 September 1997 and early 2004, the Applicant breached client confidentiality by discussing two patients' personal histories with Ms C.

(f) That after notification by Ms C to the Board of the previous matters, the Applicant continued to see Ms C on an infrequent basis up to 7 March 2006, and that this conduct included kissing, and discussions about the evidence Ms C was to give to the Board regarding him.

8 The Board found each of these allegations proven. It found that the conduct in each case was unprofessional, but not of a serious nature.

9 The Board has not separately imposed a sanction for each of the allegations found proven. Instead, the Board has determined that, in respect of all of this conduct considered globally, the registration of Dr Honey should be cancelled and he should be disqualified from applying for re-registration for a period of two years.

10 Section 45A of the Act provides for a range of sanctions which can be imposed by the Board after making a finding that a practitioner has engaged in unprofessional conduct of a serious nature. The Board (and this Tribunal) may:-

(a) Require the practitioner to undergo counselling.

(b) Caution the practitioner.

(c) Reprimand the practitioner.

(d) Require the practitioner to undergo a further education course.

(e) Impose a condition on registration.

(g) Suspend the registration of the practitioner.

(h) Cancel the registration of the practitioner.

(i) Disqualify the practitioner from applying for registration within a specified period.

11 In respect of the unprofessional conduct, which is found not to have been of a serious nature, the Board has open to it a range of lesser sanctions specified in section 43(2) of the Act.

12 Clearly the sanction employed by the Board in this case has been at the higher range of possible sanctions available to it.

13 Paragraph 1(a) of the Act provides that the main purpose of the Medical Practice Act is:-

"(a) To protect the public by providing for the registration of medical practitioners and investigations into the professional conduct, professional performance and ability to practise of registered medical practitioners."

14 It is of prime importance in assessing the appropriate sanction that we bear in mind that the purpose of the determination is not to punish Dr Honey. Rather, the purpose is to protect the public, by preventing persons who are unfit to practice from practising as medical practitioners, and by maintaining proper professional standards.

15 This principle is referred to in cases such as Craig v Medical Board of South Australia [2001] SASC 169; (2001) 79 SASR 545, Mullany v Psychologists Registration Board, Supreme Court of Victoria (unreported) 22 December 1997 and Morris v Psychologists Registration Board Supreme Court of Victoria (unreported ) 19 December 1997.

16 Our aim must be to protect the public, and we achieve that aim by imposing sanctions aimed at regulating professional performance of the particular individual under consideration and also by way of general deterrence to the profession as a whole.

17 It is particularly pertinent that the medical practitioner involved in this case is a consultant psychiatrist. It has been pointed out that the practice of medicine per se involves the granting by the patient of the right of intimate access to the body of the patient. This may be even more significant in relation to a psychiatrist, who has access to the most intimate secrets of a patient - secrets they may never tell another human being. The risk of development of an inappropriate sexual relationship between a patient and a psychiatrist is a well recognised hazard of psychiatric practice, so well known, that it is the subject of scientific literature, referred to as "transference" and "counter transference", and taught to psychiatrists as part of their routine psychiatric training.

18 It is covered extensively in information provided to psychiatrists by the Royal Australian and New Zealand College of Psychiatrists (RANZCP).

19 The process is described in Buttsworth v Walton: (unreported) Supreme Court of New South Wales 19 December 1991:-

"In the course of psychotherapy the patient reveals everything and the psychotherapist nothing. The latter is dominant and the patient dependant. The psychotherapist has no "needs "; his or her function is to serve (in a broad way) the needs of the patient. The change in role is likely to, and in this case did, place emotional burdens on Ms A the patient. Which she should not have been asked to carry and which, plainly had the most adverse effect on her medical treatment."

20 In the case before us, as with Buttsworth, the doctor is a most experienced psychiatrist.

21 The special position of psychiatrists was spelled out in evidence quoted with approval by Doyle CJ in Craig v Medical Board of South Australia as follows:-

"Psychiatrists have special duties because of the nature of their work. There is prolonged contact and it is often necessary for patients to discuss details of their thoughts and behaviour of an intimate kind. Moreover strong feelings are often aroused in the patient - feelings of sexual attraction, hatred, or of a wish for a closer relationship. Because of this it is necessary for the psychiatrist to be as neutral a person as is reasonably possible so that very strong feelings of this kind are necessarily distortions engendered by the patient's psychopathology and not the psychiatrist's behaviour."

22 This is a proposition that would have been a "bread and butter" issue to Dr Honey. Consideration of attraction or influence which could affect professional judgement would have been fundamental to his treatment of every one of his patients during the entire course of his professional career.

23 The Medical Board of Victoria and the Royal Australian and New Zealand College of Psychiatrists have published guidelines relating to patient relationships.

