State Administrative Tribunal (WA)|2015-02-19|Before: Justice J

MEDICAL BOARD OF AUSTRALIA and MYERS [2014] WASAT 137 (19 February 2015)

ACT : HEALTH PRACTITIONER REGULATION NATIONAL LAW (WA) ACT 2010

CITATION : MEDICAL BOARD OF AUSTRALIA and MYERS [2014] WASAT 137

Medical practitioner - National Law - Indecent assault - Sexual remarks - Professional misconduct

Health Practitioner Regulation National Law (WA) Act 2010, s 3, s (3)(1), s 4, s 5, s 6, s 7(3), s 31, s 138, s 193, s 193(1)(a)(i), s 193(2)(a)(i), s 194(b), s 196(1)(b)(iii), s 196(2), s 222

Respondent found to have engaged in professional misconduct

The respondent who was a locum physician at a hospital was found to have indecently assaulted a patient and to have made sexually inappropriate statements to her. He was found to have engaged in professional misconduct

Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336

Health Care Complaints Commission v Bours (No 1) [2014] NSWCATOD 113

Medical Board of Western Australia and Bham [2006] WASAT 190

Medical Board of Western Australia and Wright [2010] WASAT 48

1 On 6 May 2013, the Medical Board of Australia (the Board) filed an application seeking orders pursuant to s 196(2) of the Health Practitioner Regulation National Law (WA) Act 2010 (the National Law) including orders that the registration of Dr John Barry Myers' (Dr Myers) be suspended for a period to be determined by the Tribunal, or that Dr Myers' registration as a medical practitioner under the National Law be cancelled.

2 The allegations arise from interactions between Dr Myers and PJD while she was an inpatient at Geraldton Regional Hospital (the Hospital).

3 It is alleged that Dr Myers engaged in behaviour that constitutes professional misconduct in that Dr Myers indecently assaulted PJD while she was an inpatient at the Hospital and that he made comments to her of a sexual nature (application paragraph 8).

4 Dr Myers denies those allegations (amended response 21 January 2014 (his response)).

5 In the course of the Board's investigation and the hearing, Dr Myers conceded that he did have conversations of a sexual nature with PJD but that these conversations were not of the kind pleaded in the particulars of the Board's application.

6 Section 4 of the National Law provides that the Health Practitioner Regulation National Law set out in the Schedule to the Act applies as a law of Western Australia and is a part of the National Law.

7 Section 3(1) of the National Law provides that the object of the National Law is to establish a national registration and accreditation scheme for the regulation of health practitioners, which term includes medical practitioners.

8 Western Australia is a 'participating jurisdiction' for the purposes of the National Law as defined in s 5 of the National Law.

9 Section 7(1) of the National Law provides that it is the intention of the Parliament (of Western Australia) that the National Law establishes single national entities; that is, the intention of the legislative scheme adopted by the WA Parliament in enacting the Act was to participate in the establishment of a single National Board for each health profession.

10 Section 7(3) of the National Law provides that an entity may exercise its functions in relation to one or more participating jurisdictions. Section 31 of the National Law establishes the National Boards including, relevantly, the Medical Board of Australia as one such national entity.

11 Section 222 of the National Law and the corresponding enactments of other participating jurisdictions require National Boards to keep a 'public national register' which is to include the names of all health practitioners registered by the National Boards. As at June 2012, when the events the subject of this application occurred, Dr Myers was registered as a medical practitioner on the 'public national register' established under s 222 of the National Law and the corresponding enactments of the other jurisdictions participating in the national scheme (registration number MED00010367130).

12 Although Dr Myers' principal place of practice, was at the relevant time, in Victoria, (as noted in his registration), the behaviour which is the subject of the proceeding before the Tribunal occurred in Western Australia.

13 Accordingly, at the time that the conduct the subject of the application occurred, Dr Myers was a 'registered health practitioner' for the purposes of s 5 of the National Law in that he was registered by the national entity established under the National Law.

14 Dr Myers' registration was cancelled by a participating Tribunal in Victoria, the Victorian Civil and Administrative Tribunal. In that respect, s 138 of the National Law provides that the application should proceed as though Dr Myers was 'still registered' under the National Law.

15 By reason of s 6, s 5 and subsection 193(2)(a)(i) of the National Law, the Tribunal is the responsible tribunal for the purposes of the Board's application concerning Dr Myers' alleged behaviour. The statutory provisions conferring jurisdiction of the Tribunal in this matter, upon a referral by Board, as the relevant National Board, does not involve a review of a decision. Consequently, this matter falls within the Tribunal's original jurisdiction (see: s 15(1) of the SAT Act). In exercising the Tribunal's original jurisdiction, the Tribunal is to 'deal with the matter in accordance with' the SAT Act and the National Law as the enabling Act (see: s 3 and s 15(2) of the SAT Act). The procedures of the SAT Act apply to this matter (Pt 4 of the SAT Act). The power to dispose of the proceeding on the merits is conferred by s 196(2) of the National Law.

16 The term 'professional misconduct' is defined in s 5 of the National Law as conduct which includes:

(a) unprofessional conduct by the practitioner that amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and

(b) more than one instance of unprofessional conduct that, when considered together, amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and

(c) conduct of the practitioner, whether occurring in connection with the practice of the health practitioner's profession or not, that is inconsistent with the practitioner being a fit and proper person to hold registration in the profession[.]

17 The first and second limbs of the definition of 'professional misconduct' incorporate the term 'unprofessional conduct' which is in turn defined in s 5 of the National Law as:

[P]rofessional conduct that is of a lesser standard than that which might reasonably be expected of the health practitioner by the public or the practitioner's professional peers[.]

This definition includes the various matters identified in subparagraphs (a) to (h) of that definition.

The relevant authorities are set out in the reasons for decision of Health Care Complaints Commission v Bours (No 1) [2014] NSWCATOD 113:

Interpretation of the legislation is assisted by the body of common law in the area of professional disciplinary matters. The classic common law definition of professional misconduct derives from Allinson v General Counsel of Medical Education and Registration (1894) 1 QB 755, namely:

[Conduct] which could be reasonably regarded as disgraceful or dishonourable by his professional brethren of good repute and competency.

