HEALTH PRACTITIONER - MEDICAL PRACTITIONER - DISCIPLINARY PROCEEDINGS - where the practitioner engaged in a sexual relationship with a former patient - where practitioner is no longer registered - where the former patient has a history of depression and heavy drinking - whether the practitioner has engaged in professional misconduct - whether the practitioner should be reprimanded - whether the practitioner should be prevented from applying for registration for a period - whether the practitioner should pay the Medical Board's costs in the proceedings

Health Practitioner Regulation National Law (Queensland) s 5, s 138, s 196(1)(b)(iii), s 196(2)(a), s 196(4)

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 66

Re A Medical Practitioner [1995] 2 Qd R 154, cited

[1] The Medical Board of Australia has brought a disciplinary proceeding against Dr Chiappalone on the ground that following an inappropriately short interval after the termination of a treating relationship with a female patient, he commenced and maintained a personal and sexual relationship with the former patient in breach of his obligations as a medical practitioner. Dr Chiappalone has ceased medical practice and is no longer a registered medical practitioner. By virtue of s 138 Health Practitioner Regulation National Law (Queensland) ("National Law"), these proceedings may still be determined.

[2] At all material times, Dr Chiappalone was registered as a medical practitioner and was working as a general practitioner in Stanthorpe. As at 10 November 2010, both the patient and Dr Chiappalone were residents of Stanthorpe. They were acquainted with each other from approximately 2006. They knew each other in a professional capacity because the former patient was a phlebotomist at the Queensland Medical Laboratory (QML) clinic in Stanthorpe and Dr Chiappalone would regularly attend at the clinic for blood tests for diabetes. The former patient and Dr Chiappalone engaged in general conversations during those attendances.

[3] The patient consulted Dr Chiappalone on three occasions; on 10 November 2010, 24 November 2010 and 15 December 2010. Dr Chiappalone was not the patient's regular general practitioner.

[4] At all relevant times, the patient had another general practitioner. The patient made an appointment on 10 November 2010 to discuss a medical issue. During that consultation, the patient made Dr Chiappalone aware that she had a history of depression and was taking Zoloft. Dr Chiappalone requested that certain blood tests be carried out. On 24 November 2010, Dr Chiappalone requested, among other investigations, that CT imaging be performed of the patient's abdomen. No adverse determinations were made. The patient told Dr Chiappalone during the course of the three consultations that she drank quite heavily. He was not aware of the extent of the patient's drinking and her blood tests did not support a history of excessive drinking. The patient says that all three consultations were conducted in an appropriate professional manner. At the conclusion of the third consultation on 15 December 2010, Dr Chiappalone referred the patient to a psychologist in Stanthorpe.

[5] In about May 2011, the patient sent a text message to Dr Chiappalone and asked him whether he wanted to meet a friend of hers because they appeared to have common interests. Dr Chiappalone ended up meeting with the patient's friend, although that relationship did not continue. From 30 June 2011 until 26 August 2011, the former patient and Dr Chiappalone engaged in regular text messaging and telephone conversations.

[6] On Sunday 17 July 2011, the former patient sent Dr Chiappalone a text message inviting him to lunch and a jazz concert at a local vineyard. They had lunch together at which time the former patient drank a significant quantity of wine. After the lunch, the former patient went back to Dr Chiappalone's house where she consumed three or four glasses of Stone's Green Ginger Wine. The former patient sought to initiate physical contact. What occurred subsequently is in dispute.

[7] On 23 August 2011, Dr Chiappalone went to the former patient's residence in the evening. It is not in dispute that as at 23 August 2011 Dr Chiappalone suffered from diabetes mellitus, hypertension, osteoarthritis, lumbar spine disc injury/disease including nerve/sensory symptoms which ultimately required surgery on 5 September 2011, erectile dysfunction, heart disease and a left knee injury.

