Lal v Medical Practitioners Board of Victoria - [2008] VCAT 2077 - VCAT 2008 case summary — Zoe

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Lal v Medical Practitioners Board of Victoria

[2008] VCAT 2077

Victorian Civil and Administrative Tribunal|2008-10-10

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At a glance

Source facts

Court

Victorian Civil and Administrative Tribunal

Decision date

2008-10-10

Source

Original judgment source is linked above.

Judgment (70 paragraphs)

[1]

The applicant's insight into his past wrongdoing and the extent to which he exhibits remorse towards those who have been affected by that wrongdoing are relevant to whether his character is such that it would not be in the public interest to allow him to practise.
Mr Lal says that he has accepted responsibility for his past misconduct and has 'moved on in my life'.
There is a conflict in the expert opinion in respect of these issues.
Professor Kyrios said that over time Mr Lal has developed a much better understanding of his behaviour and has come to see that his behaviour had an enormous effect on others. He said that Mr Lal exhibited appropriate emotional responses (in terms of guilt and remorse) to his past misconduct and did not see that Mr Lal had any deficits in this regard.
Professor Ball said that Mr Lal had a good understanding of the suffering caused by his past misconduct, and has had such an understanding for a long time.
On the basis of her psychiatric examination of Mr Lal on 4 August 2008 Dr Neill observed that 'there was no expressed remorse or empathy for his patients or the professional colleagues who were injured by his behaviour, nor for partners.[29]
We note that Dr Neill did not ask Mr Lal specific questions about these issues. In her oral evidence Dr Neill said that Mr Lal conveyed remorse for things for which he had no responsibility (e.g. World War II), but not for the things he had done. Dr Neill concluded that Mr Lal had a diminished capacity for interpersonal empathy:

[2]

[16]

The ground in section 6(2)(c) is, relevantly, that the applicant is unfit to be registered because he has a mental impairment which impairs his ability to practise. The use of the expression 'has a ... mental impairment' suggests that the impairment in question must be one that the applicant currently suffers.
In these proceedings it is common ground that Mr Lal no longer has a mental illness. He no longer has OCD. As Professor Kyrios put it, OCD is characterised by the presence of intrusive thoughts of an unwanted nature with or without associated compulsions. Absent these symptoms Mr Lal does not have OCD.
The Board contends that Mr Lal currently has obsessive compulsive personality disorder (OCPD). It is submitted that the combination of Mr Lal's present condition and the risk of OCD relapse constitutes a 'mental impairment' within the meaning of s 6(2)(c) which impairs Mr Lal's ability to practise as a health practitioner.
There is a conflict in the expert opinion about whether Mr Lal currently has obsessive compulsive personality disorder (as suggested by Dr Neill) or obsessive personality traits (as suggested by Professors Kyrios and Singh). But it is unnecessary for us to resolve that conflict because even if we accept that Mr Lal has OCPD, there is simply no evidence to suggest that such a condition impairs his ability to practise as a medical practitioner. Indeed Professor Ball's evidence was that Mr Lal's personality disorder had not impaired his ability to practise as a general practitioner. We are not persuaded that Mr Lal's OCPD impairs his ability to practise as a health practitioner.
Nor are we persuaded that the risk that Mr Lal may have an OCD relapse can be said to impair his ability to practise.
The impairment ground in s 6(2)(c) is expressed in the present tense, ie the applicant 'has a ... mental impairment'.
We have already indicated that there is a low risk that at some future time Mr Lal may have a relapse of OCD. But the fact that Mr Lal might in the future, have a mental impairment which impairs his ability to practise as a medical practitioner is a long way from establishing that Mr Lal 'has a ... mental impairment'.
Nor does the combination of OCPD and the risk of OCD relapse add anything. By themselves each factor is insufficient to establish the impairment ground. Dealing with the factors in combination does not advance the position. We are not persuaded that there is necessarily a link between OCPD and the risk of a relapse of OCD. But even if there were such a link, OCPD would only be relevant in estimating the probability of relapse. We have already concluded that the risk of relapse is small, but significant. However, a risk of acquiring a mental impairment in the future is insufficient to establish that Mr Lal 'has a ... mental impairment' within the meaning of s 6(2)(c).
We are not persuaded that Mr Lal is unfit to be registered because he has a mental impairment which impairs his ability to practise as a health practitioner.