The essence of this definition was restated by Priestley JA in Qidwai v Brown (1984) 1 NSWLR 100 at 105:

... whether the practitioner was in such breach of the written or unwritten rules of the profession as would reasonably incur the strong reprobation of professional brethren of good repute and competence[.]

Contemporary cases involving unsatisfactory professional conduct and professional misconduct primarily consider the wording of the relevant statute rather than the considerations of moral condemnation found in earlier decisions, expressing their views 'in terms of strong criticism'. (Lucire v Health Care Complaints Commission [2011] NSWGA 99 at 84; Donnelly v Health Care Complaints Commission (NSW) [2011] NSWSC 705).

18 The Board bears the onus of proof. It is to the civil, not criminal standard, but the principles of Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 (Briginshaw) apply. That is, while needing to be proved only on the balance of probabilities, the nature and seriousness of the allegations are relevant to the question whether the issues are proved to the reasonable satisfaction of the Tribunal and the process by which reasonable satisfaction is attained.

19 By reason of the nature of the allegations, the Tribunal must feel an actual persuasion of the occurrence or existence of the relevant facts in determining whether or not the case against the practitioner is made out: Medical Board of Western Australia and Wright [2010] WASAT 48 at [31]; and see Medical Board of Western Australia and Bham [2006] WASAT 190 at [44].

Between 14 and 19 June 2012, [Dr Myers] indecently assaulted [PJD] and made comments of a sexual nature.

8.1 On an occasion when [PJD] was doing a crossword in her room, [Dr Myers]:

8.1.1 entered [PJD's] room and shut the door behind him

8.1.3 while enquiring how she was, put his right arm over her shoulder and fondled one of [PJD's] breast[s] without her consent

8.1.4 subsequently went to leave the room, said words to [PJD] the effect of 'he would have another hug' and then hugged [PJD] and fondled her breast again while doing so, without her consent.

8.2 The following morning, [Dr Myers] said to [PJD] words to the effect that 'he felt a lot of ladies needed a breast massage in the hospital but not to tell anyone because they'll all want it'.

8.3 One evening, [Dr Myers] visited [PJD] and kissed her on the cheek and said words to the effect of 'Goodnight sweetie, I'll see you tomorrow'.

8.4 On another occasion, [Dr Myers] attempted to hug [PJD] while she was standing and asked her to kiss him.

8.5 [Dr Myers] said to [PJD] on several occasions, words to the effect of 'he wanted her to suck his cock' and 'he wanted to put his cock between her breasts' and 'rub his cock all over her body'.

8.6 [Dr Myers] also told [PJD] how gorgeous she is and while standing next to her said words to the effect of 'feel it, see how stiff you're making me'. On that occasion, [PJD] told [Dr Myers] to go away and behave himself. [Dr Myers] did so but returned an hour later saying words to the effect of 'he was going to be good but couldn't help himself'.

8.7 One day, [PJD] was about to get up to have lunch when [Dr Myers] came into her room, leaned over and patted her twice on the bottom. When [PJD] looked up in response, [Dr Myers] said words to the effect of 'it's alright but I just wanted to smack your bottom'.

8.8 [Dr Myers] touched and rubbed [PJD's] knee and stroked her hand.

(a) 'if she had a computer, they could make passionate love over the computer'

(b) 'think of him when she makes passionate love to her husband'

8.9.2 and said to [PJD] words to the effect that:

(a) he had a double bed at his house and gave her directions to go there and stay with him one weekend and

21 An assault can be constituted by a physical touching without consent. A touching which is sexual and which contravenes a right thinking person's standards can be indecent.

22 The touching must be intentional. An accidental touching could not be indecent.

23 The conduct must have a sexual character. Whether a touching had a sexual character is to be viewed in light of all the circumstances, including the part of the body touched, the nature of the conduct, the situation in which it occurred and the words and gestures accompanying the touching.

24 It is not necessary that the touching was committed for the purpose of any sexual gratification.

25 Indecency must always be judged in the light of time, place and circumstances.

26 Something is indecent if it is unbecoming or offensive to common propriety.

27 At the relevant time, Dr Myers was contracted in a locum position by the Western Australian Country Health Service as a specialist physician in general medicine at the Hospital. The term of his contract was from 4 June 2012 to 31 August 2012 (Exhibit 3, pages 9 17).

28 PJD had been under the care of the Older Adult Mental Health Team of the Central West Mental Health Service since at least 8 June 2009. Her care manager was Ms Jane Brown (Exhibit 2, page 133 paragraphs 2 4).

29 PJD was under the medical care of her local general practitioner and a consultant psychiatrist, Dr van der Veen.

30 Dr van der Veen and Ms Brown would regularly discuss PJD's condition (T:115).

31 PJD had been admitted for four to five days at Kalbarri Clinic, about six weeks prior to 13 June 2012. Her admission to the Kalbarri Clinic had not improved her situation (Exhibit 6, page 25).

32 At the relevant time in June 2012, PJD was married and her adult son and daughter-in-law were residing in her home with her and her husband. There was family friction between PJD and her son and daughter-in-law. The familial disharmony took a toll on PJD, and as a consequence, she became very withdrawn and ceased taking care of herself. Her husband, who was supportive of her, felt that he had exhausted this ability to manage PJD's anxiety and depression. At this point, PJD had begun to have suicidal thoughts.

33 On Wednesday 13 June 2012, PJD was admitted to the Hospital. PJD was 68 years old at the time of her admission.

34 PJD had travelled from her home to the Hospital to attend an appointment with the mental health team at the clinic conducted at the Hospital. PJD travelled to Geraldton by vehicle driven by her husband and her husband was in attendance at the clinic and at her admission.

35 PJD was admitted at the request of Dr van der Veen, who gave evidence that:

[PJD] came to the attention of our service in 2009 with anxious and depressive symptoms, which presentation improved when she was treated with a combination of antidepressant medication and psychosocial support by a case manager.

On June 13 2012 I assessed [PJD] at the Emergency Department of Geraldton Regional Hospital, where she was brought by her husband. Due to psychosocial pressures including difficulties within the family, she had a relapse of depressive symptoms with low mood and labile affect, irritability and suicidal ideation. Her supportive husband was struggling to cope with her at home and was worried about her safety. She was offered a short term admission in Geraldton Regional Hospital as a time out from the stressors in the home situation, to reduce the risk of selfharm and monitor her presentation. (Exhibit 26, page 156)

36 Dr van der Veen's assessment of PJD at admission was that she was a very distressed woman (T:123, Exhibit 6, page 25).