[8] It is not in dispute that on 27 August 2011, the former patient attended the Stanthorpe Hospital for medical attention reporting vaginal bleeding, vaginal discomfort and lower abdominal pain following sexual activity four days earlier.

[9] The former patient saw Dr Hadden at the Stanthorpe Hospital. The examination revealed superficial bruising and abrasions below the clitoris, superficial bruising and abrasions inferior to the vaginal opening at the 4 to 5 o'clock position and superficial bruising and abrasions inferior to the vaginal opening at the 6 to 8 o'clock position. Those areas were tender to palpation. Furthermore, a speculum examination was performed revealing a white vaginal discharge that appeared to be consistent with normal physiological discharge. Dr Hadden conducted bimanual examination and no abnormality was detected.

[10] The former patient was aged 55 at the time of the alleged relationship. She swore an affidavit on 14 August 2013 and gave evidence before the Tribunal. Her evidence is that after the medical appointments in November and December 2010, Dr Chiappalone continued to have his blood tests at QML. The former patient says that on one of these occasions Dr Chiappalone asked whether she had a partner or husband. When she said she didn't, Dr Chiappalone said that he was available. In May 2011, the former patient sent Dr Chiappalone a text message asking whether he wanted to meet a female friend of hers. The former patient thought that her friend and Dr Chiappalone had things in common. Although the former patient's friend and Dr Chiappalone had lunch, a relationship did not develop.

[11] By late 2011, the former patient and Dr Chiappalone were exchanging text messages regularly. The text messages are exhibited to the former patient's affidavit. They reveal a large number of text messages in the period 30 June 2011 to 26 August 2011. The former patient says that on Sunday 17 July 2011, she was feeling quite lonely. She sent Dr Chiappalone a text message inviting him to lunch and a jazz concert. During lunch, the former patient consumed a bottle of wine.

[12] After lunch, they returned to Dr Chiappalone's home where the former patient drank a further three or four glasses of Stone's Green Ginger Wine. The former patient says that she initiated physical contact. She says that Dr Chiappalone undid his trousers and she performed oral sex upon him. She says that at one stage Dr Chiappalone said that she would now need to find another doctor.

[13] The former patient says that thereafter, Dr Chiappalone came to her home regularly. This would often be on a Tuesday night. She says that Dr Chiappalone would bring pizza. On these occasions the former patient says that she performed oral sex on Dr Chiappalone. She says that because Dr Chiappalone had erectile dysfunction, they never had actual sexual intercourse. Dr Chiappalone would try to reciprocate the sexual acts by inserting his fingers into her vagina and performing clitoral stimulation.

[14] The final sexual encounter occurred on 23 August 2011. The former patient was feeling depressed. At 7.27 am, Dr Chiappalone sent a text message asking if she was still depressed. The former patient quickly replied, "Absolutely." An exchange of text messages led to an arrangement that Dr Chiappalone would visit the former patient between 5.30 pm and 6.00 pm. In a text at 4.46 pm, Dr Chiappalone said, "U wanna/need to play?" The former patient replied, "Cant think about that at the moment." Once again, the former patient performed oral sex on Dr Chiappalone according to her evidence. She says that he then inserted his fingers in her vagina. The former patient says that Dr Chiappalone kept pushing his fingers deeper inside her vagina. She felt discomfort and pain. She pushed his hand away. She said that Dr Chiappalone made a remark along the lines, "Fisting ... I almost got it all in."

[15] After Dr Chiappalone returned home, he sent the former patient a text message at 7.38 pm saying, "Thanck u; that was lovely !" She replied, "Ditto."

[16] The former patient was anxious about what had occurred because she had an intra-uterine contraceptive device. She noticed bleeding from the vaginal area.

[17] There were further text messages between Dr Chiappalone and the former patient.

[18] On 27 August 2011, the former patient attended the Stanthorpe Hospital where she was examined by Dr Hadden.