[18]

"... the opinions of Professor Ball, Dr Kyrios, Dr Bruce Singh and Dr Savage, ... were all to the effect that you suffered from obsessive compulsive disorder through this offending period and that this significantly diminished your powers of judgment and decision making and importantly diminished your responsibility for your offending behaviour. Dr Kyrios put it as high as saying by 95 per cent. He added that it was quite normal for OCD sufferers to hide their problem and keep it secret even from loved ones. I must say that I found this topic very complex and indeed I think it is fair to say that the doctors themselves find it complex and do not fully understand it. At times I felt that this diagnosis was held out as a convenient excuse for every form of aberrant behaviour that was put to them about you and it may have been evident from my questioning of Dr Kyrios that to some extent I held a sceptical attitude about this factor in your case. however, suffice it to say in the end that I can hardly reject this powerful body of evidence of the diagnosis itself; in other words, that you did suffer from OCD at the relevant time and indeed they say you still do, albeit controlled by treatment. And I can hardly reject the powerful body of evidence that this condition does affect your judgment and decision making and does result in pressures to react in a compulsive way to certain obsessive thoughts, and to some extent perhaps not insignificant, (although I am certainly not going to be drawn into putting a percentage on it), but suffice to say that to some extent and perhaps not insignificant, it does diminish your responsibility for your actions. I should point out perhaps in some form of justification for that conclusion that the Medical Board clearly accepted the same conclusion. Its findings which I have read indicate that it found the evidence of Professor Ball and Dr Kyrios to be "compelling" and explanatory of your uncharacteristic conduct over the period. More importantly, I should say, so too does the Crown accept that this condition of obsessive compulsive disorder did exist and did have an effect on your culpability, and the Crown conceded that you were at the relevant time suffering from that psychiatric disorder."[34]

[31]

The practitioner in Pettiford's case had been involved in a sexual relationship with a patient for a period of about 15 months and had engaged in 'boundary violations' with two other female patients. These behaviours went to the intrinsic character of the practitioner. In such circumstances a finding that he was unfit to practise was entirely appropriate.
But the circumstances in the present matter are quite different. There is no suggestion that Mr Lal is usually disposed to boundary violations with female patients. Rather there is a risk that he may have a relapse of a mental illness which may result in aggressive and inappropriate behaviour towards women. It is that risk to the public to which the conditions we propose are directed; not to any inherent weakness in Mr Lal's character.
In the event that we were minded to impose conditions on Mr Lal's registration the Board identified a range of health; employment; monitoring and counselling conditions which it submitted would be appropriate. Mr Lal was given the opportunity to comment on the conditions proposed by the Board but chose not to do so.
Having regard to the need to protect the public and risk that Mr Lal may have a relapse of OCD which may result in aggressive and inappropriate behaviours towards women we intend to impose a range of conditions on Mr Lal's registration.
Importantly the conditions limit the number of clinical contact hours per week; make provision for supervision and support; and provide that Mr Lal is not to consult with any female patients or children under 16 years of age. The reason for the latter restriction is that children are often accompanied by their mother when attending a medical practitioner. Indeed some of Mr Lal's past boundary violations have involved women who attended his practice with their young sick children.
Many of these conditions are similar to those previously imposed by the Board. They are intended to reduce the risk of a relapse (by limiting contact hours, and hence the associated stress, and providing for appropriate on going professional support) and protect the public in the event of a relapse (by active monitoring and supervision, and by restricting Mr Lal's clinical contact to male patients aged 16 years and over)[41].
The conditions we intend to impose are set out in the attached document, marked Annexure A. It is our intention that the conditions specified operate for a period of three years after which time they may be reviewed by the Health Committee of the Medical Practitioner's Board of Victoria.
Finally, Mr Lal should give consideration (in consultation with his treating health practitioners) to joining a Balint group and we would also encourage him to go ahead with his intention of sitting the FRACGP examination.

Lal v Medical Practitioners Board of Victoria

At a glance

Court

Decision date

Source

Judgment (70 paragraphs)

Parties

Legislation Cited (6)

Cases Cited (1)

Lal v Medical Practitioners Board of Victoria (Occupational and Business Regulation) [2008] VCAT 2077 (10 October 2008)