37 The Board produced the emergency department notes [EDN] (Exhibit 4, pages 18 23) and integrated progress notes [IPN] (Exhibit 5, pages 25 35). There was no objection by Dr Myers to the authenticity, relevance and truth of the content of these notes (Exhibit 5, pages 25 35).

had a background of known anxiety and depression with suicidal ideation;
suffered a number of physical ailments;
ingested various prescription medications to treat those physical ailments;
was suffering a tooth infection and was ingesting antibiotics and Panadeine Forte as treatment for the tooth infection;
was referred to the Emergency Department of the Hospital by the mental health team for possible admission because of her presentation to the mental health team with suicidal ideation;
had had a recent incident with her son that had exacerbated her anxious state of mind, which had become progressively worse over the preceding months resulting in the patient thinking increasingly about taking an 'overdose'; and
was unwell, wanted help, and sought voluntary admission for her safety.

39 The EDN also record that PJD was assessed as having a moderate risk of selfharm.

40 The decision was made to admit PJD to the Hospital.

41 The IPN elaborates on the tensions that had arisen within the extended family unit residing at PJD's home. It is noted that:

PJD had been unusually argumentative with her husband whom she normally perceived as supportive; and
PJD had become increasing irritable with suicidal feelings over the past month brought about or exacerbated by a rift that had occurred between herself and her son and herself and her daughter-in-law who were residing in PJD's home.

42 When PJD was admitted, Dr van der Veen advised the doctors that 'no changes were going to be made to [PJD's] antidepressant medication. She would get some additional medication to sleep and we would monitor her mental state and see when she could be discharged' (T:111).

43 The IPN identifies the plan for PJD upon admission to the Hospital, including the prescription of medication to allow the patient to 'get some proper sleep'; the assistance of a case manager to assist PJD to put memories of her past into perspective; and for a meeting to take place the following week between PJD, and possibly her son and husband, after her husband had first spoken to their son.

44 PJD understood her admission to be because of acute anxiety. She understood that the purpose of the admission was to give her some rest (T:31 32).

45 Both Dr van der Veen and Ms Brown gave evidence that PJD's admission to the Hospital was required to afford PJD some solitude away from the factors which had exacerbated her anxiety; to take care of her physical health and allow her 'proper' sleep so that she might be able, once settled, to deal with and resolve her family problems rationally.

46 It was noted in the IPN that PJD should not be permitted to discharge herself without a 'proper discharge plan' being put in place and that she had to be reassessed with respect to 'risk issues'. The Tribunal infers from that statement that one of the objectives of the PJD's admission at the Hospital was to take precautions against PJD acting upon her suicidal thoughts. This inference is supported by the evidence of Dr van der Veen (T:112).

47 Dr van der Veen's plan to treat the patient on admission did not involve the Hospital resolving the family conflict but rather to ensure PJD's safety and to treat PJD's mental and physical condition, which had deteriorated by reason of the family conflict.

48 Dr Myers gave evidence that he was with a group of unidentified colleagues in an admissions meeting when Dr van der Veen informed the meeting that she had a patient that needed to be admitted because 'she had walked out of home' and 'her husband had withdrawn his support'. Dr Myers repeatedly asserted that those words alone constituted Dr van der Veen's diagnosis of PJD and the reason for her admission. Dr van der Veen denied those assertions (see T:109 145). She gave evidence that she informed the meeting that she requested permission to admit PJD for treatment in accordance with the plan noted in the IPN because PJD was at risk from her suicidal thoughts.

49 Dr Myers asserted that PJD was not admitted to the Hospital for legitimate reasons. Dr Myers' crossexamination of both Dr van der Veen (T:109 - 145) and Ms Brown (T:84 - 96) was directed to establishing or tending to establish that neither had properly diagnosed PJD and neither had proper grounds to advance that PJD be admitted. Dr Myers also objected to the need for rest as being a legitimate treatment for PJD. Dr Myers professionally disputed Dr van der Veen's diagnosis and treatment plan for PJD. Dr Myers' professional dispute was based entirely upon the alleged statement made by Dr van der Veen to the admissions meeting on Wednesday 13 June 2012. The alleged statement that Dr Myers asserts was made by Dr van der Veen has no objective support in the EDN or IPN. Dr van der Veen denied the alleged statements.

50 Dr Myers gave evidence that he had never consulted the EDN or IPN before interacting with the patient on the ward (T:209) so as to inform himself of what actually was recorded as a contemporaneous note of the diagnosis and treatment plan. He adhered to his assertion that Dr van der Veen sought admission for PJD solely because she had simply walked out of her home and her husband had failed to support her. He did so in the face of the objective evidence in the EDN and IPN, as well as in the face of the statements to the contrary and the answers he elicited in his cross examination of the Board's witnesses.

51 Dr Myers was a litigant in person and was granted considerable latitude in crossexamination and submissions to formulate relevant contentions and submissions to meet the applicant's application.

52 None of the assertions and evidence concerning Dr van der Veen's decision to seek admission of PJD to the Hospital is relevant to the Board's application concerning Dr Myers' behaviour towards PJD whilst on the ward. Despite repeated reminders to Dr Myers that the proceeding was not a review of Dr van der Veen's diagnosis and treatment plan, he persisted with his contention that Dr van der Veen had misdiagnosed PJD (see for example T:120 12 and T:127). Dr Myers' questions about the cause of PJD's depression and how she presented, as well as Dr van der Veen's professional opinion on the need for PJD to be admitted, are irrelevant to Dr Myers' conduct, which is the subject of the proceeding before the Tribunal.

53 The Tribunal finds that PJD was admitted to the Hospital for treatment in accordance with the plan devised by Dr van der Veen, who assessed her whilst in the Emergency Department of the Hospital consistently with the notes recorded in the EDN and IPN.

54 Dr van der Veen saw PJD on Thursday, 14 June 2012. PJD was 'much more composed and calmer' (T:123; see also Exhibit 6, page 29).

55 Dr van der Veen assessed her as calm and able to think more rationally over the first couple of days (T:124).

56 Dr van der Veen went on leave on Thursday, 14 June 2012 and did not return to the Hospital until Tuesday, 19 June 2012 (Exhibit 20, page 50).