[19] Dr Chiappalone was aged 67 at the time of the alleged relationship. He provided a statutory declaration dated 16 August 2012 to the Medical Board of Australia. He also relied on his affidavit affirmed on 19 December 2013 and filed on 20 December 2013. Dr Chiappalone did not give evidence before the Tribunal. He said in his written materials that the former patient initiated social contact. He agreed that after the lunch and jazz concert on 17 July 2011, the former patient returned to his house. He said that the former patient lunged at him with puckered lips and attempted to rub his genitals. He says that he rebuffed her approach and made it very clear that he was not interested in a sexual relationship.

[20] He concedes that there were further occasions when the former patient tried to initiate sexual activity; however, he says that on each occasion, he made it clear to her that he was not interested.

[21] In relation to the occasion on 23 August 2011, Dr Chiappalone said that he visited the former patient even though his mobility was severely limited by back and knee pain. He says that he was physically incapable of engaging in any sexual activity at that time.

[22] Dr Chiappalone acknowledged being playful and flirtatious in his text messages. He recognised that in hindsight he should have ceased all social contact with the former patient once he realised that she was interested in sexual activity.

[23] I accept the evidence of the former patient. I am comfortably satisfied that her evidence of the relationship is truthful, accurate and reliable. The cross-examination of the former patient by Mr Ryan did not expose any inconsistencies that cause me to have any doubts about her credibility and reliability. The former patient conceded drinking significant quantities of alcohol, but that did not result in her having any difficulty in recalling the details of sexual intimacy. One would expect her to have a good recollection of that type of sexual activity.

[24] Moreover, the former patient's evidence is supported by the text messages. The nature and content of the text messages is consistent with the existence of a sexual relationship. The first sexual encounter was on 17 July 2011. On 18 July 2011 at 3.29 am, Dr Chiappalone sent a text message saying, "For me there was no anticipation of what occurred, but the unanticipated accomplishment was delightful beyond description." Later that morning he sent a text message saying, "Where is the band playing today? My baton is on the ready !" In context, this seems to be a clear reference to Dr Chiappalone's penis.

[25] On 19 July 2011 at 5.33 am, Dr Chiappalone sent the former patient a text message saying, "I thought we related extremely well, as I remarked last nite, after intimacy." Again, that is strongly indicative of there having been sexual intimacy between Dr Chiappalone and the former patient. On 28 July 2011, the former patient said in a text message that she enjoyed their intimacy as she always did. On one occasion when the former patient offered to pay for a dinner outing, Dr Chiappalone said, "U pay me in other ways." In an exchange on 22 August 2011, Dr Chiappalone said, "I can feel daily sucking away. Is that not so?" The former patient replied, "Oral." He replied, "I like u doing that." Later, on 23 August 2011, Dr Chiappalone said in a text message, "Is it just the sucking u miss?" The former patient replied, "I enjoy it and i enjoy giving you pleasure."

[26] This is just a sample of the text messages. Overall, and in context, they clearly support the existence of an intimate sexual relationship between Dr Chiappalone and the former patient. Moreover, Dr Chiappalone's explanation for his text messages as being flirtatious is unconvincing and implausible. In addition, his evidence has not been tested by cross-examination. His written materials gave a general explanation for the text messages, but did not descend into an explanation of some of the explicit text messages. The text messages between the former patient and Dr Chiappalone strongly support the existence of an intimate sexual relationship. Moreover, I do not consider that Dr Chiappalone's physical condition at any time would have prevented him from engaging in the sexual acts described by the former patient.

[27] The former patient's evidence is also strongly supported by the evidence of Dr Hadden. As I have mentioned, on examination of the former patient's external genitalia, Dr Hadden noted superficial bruising and abrasions below the clitoris. There was also superficial bruising and abrasions inferior to the vaginal opening at the 4 to 5 o'clock position and superficial bruising and abrasions inferior to the vaginal opening at the 6 to 8 o'clock position. These areas were tender to palpation. Dr Hadden expressed the opinion that the sexual conduct described by the former patient was consistent with the findings that she made on her examination.