24 Guidelines for the profession of psychiatry have been formulated by the RANZCP and circulated to all psychiatrists since 1997. The relevant section of the 1997 guideline is in these terms:-

"5. Furthermore it is generally improper for psychiatrists to have sexual relationships with former patients unless the circumstances of the professional relationship have not rendered the patient vulnerable to a subsequent approach. The more deeply the psychiatrist becomes involved in a patients emotional life the more certain is the impossibility of a subsequent equal relationship. Mutual termination of a therapeutic relationship does not ensure the resumption of an equal relationship. Following long-term psychiatric treatment, this is never possible.

6. However, recognising the problems of formulating absolute rules, any psychiatrist contemplating an intimate relationship with a former patient is strongly advised to consult a properly constituted body of colleagues, bearing in mind that at all times the psychiatrist may be called apon to defend his/her conduct in the judicial context of a medical board/hearing."

25 The 1997 guideline was significantly changed in the year 2000. The rule we have quoted above was replaced with a rule completely forbidding sexual relationships with former patients in any circumstances and describing such liaisons as always unethical, no matter what the circumstances.

26 We note that the relationship between Dr Honey and his patient commenced in 1997. The evidence clearly shows that in 1997 Dr Honey knew that the intimate relationship he had embarked on with Ms C was inappropriate. Dr Honey would have been well aware of this rule change and it is clear from the evidence that he was under no illusions that his actions were in any way allowed at any time under the applicable professional guidelines.

27 The change to the Code of Ethics during the course of 2000 would have further reinforced to Dr Honey the inappropriateness of any physical relationship with a former patient.

28 Counsel for the Board referred us to the following five aspects of the doctor's conduct in this case.

1. The Applicant is a most experienced consultant psychiatrist. He has held teaching and consulting positions of an extremely serious and responsible kind.

2. The patient was clearly vulnerable and the details of her vulnerability were known to the doctor. His notes of his consultations with her describe her problems - a parent having died, an overdose, financial problems and drug use, a failed marriage, a feeling of unworthiness. For a psychiatrist of his experience and standing, the real prospect of transference and countertransference should have been expected in the circumstances and appropriate precautions taken.

3. The doctor's response during a time of his own personal problems placed his own needs ahead of that of his patient. When he became aware that he was reciprocating, instead of seeking assistance for her elsewhere, he simply stopped treatment and shortly thereafter commenced the affair.

The hazards of any such relationship, whether based on transference/countertransference or naked desire, should have been recognised by Dr Honey as potentially serious and devastating for Ms C.

4. The relationship continued for a long time. It commenced in 1997 and concluded in May 2004, with two breaks. There was ample opportunity for him to reflect on his behaviour, especially as it was clear that Ms C was in distress. The circumstances in which the affair was resumed after each break indicated that he was well aware of the inappropriateness of the affair. He made a calculated decision to continue with it - even to the extent of doing so in late 2000, after he had paid the sum of $100,000.00 to the patient and had an agreement signed between them. During the whole of this time he met monthly with a peer review group but told them nothing of the affair.

5. During the course of the entire affair the patient was clearly still unwell. The doctor prescribed her medication for her condition on several occasions, even though he was not her treating doctor. He took no steps to refer her to another medical practitioner.

29 We agree with and adopt these five aspects of the doctor's behaviour as proven from the evidence and relevant in assessing the seriousness of the conduct in this case.

30 We have also considered the circumstances surrounding the payment by Dr Honey to the patient of the sum of $100,000.00 in late 2000. Those circumstances were described in the statement of agreed facts as follows:-

"1. The patient attended a solicitor and was advised she could sue Dr Honey for damages for her emotional suffering.

2. Her solicitors drew up a draft agreement between herself and Dr Honey, providing for Dr Honey to pay her $100,000 to "resolve the party's differences and avoid the costs and risks of litigation" and which also provided her undertaking not to institute proceedings against Dr Honey or report him to the Medical Practice Board (sic) or any other body.

3. Dr Honey was sent the agreement and asked for it to be amended to provide for repayment of the money with interest if the patient breached the agreement.

4. Dr Honey signed the agreement and paid to the patient in accordance with the agreement the sum of $100,000 in September of 2000."

31 We find the entering into, by Dr Honey, of the agreement and the paying of the money to have been extraordinarily foolish and unprofessional in the extreme. However, we note that the agreement was prepared by Ms C's solicitor and Dr Honey appears not to have received any legal advice as to its ramifications for him.

32 Looking at the totality of Dr Honey's conduct, we find a pattern of unprofessional conduct stretching over a long period of time, and culminating in an attempt to avoid the consequences of the conduct. We then find a continuation of the relationship for some time after the money had been paid.

33 Counsel for the doctor referred us to evidence given by Dr Honey himself and three of his colleagues, and evidence given by the wife of a former patient. That evidence was relied upon to establish:-

1. That the Applicant now has appropriate insight in relation to the errors he has made.

2. That the Applicant has an appropriate understanding of the nature and extent that his actions have caused to the patient, his family and himself.