57 PJD gave evidence that Dr Myers came into her room to see her on 14 or 15 June 2012 (Exhibit 21, page 126 paragraph 4). Dr Myers' evidence was that he first saw her on Saturday, 16 June 2012 (T:200 201).

58 The IPN refers to a number of ward rounds by various doctors. These note that ward rounds appear to be within the usual practice of doctors who operate at the Hospital. Certainly there was no evidence that the ward rounds were unusual. The Tribunal notes that ward rounds were conducted as follows:

On Thursday 14 June 2012 at 10.50 am by Drs Armed, Walsh and Tan;
On Friday 15 June 2012 at 10.50 am by Drs Armed, Walsh and Tan;
On Saturday 16 June 2012 at 2.10 pm by Dr Deeba and Dr Myers;
On Sunday 17 June 2012 at 11.50 am by Dr Deeba and Dr Myers;
On Monday 18 June 2012 at 10.20 am by Dr Armed and Dr Tan; and
On Tuesday 19 June 2012 at 12 noon at Dr Armed and Dr Tan.

59 In paragraph 7.1 of the application, the Board alleges that on Thursday 14 June 2012, Dr Myers observed PJD to be upset and crying in her room. This allegation is admitted. In paragraph 7.2, the Board also alleges that on that day and at that time, in the presence of a female colleague, Dr Myers squeezed PJD's hand in an attempt to comfort her (T:201). Dr Myers also admits that statement in his response.

60 The IPN does not record any ward rounds on 14 June 2012 involving Dr Myers. PJD gave evidence on oath, consistently with her statements (Exhibit 1), that the first occasion when she met and interacted with Dr Myers as alleged in paragraphs 7.1 and 7.2 was 'either' Thursday 14 June or Friday 15 June 2012. The IPN does not record any ward round on 15 June 2012 involving Dr Myers. Dr Myers agreed in his evidence that the absence of a record in the IPN to his attendance on PJD does not mean he did not attend, but simply means that his attendance was not noted (T:200 - 201).

61 The first occasion that Dr Myers is noted as having attended PJD in the IPN is on Saturday 16 June 2012, when he attended with Dr Deeba, a female doctor.

62 The Tribunal finds the facts alleged in paragraphs 7.2 of the application did occur. However, those events more probably than not occurred on Saturday 16 June 2012 when Dr Deeba and Dr Myers are noted in the IPN as having conducted a ward round, and not on 14 June 2012 as pleaded in paragraph 7.

63 It is unclear whether the Board relies upon the admitted 'squeezing' of PJD's hand to establish the allegation of an indecent assault of PJD or that these events constitute professional misconduct by Dr Myers. In its opening and closing, the Board did not place any weight upon this incident. PJD did not expand on this incident in her evidence. As the Board has not stated in its grounds that this conduct constituted indecent assault or professional misconduct, the Tribunal concludes that it is irrelevant to the Board's application against Dr Myers.

64 Ms Brown, a psychiatric nurse, saw PJD on the morning of Friday, 15 June 2012. Ms Brown's note records that PJD was very agitated and tearful and needed positive reassurance (Exhibit 6, page 30).

65 Ms Brown spoke to Dr van der Veen on the telephone and informed her that PJD was emotional but that PJD was 'able to look at her situation' (T:123).

66 The medical notes record that PJD was seen during ward rounds by Dr Myers and Dr Deeba at 14.10. The notes recorded at 15:30 state that PJD had been anxious in the morning and had been given diazepam with good effect. PJD was doing puzzles throughout most of the shift (Exhibit 6, page 31).

67 Dr Myers admits that he saw PJD three to four times on Saturday, 16 June 2012 (T:210).

68 The medical notes record that PJD was seen during ward rounds by Dr Myers and Dr Deeba at 11:50 am. The notes by Dr Deeba record that PJD was 'feeling well, happy, smiling' (Exhibit 6, page 31).

69 Dr Myers admits that he saw PJD three to four times on Sunday 17 June 2012 (T:200).

At which point, over the course of those nine to twelve visits, did you start discussing sexual issues with [PJD]?---I wrote in my statement that I think that it would have been on the well, the second day she was happy and smiling, and we may I think then that I say that I think probably after that, that we started addressing, sort of, dealing with issues.

So on the Sunday?---Probably. Yes.

When you say probably?---Yes. Well I think, I don't actually, as you say, I don't actually have the note, but from the construction of the or reconstruction of the inter interchange, I would have said yes.

So your best recollection is that you would put it on the Sunday 17 June, as the day on which you started discussing sexual issues with [PJD]?---Well, I wouldn't say they were sexual. What I was discussing was that she support her husband to go up to the dunes where her son wanted him to be involved in his business, and I suggested she go with him. (T:203)

71 PJD was seen by Ms Brown, who recorded that PJD was 'fearful and anxious'. Ms Brown did note a definite improvement in mood and feeling. A later entry by a nurse records that PJD complained of anxiety and was shaking (Exhibit 6, page 32).

72 Dr Myers' evidence is that he continued his discussions with PJD on the Monday (T:214 215).

73 The Tribunal finds that the occasion when Dr Myers interacted with PJD commenced on Saturday 16 June 2012. Dr Myers gave evidence that he attended PJD 3 - 4 times on Monday 18 June 2012. As PJD was attended to by Ms Brown at 11 am on 19 June 2012, the Tribunal considers that it is more probable than not that Dr Myers' interaction with PJD ceased some time on 18 June 2012.

... So initially I saw the - I saw the improvement in [PJD's] mental state. She would be more composed. When I discharged her she was very distressed.

Now, what was the interval between the apparent improvement and the discharge?- - -I saw her last on the Thursday. I might have seen her on the Tuesday. I would have to have looked that up. And then I saw her on the Wednesday, so between the Thursday and the Tuesday, there was deterioration.

...

What about the Tuesday?- - -On the Tuesday she was initially avoidant - not wanting to speak too much. There was something that happened.

(T:124)

75 PJD made the allegations against Dr Myers on 19 June 2012. As a result of that, she was discharged from the Hospital and admitted to Kalbarri Clinic.