[28] The factual findings necessitate consideration as to whether Dr Chiappalone has behaved in a way that constitutes professional misconduct. The term "professional misconduct" is defined in section 5 of the National Law:

professional misconduct, of a registered health practitioner, 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.

[29] The applicable guidelines are contained in a Statement on Sexual Relationships between Health Practitioners and their Patients issued by the Medical Board of Queensland on 22 February 2005. The section dealing with relationships between health practitioners and former patients states:

4.1 A former patient is a person who was in a treating relationship with the health practitioner.

4.2 A sexual relationship between a health practitioner and a former patient will be considered individually by the relevant Board. It may be deemed to be improper and unprofessional if any of the following apply:

4.2.1 the professional relationship involved psycho-therapy, long term counselling or support;

4.2.2 the patient suffered a disorder likely to impair judgement or hinder decision making;

4.2.3 the health practitioner is aware that the patient had been sexually abused in the past;

4.2.4 the patient was under the age of 18 when the personal / sexual relationship commenced;

4.2.5 the treating relationship has not been properly terminated, with appropriate referral arrangements for continuing and future health needs made.

4.3 In any case of a sexual relationship between a health practitioner and a former patient it will be deemed improper and unprofessional if it can be shown that there was any exploitation of power imbalance or of any knowledge or influence gained by the practitioner within the professional relationship.

4.4 Where violation of the professional boundary occurs as a result of the behaviour of the patient, but not of the health practitioner, the health practitioner should seek the opinion of a member of the same profession. Any decision made to either continue or terminate must always be in the best interests of the patient.

4.5 The termination of the relationship between a health practitioner and a patient prior to the commencement of sexual activity may be raised as an exonerating or mitigating factor by the health practitioner. The strength of the factor will depend on a number of considerations including (but not limited to ):

• 4.5.1 the strength and duration of the treating relationship;

• 4.5.2 the time interval since the end of the professional relationship;

• 4.5.3 the existence of an intervening period of no contact;

• 4.5.4 the existence of a period of social contact prior to the initiation of sexual contact;

• 4.5.5 whether another health practitioner was treating the patient when the sexual activity began.

Termination and referral to another practitioner alone may not be considered sufficient preparation for establishing a sexual relationship with a former patient.

4.6 Similar considerations apply to relationships with family members of former patients.

4.7 The presence of the health practitioner in a small community will be a factor to be noted when cases of a relationship with a former patient are individually assessed.

[30] In Re A Medical Practitioner[1] Dowsett J said:

It is professional misconduct to exploit a discontinued professional relationship. Thus, a medical practitioner should only commence or continue an association with a former patient if there can be no suggestion that he or she is exploiting a dependency in the course of the professional relationship.

[31] In an article titled, "Sexualization of the doctor-patient relationship: is it ever ethically permissible,"[2] the author, Katherine Hall, makes the point that:

... any privileged knowledge gained under the conditions of the original power imbalance of doctor and patient cannot be 'unlearnt' or forgotten, and this can continue as an unfair advantage for the doctor. Information gained in such a power imbalance can be artificially intimate - one does not normally begin to discuss details of sexual function within a few minutes of meeting a stranger, for example, but this frequently happens in general practice consultations. Secondly, given the strength of Hierarchical power in determining one's overall power in the doctor-patient relationship (as illustrated by the case history), it is hard to see how a relationship of equals could develop from such unequal beginnings.