3. That the Applicant now has the support of a peer review group.

4. That in all the circumstances, the likelihood of the doctor reoffending was negligible.

34 Counsel for the Applicant also referred us to references in the material as to the value of the psychiatric services the Applicant has provided throughout his career to the western suburbs of Melbourne, and particularly to deprived areas where access to psychiatric services is difficult, and to the educational and supportive work of Dr Honey generally within the psychiatric profession.

35 We were also referred by him to passages from the transcript which supported his submission that the conduct engaged in was not predatory.

36 The board majority found that it was unlikely that Dr Honey would be likely to engage in unprofessional conduct of the nature of a sexual relationship with a patient again.

37 From the above evidence, we also find it unlikely that the Applicant would ever engage in any of the conduct found proved against him in the future. We note, however, that he did have the support of a peer review group all through the period of the relationship with the patient, and chose not to ask advice from the group or from close friends in the group. From his exposure through this complaint, we expect that his current peer review group would be in a better position to monitor him more closely in the future than it has done in the past.

38 We also agree that his work has been shown to be of great value to the community and that there is evidence that the western suburb's community psychiatric services will be diminished should he be prevented from practising for a substantial period of time. We have considered what weight should be given to this. It could be said that every time the registration of a qualified doctor is cancelled the public suffers in that the doctor is not available within the profession. This will be particularly the case when a doctor practises in an area of medicine, or a geographical area, in which there is a shortage of doctors. Still, we are prepared to accept that Dr Honey has been closely involved to the benefit of the community in establishing and maintaining psychiatric services in underprivileged areas of Melbourne. We accept that the public has an interest in Dr Honey being allowed to practise again as soon as reasonably possible, but consistent with our duty to weigh up the other factors to which we have referred.

39 We agree that his conduct was not predatory in that it did not involve a calculated series of offences. He has shown remorse at what he has done.

40 Our overriding consideration, however, is to signal to the public and the profession that behaviour of this sort will not be tolerated. The deterrent effect of disciplinary proceedings on those in the profession who might be tempted to engage in such conduct and the importance of maintaining the public's confidence in psychiatrists who practise in this State should not be underestimated.

41 In weighing up whether or not cancellation of Dr Honey's registration is appropriate, we have looked carefully at the authorities referred to by both counsel.

42 The major difference between a period of suspension and cancellation is that once the doctor's registration is cancelled, he must reapply after the period specified. He is not guaranteed that he will be so re-registered. He must still satisfy the Board that registration is appropriate and that he fulfils the qualifications for general registration set out in section 7 of the Medical Practice Act.

43 Cancellation of registration sends a clear message of unsuitability to practice. Suspension may be thought to indicate confidence in the doctor's future ability to practice once the period of suspension is served.

44 There are some cases in which it is abundantly clear that deregistration is the only option available to protect the public from a miscreant doctor.

45 This is apparent in situations in which the practitioner does not accept the inappropriateness of his conduct, or has been shown to be a serial offender. An example is that of the practitioner in Traill v Medical Practitioners Board (2006) VCAT 1920, a decision of this Tribunal_._ His behaviour was described by the Tribunal as follows:-

"Having regard to ... his defence in this proceeding, his lack of insight into his conduct, his ignorance of or contempt for the process of scientific verification and clinical validation of theories which is the hallmark of modern evidence based medicine, his disregard for the standards set by his peers for the treatment of cancer patients, and his refusal to acknowledge his duty to conform to the standards required by the profession, we consider it appropriate in the circumstances to cancel his registration, in order to protect the public, to maintain the standards of the profession, and to protect the community's confidence in the profession."

46 We have already referred to Craig v Medical Board of South Australia. This case concerned a situation where a romantic but not fully sexual relationship developed between a psychiatrist and a 20 year old female patient. In that case, the psychiatrist was suspended for six months. But the conduct occurred some eight years prior to the matter being brought before the Board, and no further offending conduct had taken place since that time, so it was self-evident that there was negligible risk to the public from the psychiatrist.

47 We have also previously referred to Morris v Psychologists Registration Board. In that case, Harper J observed:-

"Although I am cognisant of the devastating effect cancellation has had on Mr Morris, I am of the opinion that the Board correctly cancelled his registration, or at least made no manifest error. It seems to me that the conduct of which he was found guilty was not a mere error of judgment, but rather displayed an inability to grasp fundamental concepts and to act in a professional and objective way. I am concerned that Mr Morris continues to assert that his conduct was not wrong. The position taken by him suggests to me that the Board was correct to find as it did and cancel his registration."

48 In this case we do not accept that Dr Honey made a mere error of judgment. His conduct over the lengthy time during which the affair took place is reprehensible and calculated.