76 On 20 June 2012, PJD made a statement about the allegations (Exhibit 22, pages 134 137). Her statement was copied down by Ms Brown (Exhibit 22, pages 133 and 139). A transcript of those notes appears as Exhibit 21, pages 126 128).

77 Although the statement is dated 21 June 2012, Ms Brown gave oral evidence that the correct date was 20 June 2012 (T:84).

78 The Board alleges that Dr Myers was not in a therapeutic relationship with PJD at any time.

79 Dr van der Veen was unable to say who PJD's doctor was upon admission. She assumed that that was for the doctors on the ward to resolve amongst themselves. There is no evidence that any particular doctor was the PJD's treating doctor on admission. Rather, the evidence of Dr van der Veen, the IPN, the fact that PJD was observed and considered by various doctors on ward rounds conducted each day (see below) and the general agreement of Dr Myers, tends to support, in the Tribunal's view, a finding that, once admitted to the Hospital, PJD was to be treated in accordance with Dr van der Veen's treatment plan by whichever doctor was on the ward at the time.

80 The Tribunal finds that there was a therapeutic relationship between Dr Myers and PJD when he was on shift on PJD's ward, which was limited to observing that Dr van der Veen's treatment plan was adhered to and that PDJ's general health was maintained.

81 The Tribunal notes that the IPN entries for ward rounds each refer to Dr van der Veen's treatment plan being complied with:

Thursday14 June 2012 'Continue current management plan as per mental health';
Friday 15 June 2012 'Continue current management plan as per mental health teams';
Saturday16 June 2012 'Plan Cont[inue] same management';
Sunday 17 June 2012 'Plan Cont[inue] same mx[management]';
Monday 18 June 2012 'Continue mental health inspect';
Tuesday 19 June 2012 'Discharge to [regional] clinic'.

82 In addition, the IPN refers to various physical results such as blood pressure and the like taken during the doctors' ward rounds.

83 In the Tribunal's view, short of ensuring her comfort, correct medication administration, rest and that there were no attempts at selfharm, the ward doctors were not authorised to provide any treatment in relation to PJD's mental or physical state. The ward doctors were not entitled to reassess her admission, revise or modify Dr van der Veen's treatment plan, counsel her or take any action at all with respect to diagnosis or treatment of PJD's mental or physical health conditions.

84 Dr Myers was not authorised to counsel PJD or to revise her treatment plan.

85 Although Dr Myers did attend to ward rounds with Dr Deeba on Saturday 16 June and Sunday 17 June 2012, there is nothing to suggest that at any point PJD required treatment from a physician such as Dr Myers, nor that she required a physical examination (T:220; T:214 215). This is consistent with the primary purpose of her admission to the hospital being for rest.

86 Dr Myers did not make any notes of his visits to PJD (T:200). He provided no adequate explanation for his failure to do so.

87 It is difficult to understand why Dr Myers became involved with PJD. In the course of his crossexamination of PJD, he said to the Tribunal:

I was trying to get her to comply, to be more compliant, and to be - change her attitude a little bit so that she could go home and reconciliate [sic] and bring the family together a little bit without being so truculent.

88 In the course of an interview with Dr John Carnie, Dr Myers said:

I admit that my behaviour at Geraldton Hospital with [PJD] was ridiculous and childish. I tried to help her and gave her advice - maybe I was too forward. She flipped everything around and it was taken out of context. I should have told her that her psychiatrist will deal with everything when he was back on duty. She flipped it around and gave testimony in her husband's presence. She wasn't really my patient and I was also under stress dealing with my cancerous lesions and the infection I had contracted. There were other patients swearing at staff, it was chaotic.

(Exhibit 19, page 95)

At a later point, the following exchange took place:

HIS HONOUR: ...

Well, what we're dealing with here is why you did not note it?---Well, I agree with you. I should have. But to tell you the truth I wasn't really looking after her psych thing. I was looking after her medical thing. And if I was at if they had asked me to do a psych assessment on her I would definitely have written all that in but and, certainly, if something had happened to her medically there would be no question that I would have done it. So I was in a situation where, to tell you the truth, as regards her psychiatric management, I wasn't really there to be her psychiatrist, to tell you the truth. I was there to be in case there was a medical emergency over the weekend and

And was there a medical emergency over the weekend?---No. Thank God.

So why were you attending her room three to four times a day?---Well, I was talking to her about this because I was trying to help her. I was actually trying my good now experiment, I must tell you. And it turned out that she didn't respond to that very well. So I it's in my health note to Dr Carney that (T:229)

89 Dr Myers was not her treating doctor. If he had cared to inspect the EDN and IPN, Dr Myers would have known that PJD came in with anxiety, depression and suicidal ideation. For Dr Myers to presume that he had any basis upon which to engage with her, particularly about the sexual relations between her and her husband, is indefensible.

90 There is no evidence that PJD's husband had withdrawn his support for PJD, or that they had marital/relationship problems of the type that Dr Myers alleged to justify his comments of a sexual nature, or that PJD should be more supportive of her husband.

91 Dr Myers' explanation that he was providing PJD with family counselling (T:209) is simply not believable on the evidence. It was not his role to do so, he had not met the other members of PJD's family and he had not discussed the matter with Dr van der Veen or Ms Brown (T:209 212).

92 Dr Myers offered no satisfactory explanation for his frequent visits to PJD's room. If there was any therapeutic reason to visit PJD, he would have made notes. The Tribunal can only conclude that his reason for the visits was not based on therapeutic reasons.

93 Dr Myers' case at the hearing was that PJD was a manipulative person portraying herself as a victim (T:35 36). He argued that PJD was manipulating the situation in order to control her family (T:37), rather than that PJD had misunderstood the situation or that her recollection of events was faulty.

94 Dr Myers did not suggest that PJD was delusional or lacked capacity to give a reliable account. Dr van der Veen says she had capacity (Exhibit 26, page 157 paragraph 5). Dr Myers did not challenge Dr van der Veen's evidence on that point. This is significant given that Dr Myers is an experienced medical practitioner and, on his own admission, spent considerable time talking with PJD.

95 Dr Myers contended that PJD manipulated Dr van der Veen and Ms Brown and tricked them into gaining admission in to the Hospital. He contended that she created the appearance of a condition so as to attract the sympathy of her husband and son. The basis of this contention was never proved and is entirely at odds with all of the objective evidence contained in the EDN and IPN and PJD's long standing history of anxiety and depression.