[32] There is clearly no absolute prohibition against a medical practitioner commencing an intimate relationship with a former patient. In the present case, an important factor is that the former patient discussed her ongoing mental health issues with Dr Chiappalone. At the first appointment, he gave her a sample pack of the antipsychotic drug Zyprexa. Dr Chiappalone said that at the first consultation on 10 November 2010, he took a history from the patient that included depression. During the third and final consultation, he referred the patient to a psychologist for counselling. The patient had also told Dr Chiappalone during a consultation that she drank quite heavily. The former patient's depression and heavy drinking were likely to impair her judgment and hinder her decision-making. Dr Chiappalone's text message on 23 August 2011 at 7.27 pm inquired whether the former patient was still depressed. He therefore had ongoing knowledge of her mental state.

[33] I have taken into account that the treating relationship was of short duration consisting of three appointments; on 10 November 2010, 24 November 2010 and 15 December 2010. In addition, I have taken into consideration that the former patient and Dr Chiappalone had known each other since 2006 through the former patient's employment at QML. I have also taken into account that the intimate sexual relationship did not commence until 17 July 2011 which is some months after the end of the treating relationship. Also, it was the former patient who initiated sexual intimacy. I have also noted that in the period between December 2010 and July 2011, the former patient remained under the care of her usual general practitioner.

[34] Notwithstanding these factors, there was a power imbalance between the former patient and Dr Chiappalone. The former patient was clearly vulnerable. She suffered depression and had problems with alcohol. Those factors were well known to Dr Chiappalone. In my view, Dr Chiappalone behaved in a way that constitutes professional misconduct. Therefore, pursuant to section 196(1)(b)(iii) National Law, the Tribunal finds that Dr Joseph Chiappalone has behaved in a way that constitutes professional misconduct.

[35] The purposes of disciplinary proceedings are to maintain professional standards and public confidence in the profession and to protect the public. The conduct of Dr Chiappalone was opportunistic rather than predatory. Nevertheless, his conduct of the proceedings shows a complete lack of insight on his part. His written materials contained unwarranted attacks on the character of the former patient. That does not reflect well on him. Dr Chiappalone has sold his medical practice and surrendered his medical registration. Section 196(4) of the National Law provides that the Tribunal may disqualify him from applying for registration for a specified period. The Board seeks disqualification for 12 months.

[36] Mr Ryan, who appeared for Dr Chiappalone submitted that a fine should be imposed. In my view, a fine would not be adequate in the circumstances of this particular case. A suspension would have been appropriate if Dr Chiappalone was registered. Therefore, in the circumstances, I intend to impose a disqualification period for 12 months as well as a reprimand. These will be the orders then:

Firstly, pursuant to section 196(2)(a) of the National Law, Dr Chiappalone is reprimanded.

Secondly, pursuant to section 196(4) of the National Law, Dr Chiappalone is disqualified from applying for registration for 12 months.

[37] Generally, a person who is found to have behaved in a way that constitutes professional misconduct should pay the Board's costs. The Board has an important role in maintaining professional standards. The Board has limited resources.

[38] By letter dated 6th September 2013, Dr Chiappalone's solicitors made a without prejudice offer, save as to costs. By that letter, Dr Chiappalone's solicitors made an offer by which he would concede the issue of professional misconduct, but only on the basis of a personal relationship with the former patient. He was not prepared to concede the existence of a sexual relationship. Moreover, he conceded that the appropriate sanction would be that he not be permitted to reapply for registration for a period of 12 months. It was made clear in that letter that Dr Chiappalone would retire from medical practice and withdraw his registration.

[39] The Tribunal has found that a sexual relationship existed. That was an important issue and one that the Board was bound to pursue. That being the case, there is no justification for any order, other than that Dr Chiappalone pay the Board's costs. Therefore, Dr Chiappalone must pay the Medical Board's costs of the proceedings to be assessed on the District Court scale, if not agreed.

[40] I order pursuant to s 66 Queensland Civil and Administrative Tribunal Act 2009, that the publication of any material identifying the patient, or by which she might be identified, is prohibited.

[1] [1995] 2 Qd R 154 at 163.

[2] Family Practice, Oxford University Press 2001, Vol 18, No. 5 pp 511 - 515.