49 But we accept that the question of whether the conduct is likely to be repeated is very significant when considering interference in a doctor's right to practice. In Mullany ( a case in which a nine month suspension of a psychologist who unsuccessfully attempted to pressure a patient into a sexual relationship was set aside and replaced with a reprimand), the Psychologists Registration Board was criticised by the Supreme Court for giving inadequate weight to this issue:-

"Nowhere in the reasons is any mention made of the question of the likelihood of repetition whether he has learned from his experience of being the subject of a complaint and later an enquiry and whether there was any need at all to protect the public from the professional activities of the appellant." - Gillard J

50 But we do not take that passage to mean that if there is little chance of repetition then cancellation of registration is never appropriate. Often the very process of being found out in a breach means that sufficient safeguards are placed around the offending doctor to prevent him or her being given a similar opportunity to offend again.

51 It is necessary to look at the conduct overall and to ascertain whether the protection of the public requires a strong message to be sent to other medical practitioners that the conduct in question is reprehensible, and to other patients that they will be protected from that conduct. This is so even if there is no risk at all of repetition of the offending conduct.

52 In Dr Honey's case, we judge the public not to be at any specific risk from him. It is unlikely, given the trauma he has caused to his family and himself, and given that his peer review group is now fully aware of what has occurred, that he will enter into a relationship with a patient again.

53 We have come to the view that the standards of the profession can be maintained and public confidence in the profession protected in this case just as well by a period of suspension, rather than cancellation of his registration to practise.

54 A period of suspension should not be seen as a trivial order. As was also observed by Gillard J in Mullany v Psychologists Registration Board:-

"...Whilst there is no evidence of what the appellant was earning from his profession, assuming he was making a reasonable living as a professional person, nine months suspension is tantamount to a substantial fine. To be deprived of the opportunity of working as a professional for a period of nine months would have a devastating effect on ones financial position, one's standing in the community, one's practice and one's office establishment."

55 In that case, the suspension was overruled in favour of a reprimand. It is not suggested that this course is appropriate here - but the passage is reproduced to underscore that a term of suspension is in itself a determination of a most serious nature to the doctor.

56 We have considered how long we should suspend Dr Honey's right to practise. Varying periods of suspension have been given in the cases to which we were referred.

57 However, the penalty to be imposed cannot be ascertained merely by comparing decided cases. In each case it is the gravity of departure from the standard which must be addressed. Otherwise, as noted in Healthcare Complaints Commission v Litchfield, 41NSWLR630 at 638 the risk is that the standards of the profession will be set by the worst cases:-

"If this is not done there is a risk that the conduct of delinquents in a profession will indirectly establish the standards applied by the Tribunal."

58 As indicated at the commencement of these reasons, our enquiry is a narrow one. The Applicant concedes that a disposition involving loss of his right to practice is warranted. He has suggested that the appropriate sanction is a reprimand and a period of suspension of twelve months.

59 Despite having considered the character evidence provided by the Applicant, the very real contribution made by him to the practice of psychiatry in the western suburbs, and the other matters advanced by his counsel, we are of the view that because the offences occurred over such a long period of time, showed such a lack of understanding of the medical needs of the patient, and involved an attempt to avoid the Boards disciplinary process, a period of suspension for longer than twelve months is appropriate.

60 In all the circumstances, we have determined that an appropriate period of suspension is eighteen months.

61 In setting the period of suspension, we wish to take into account the fact that the doctor's registration has been cancelled since October of 2006. He has ceased to practise since that time, as he was required to do, and his rooms stand empty. We have no power to backdate our order to take into account this fact. Accordingly this period will be deducted from the period we would otherwise have imposed.

The period of suspension will be therefore be set to take this into account.

62 We have considered whether or not a reprimand should also be given, in addition to a period of suspension.

63 We were referred by counsel for the doctor to a comment as to the efficacy of a reprimand as follows:-

"I have mentioned that the Board referred to a reprimand as trivialising a serious lapse in professional standards. I am not able to agree with the Board that a reprimand is a trivial penalty. It may be inappropriate or inadequate in many circumstances, but a reprimand, to a professional person, has a potential for serious adverse implications."

Peeke v Medical Board of Victoria (unreported) 19 January 1994.

64 In our view, the order to reprimand will have the salutary effect of underscoring the seriousness of the doctor's actions. It will remind him lest he is tempted again. It will flag to others practising the profession of psychiatry that the behaviour he has engaged in is to be condemned. And it will give some comfort to members of the public that behaviour of this sort, when uncovered, will be outed for what it is - a flagrant violation of the fundamental principles of the doctor patient relationship.

65 The order we make is therefore that Dr Honey's registration be suspended until 9 April 2008 and that he be reprimanded.

66 We will invite written submissions on any other orders required.