96 In crossexamination, Dr Myers asked Dr van der Veen if PJD was manipulating the situation. Dr van der Veen stated that she had no reason to believe that PJD was manipulating her or that PJD was a manipulative woman (T:135 137).

97 Dr Myers gave evidence that PJD had told him on the first occasion they met that 'she had manipulated the situation' (T:227). Despite agreeing that it was 'an admission worth noting', Dr Myers accepted that he did not make any note of this conversation. Nor did he draw it to the attention of anybody else in the hospital (T:227 228). We do not accept that PJD made such a comment.

98 Dr Myers' allegation that PJD was manipulative, without any basis for that allegation, strikes us as an attempt to attack PJD's integrity so as to detract from Dr Myers' conduct and statements.

24 June 2012 - Dr Myers' telephone conversation with PJD's son

99 PJD's son gave evidence that Dr Myers telephoned him after the alleged incidents (Exhibit 24, page 144). He sent an email to his father about 30 minutes after Dr Myers telephoned him (T:98). This email (Exhibit 24, page 143) states:

He rang me today 24th June at 7:30 pm ... asking me if I could help him with a really really really really really important situation ..

Told me he has been treating mum .. and she has got very upset and walked out on him.. he stated he may have gotten carried away with things .. and wished he had not got involved and waited for the mental health people to treat mum ... but they were away for a few days ..

He stated that mum wants to see me all the time ... he always kept saying that there are many ways to skin a cat .. I think he may be referring to how to deal with problems ...

He asked me to visit mum as soon as I could ... I replied [I] cannot as I am not in Kalbarri... (I did not say where I was) .. He also said he would like to see me ... (that's not going to happen)

I said to him that it is very strange to have a person treating my mum to be contacting me... this has never happened before..

I did not give out any info on anything .... I said to him that he is telling me what I already know and there is stuff that he doesn't even know .. I will be discussing this phone call with my father to find out where your involvement is in all of this.... (he went very quiet on the phone)

to me he sounds very scared maybe trying to cover his ass....

These are just bits and pieces that I can remember as I was not aware of who this guy was and what involvement he has so I was put on the spot a little

He definitely has an accent of some sort .. possibly South Africa ..

Hope all this may help .. speak with you later

100 We accept PJD's son's evidence. The email is a contemporaneous record of the conversation.

101 Dr Myers telephoned PJD's son after discovering PJD had complained about his conduct (T:189). Dr Myers' assertion (i.e. that he was speaking to PJD's son to resolve the family issues) should be rejected. Rather, he was confessing to having 'gotten carried away'. According to PJD's son's contemporary email, Dr Myers sounded 'very scared maybe' and was 'trying to cover his ass...'.

102 Dr Myers' telephone conversation with PJD's son was inappropriate. We find that it was an attempt to dissuade PJD, through her son, from continuing with the allegations.

103 A schedule that sets out the evidence of PJD can be found at the conclusion of these reasons.

104 In this proceeding, PJD's credit was front and centre of Dr Myers' response. As a witness, the Tribunal found PJD to be honest, and with good recall of serious events and discussions, even if not of the precise dates and times. She was adamant that they had occurred and that her statements were true. She was not halfhearted about the crux of the matter (T:61).

105 PJD struggled to give evidence at the final hearing. It was evident that she was angry at having to recount the incident and embarrassed at having to give the evidence of the words spoken to her by Dr Myers. PJD was most anxious at having to give evidence of these matters. Although done with some difficulty, she confirmed the evidence in her statements and elaborated on them to some extent (see, in particular, T:61). PJD gave evidence by video link and crossexamination was undertaken through the President, with the agreement of all parties, on account of PJD's unwillingness to hear Dr Myers' voice. There were a number of occasions when PJD misunderstood the question and became very defensive (eg T:69). On the whole, the Tribunal concluded that PJD was a truthful witness, albeit that she displayed a degree of agitation that interfered with her appreciation and understanding of the questions put to her from time to time.

106 Dr Myers' evidence was far less convincing. He did not explain why he set upon the task of counselling PJD when it was not his role to do so; why he attended her so frequently (and alone) and why he did not make any records in the IPN about his attendances. He was vague in his evidence about his discussions with PJD and did not give a persuasive account of the number of times he attended on PJD, the duration and reason for the attendances or what occurred or was said.

107 In general, Dr Myers had a tendency to take statements out of context for his own advantage (See Dr Velakoulis below). For example, he referred to a note in the IPN on Sunday 17 June 2012 that PJD was 'happy, smiling', which he said was inconsistent with the patient being anxious and depressed (confirming his view that Dr van der Veen had not assessed PJD correctly) or that he had upset her in any way.

108 Dr Myers also asserted that if and when PJD queried staff whether the doctor was a 'real' doctor she was not referring to him but likely referring to Dr Deeba who wore a head scarf for religious reasons and whom he said could be confused with a nurse. Alternatively, if PJD had referred to him, it was because he was more understanding of her than other doctors.

109 These submissions were all based upon supposition and in disregard of the evidence that PJD had given in writing and orally

110 Dr Myers sought to argue that the changes in PJD's emotional state indicated that his 'treatment' of PJD was working.

111 The IPN makes no mention of any discernible change in PJD's behaviour at any stage, such as to be able to infer when it was that Dr Myers attended on PJD alone.

112 PJD's oral evidence supported each of the allegations made against Dr Myers in the Board's application which included a schedule of the allegations and Dr Myers' evidence as to physical contact. Paragraph 8 of the application comprises nine subparagraphs.

113 Paragraph 8.1 of the application alleges that between 14 and 19 June 2012, when PJD was engaged in a crossword in her room at the Hospital, Dr Myers entered PJD's room and shut the door behind him. Dr Myers denies that he shut the door behind him. He says that, in any event, the door had an uncovered glass window in it for observation. He agrees that he entered the room and walked towards the window of PJD's room. It is asserted in paragraph 8.1.3 of the application that whilst enquiring of PJD's wellbeing, Dr Myers put his right arm over PJDs shoulder and fondled one of her breasts without her consent. Dr Myers denies this allegation in his response.

114 PJD gave evidence that she was wearing a bra, nightie and dressing gown and that Dr Myers placed his right arm over her right shoulder and from behind her brushed the side of her right breast whilst she was fully clothed (T:72). In her statement, PJD stated that she was perplexed and thought that she may have imagined the touching or that the touching was an accident (T:71 72). In her evidence before the Tribunal, PJD again stated that on that occasion she thought that the brushing of Dr Myer's hand on the outer layer of her dressing gown at her right breast might have been accidental (T:71 72). Dr Myers gave evidence that he may have put his arm around the PJD's right shoulder when leaning over the chair to see what she was doing and saw she was undertaking a crossword puzzle. Dr Myers stated that he did not believe that he touched PJD's breast and if he did, it was not intentional or purposeful.

115 At paragraph 8.1.4 of the application the Board asserts that immediately after that event, when Dr Myers went to leave PJD's room, Dr Myers suggested to PJD that he 'would have another hug', hugged PJD and again fondled her breast whilst hugging her without her consent. Dr Myer's response to this paragraph is curious. He denies the allegation and states further:

He did verbally cajole her to try to make her relent from her position of umbrage and indignation, that she had come into hospital with, and which caused her to walk out of home and had issues with her son, his wife and her husband, without any consideration of the effects on herself or on them of doing so, other than that she did so, in her words, 'to manipulate the situation'.

116 Dr Myers has not particularised what it is that he did to PJD, which he describes in a vague and conclusionary fashion as 'cajoling PJD'. Nor does Dr Myers identify the words he heard or the actions he saw which caused him to formulate the opinion that PJD had arrived at the Hospital with a position of 'umbrage and indignation'. There is no note in the EDN or IPN that supports such an opinion. Dr Myers' response is entirely without foundation, selfserving and irrelevant, as it has no bearing on the allegation made that Dr Myers fondled PJD's breast whilst giving her a 'hug', which hug she had not asked for or consented to.

117 PJD gave evidence that Dr Myers gave her a second hug before leaving the room and on that occasion there was no mistake in her view that Dr Myers placed his hand on PJD's breast to fondle her breast. In her statement she 'wondered if this had happened or did I imagine it'. PJD was adamant that Dr Myers had fondled her breast during the unwanted hug but that Dr Myers' behaviour was so unexpected and incredulous that she had doubted that it had occurred at all. PJD in her statement and in her oral evidence was not able to identify the date of this occasion. Further, PJD's statement suggests that this occasion occurred before the weekend because she refers to this occasion and then states, 'He also came in over the weekend'.

118 At paragraph 8.2 of the application, the Board alleges and PJD gave evidence that the morning following the above incident, Dr Myers entered her room for another hug and to give PJD a 'breast massage' and said that 'he felt a lot of the ladies needed a breast massage in the hospital' and that she should not 'tell anyone because they'll all want it'.

119 On yet another occasion, the Board alleges (paragraph 8.3 of the application), and PJD gave evidence, that Dr Myers visited her in her room at the Hospital and said 'Goodnight sweetie, I'll see you tomorrow' and kissed her on the cheek whilst she lay in her bed falling asleep (T:78). Dr Myers admitted that he said 'goodnight sweetie' as he had forgotten PJD's name and in the context of checking in on her at night before he completed his shift. Dr Myers otherwise denied the allegation.

120 In paragraph 8.4 of the application, the Board alleges and PJD gave evidence that Dr Myers entered her room and 'he tried to hug me while I was standing - He asked me to kiss him'. On that occasion PJD stated that she pushed Dr Myers away and said 'you don't behave like a doctor'. Again, PJD does not identify when these instances occurred by date or in relation to each other.

121 In paragraph 8.8 of the application, the Board alleges that Dr Myers was 'stroking' PJD's hand and touching and rubbing PJD's knee in front of another lady. PJD gave evidence of this event, explaining that the 'lady' was a patient in an adjoining room with whom she had occasional conversations, referred to at the hearing as Daisy. Again, the date of this event is not identified by the Board or PJD. PJD gave evidence a number of times that all of what was stated by her in her statements was true. This particular allegation was not the subject of specific crossexamination, partly because PJD genuinely found it an ordeal to relive these facts and give evidence of them (see: T:72ff).

122 Dr Myers, in his response and under crossexamination, denied each alleged occasion of hugging PJD, touching her breast, stroking her hand, rubbing her knee and denied that he had asked PJD for a kiss.

123 On a further occasion, it is alleged by the Board (paragraph 8.7 of the application) and attested to by PJD that Dr Myers entered PJD's room at the Hospital and 'patted her twice on the bottom' and said to her that 'I just wanted to smack you on your bottom'. In response, Dr Myers admits in his response and in evidence, that on one instance he 'tapped' PJD over her 'sacro iliac crest' or 'somewhere on the side of her upper thigh' to motion to PJD to eat her lunch (T:187). The Tribunal is persuaded by PJD's evidence and finds that the instances of Dr Myers' physical contact with her in the manner identified in the application did in fact occur and that the contact was not consensual and was indecent. There was no reason for Dr Myers to touch PJD for the reasons explained above. Whilst Dr Myers' touching of PJD's breast as identified in paragraph 8.1.3 of the application may have appeared to have been accidental (even to PJD at the time), the Tribunal finds that, given our finding that he did subsequently touch and fondle her as identified in the application, this instance of contact was a deliberate action on his part.

124 It is clear, even from Dr Myers' evidence, that he had conversations with PJD of a sexual nature.

125 Dr Myers was interviewed by a Dr Dennis Velakoulis, a consultant neuropsychiatrist on 31 July 2012 and 7 August 2012, at the request of the Board. Dr Velakoulis prepared a report dated 25 August 2012 (see Exhibit 18, pages 85 91).

126 Dr Velakoulis gave evidence by telephone. He was not called to give expert evidence but to confirm the accuracy of statements that were attributed to Dr Myers in Dr Velakoulis' report and to give Dr Myers an opportunity to challenge the accuracy of those statements.

127 Dr Velakoulis' report notes (Exhibit 18, pages 87 to 88):

... Dr Myers stated he had seen [PJD] after the initial consult because she had had such a positive reaction to his first visit. He thought that he was addressing the social situation with her and that he could provide her with another view of her circumstances. 'The psychiatrist was not there, the patient was sitting there ...'.

Dr Myers stated that he discussed sexual issues with her in metaphors. 'Take him ([PJD's] husband) out, give him the four wheel drive treatment'. 'ride the dunes'. He spoke with her about going on a honeymoon with her husband. Dr Myers had been trying to get her more involved with her husband sexually[.]

...

Dr Myers had tried to support [PJD] in her marital problems. 'What I said what I suggested she do with her husband'. 'You have five children, something must have happened ... treat it like another honeymoon'. Dr Myers went on to describe a number [sic] his use of 'florid language' to explain to [PJD] what he meant. eg to put her husband's penis between her breasts. He offered his own place for them if they wanted to have honeymoon. Dr Myers could not explain why he had opened this discussion with [PJD] other than to say that he was being supportive and that he had responded to her original positive comments about his manner.

...

Dr Myers ended by apologising for the incident with the lady in Geraldton. 'What I did was childish and ridiculous. I cannot explain it any more. It[']s so ridiculous , it[']s a joke. It is just so out of context. She asked me what can I do (about my husband) so I told her, but I was too florid. I told her is [sic] she wanted her son back she had to show her husband that she loved him'.

128 In the course of Dr Myers' crossexamination, the following exchange took place:

What does the four wheel drive treatment mean, as a sexual metaphor?---Well, it's not. It was just that it was contextual in the sense that he had to take a four wheel drive to get to the dunes, and I said, 'Well go with him. And take you know, go with him. Just be with him and take a picnic, take a flask as we used to do. Go on a picnic, take the dog. I said I don't mind if you leave the dog in the dunes, but I mean, go up there and be supportive, and if you show that you're supportive of him, of what [PJD's son] wants him to do, then that might turn things around for you and [PJD's son] might talk to you.' Because that's what I meant by - - -

And what does ride the dunes mean, as a sexual metaphor?---Well, it doesn't. It doesn't. I mean you would have to be very imaginative to have a to make it explicit.

(T:204)

129 It is evident from Dr Velakoulis' report that Dr Myers was using four wheel drive and sand dunes as sexual metaphors. Dr Myers' suggestions that he was not using the dunes as a sexual metaphor cannot be accepted. It was an attempt to rewrite history.

130 The Tribunal notes that PJD did not refer to the dunes in her evidence. However, she did allege that Dr Myers said 'he wanted to put his cock between her breasts' (allegation 8.6). In the context of Dr Myers' overall statements as alleged by PJD, it is not surprising that the reference to the dunes might not have loomed large in her consciousness.

131 Dr Myers admitted that he had used what he described as florid language (T:208).

132 Dr Myers told Dr Velakoulis of his use of 'florid language', but his explanation that this was simply to encourage PJD to engage in sexual activity with her husband should be rejected. It presupposes relationship problems between PJD and her husband and that her husband had withdrawn his support. That is contrary to all the evidence including that of Dr van der Veen and Ms Brown to the effect that PJD's husband was supportive of PJD (Exhibit 26, page 156, paragraph 4).

133 It is extraordinarily difficult to understand Dr Myers' comments, even if they were as reported by him.

134 The Board alleges (paragraph 8.5, 8.6 and 8.9) that Dr Myers had conversations with PJD of a sexual nature. PJD has given evidence that:

Several times he told me he wanted to 'suck his cock' & how he wanted to put his cock between my breasts and rub his cock all over my body.

135 In her statement, PJD gave evidence that Dr Myers stood next to her and said, 'Feel it. See how stiff you're making me', and that 'he couldn't help himself'.

136 Although in her first statement PJD stated that she responded to this last statement by telling Dr Myers to 'go away and behave himself', she said in her second statement that she 'froze' and 'must have been in shock'. During her oral evidence, PJD remained shocked and resentful that she had been spoken to in that manner.

137 On 'various' other occasions it is alleged (paragraph 8.9 of the application) that Dr Myers suggested that they (he and PJD) could make 'passionate love over the computer'; she should think of him when she made love to her husband; he would like to 'get inside her robe with her'; she could stay with him one weekend as he had a double bed and she was 'sumptuous, beautiful and sexy'.

138 Dr Myers denied in evidence that he had any of the conversations alleged. He gave evidence to the Tribunal and admitted that in response to PJD's question to him, 'what should I do', concerning her familial disputes, he did use 'florid' language and said to her that she should engage in the sexual activities referred to in her evidence but not with himself, but with her husband. Dr Myers gave evidence that this conversation began on Sunday 17 June 2012 (T:200).

139 The Tribunal accepts the evidence of PJD and finds that Dr Myers spoke the words to PJD as identified in the application. The Tribunal does not accept Dr Myers' evidence to the Tribunal that he made sexually suggestive to PJD only in relation to her husband and herself.

140 In addition, the Tribunal also finds (on his own admission) that Dr Myers made sexually suggestive remarks to PJD in relation to her and her husband although the Board has not pleaded that fact in support of it application.

141 We have considered each of the particulars alleged against Dr Myers in paragraph 8 of the application and we find each of the allegations proved.

142 We find that Dr Myers conduct as particularised in paragraph 8.1 was intentional and that it was of a sexual nature.

143 We find that the statements set out in paragraph 8 were of a sexual nature.

144 We have applied the onus of proof according to the principles of Briginshaw and we feel an actual persuasion of the occurrence of the relevant facts and find those facts in reaching our determination against Dr Myers.

145 PJD was plainly vulnerable when she was admitted to the Hospital because of her psychiatric condition.

146 A patient in a hospital should feel secure in that environment.

147 A patient should be able to trust a doctor working in the hospital not to indecently assault her or make comments of a sexual nature.

148 The incidents occurred over three days. It was not an isolated incident.

149 PJD was a deeply vulnerable and distressed woman whom Dr Myers indecently assaulted and made sexual remarks to for his own sexual gratification. Dr Myers chose to invite himself into PJD's hospital room when he simply had no reason to enter her room, except on ward rounds.

150 In the Tribunal's view, the conduct and statements and each instance of the same, contravene a right thinking person's standards.

MEDICAL BOARD OF AUSTRALIA and MYERS [2014] WASAT 137 (19 February 2015)

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (380 paragraphs)

MEDICAL BOARD OF AUSTRALIA and MYERS [2014] WASAT 137 (19 February 2015)

Legislation Cited (1)

Cases Cited (11)