Allegations referred to VCAT pursuant to section 59(2)(g) of the HPR Act

Allegations between approximately 1998 and 30 June 2007 inclusive

1. On 21 May 1999, Dr John Barry Myers engaged in unprofessional conduct as defined in paragraphs (a) and/or (b) and/or (c) of the definition of 'unprofessional conduct' in section 3(1) of the Medical Practice Act 1994 (Vic) (MP Act) in that he engaged in sexual intercourse with his patient, P.

(a) Between approximately 10.00pm and 11.30pm on 21 May 1999, Dr Myers visited P at her home and engaged in sexual intercourse with her.

1. Between approximately 1998 and approximately 2000, Dr Myers engaged in unprofessional conduct as defined in paragraphs (a) and/or (b) and/or (c) of the definition of 'unprofessional conduct' in section 3(1) of the MP Act in that he transgressed professional boundaries by engaging in an inappropriate personal and/or emotional relationship with his patient, P.

(a) Dr Myers called P pet names, such as 'fruit cake'.

(b) In or around 1999, Dr Myers stated to P words to the effect that 'I found you, I have you forever. You're my miracle of happiness';

(c) In or around 1999, Dr Myers stated to P words to the effect that 'Oh I'll suffer for ever if you deserted me or I lost you. I'd be gone';

(d) In or around 1999, Dr Myers stated to P words to the effect that 'I'd be a goner and lost without you for ever';

(e) On or about 7 November 1999, Dr Myers stated to P words to the effect that 'Our friendship is everlasting, it is higher than anything and we go through anything and everything'.

1. Between approximately 1998 and 30 June 2007, Dr Myers engaged in unprofessional conduct as defined in paragraphs (a) and/or (b) and/or (c) of the definition of 'unprofessional conduct' in section 3(1) of the MP Act in that he did not terminate and appropriately transition his professional relationship with his patient, P (being a patient who he knew, or ought to have known, had a history of significant psychological issues), in circumstances in which in knew, or ought to have known, that P was or had become infatuated with him and/or had or had previously developed feelings of affection for him and/or considered or had previously considered that a friendship existed between them.

(a) Between approximately 1999 and 2000, P wrote numerous pieces of correspondence to Dr Myers in which she variously expressed her love for him and/or expressed her affection for him and/or stated that she considered that a friendship existed between them.

(b) In approximately early 1999, P gave Dr Myers an audio tape containing upon the cover of which P wrote 'Songs from the 60s, 70s and 80s with a lot of meaning', containing songs with titles such as 'Hold me now', 'My love', and 'I only want to be with you'.

(c) On a date or dates unknown, P told Dr Myers he was her 'miracle and that she wanted to marry him.

(d) The professional relationship between Dr Myers and P continued until approximately June 2008, when P terminated the professional relationship during a house call by Dr Myers.

1. Between approximately 1998 and 30 June 2007, Dr Myers engaged in unprofessional conduct as defined in paragraphs (a) and/or (b) and/or (c) of the definition of 'unprofessional conduct' in section 3(1) of the MP Act in that he variously transgressed professional boundaries in his contact with P and/or members of her family.

(a) Dr Myers' transgression of professional boundaries in his contact with P and/or members of her family include, but are not limited to, the following:

• (i) Dr Myers variously made house calls to P during which he provided medical treatment to P and/or members of her family, in circumstances where there was no acute medical issue requiring Dr Myers to make house calls; and/or

• (ii) on or about 9 December 2000, Dr Myers attended P's wedding to her second husband and made a speech; and/or

• (iii) Dr Myers variously disclosed personal information to P and her family about his own family circumstances; and/or

• (iv) on a date unknown, Dr Myers offered to allow P to take over the lease of a unit that he owned and look after it for him; and/or

• (v) in or around 2000, Dr Myers accepted P arranging for a Rabbi to officiate at the Bar-Mitzvah of one of his sons; and/or

• (vi) in or around 1999, Dr Myers called upon P to assist him after he was involved in a car accident by calling her from hospital and requesting that she pick up his damaged car and his belongings left inside it; and/or

• (vii) in or around 1999, Dr Myers requested P to write a letter to the Board in relation to allegations that he faced from a notifier at that time; and/or

• (viii) in or around 2005, Dr Myers asked P to supervise in his rooms a patient he had removed from care whilst he made various telephone calls in relation to the circumstances; and/or

• (ix) Dr Myers variously requested P to do various jobs for him; and/or

• (x) on a date unknown, Dr Myers asked P to liaise with the local Council to have rescinded a parking fine he had received; and/or

• (xi) on a date unknown, Dr Myers asked P to dry-clean his suit on an occasion on which it had become soiled; and/or

• (xii) Dr Myers variously mocked P's religious beliefs; and/or

• (xiii) on a date or dates unknown, Dr Myers inappropriately involved himself in the affairs of P's family members, in circumstances in which he knew, or ought to have known, that doing so had a risk of being harmful to his therapeutic treatment of P, in that he counselled and/or provided advice to P's son in relation to his schooling and potential employment; and/or

• (xiv) in approximately 2004, Dr Myers accompanied her son whilst he went to a local park and drank alcohol with other teenagers; and/or

• (xv) on dates unknown, Dr Myers inappropriately involved himself in the affairs of P's family members, in circumstances in which he knew, or ought to have known, that doing so had a risk of being harmful to his therapeutic treatment of P, in that he offered to support, and/or did support, P's daughters application for youth allowance and/or her return to school; and/or

• (xvi) Dr Myers variously discussed financial matters with P, with the result that he became aware of the quantum of an inheritance left to P by her late mother, and of the financial results of various property transactions conducted by P.

1. Between approximately 1998 and 30 June 2006, Dr Myers engaged in unprofessional conduct as defined in paragraphs (a) and/or (b) of the definition of 'unprofessional conduct' in section 3(1) of the MP Act in that he regularly and frequently visited P at home, including out of hours and/or late at night, to provide medical care in circumstances in which he had not been requested to attend and/or no acute physical or medical issue existed necessitating Dr Myers to make a house call or house calls to P.

Allegations between 1 July 2007 and approximately June 2008 inclusive

1. Between 1 July 2007 and approximately June 2008, Dr Myers engaged in unprofessional conduct as defined in paragraphs (a) and/or (b) of the definition of 'unprofessional conduct' in section 3(1) of the Health Professions Registration Act 2005 (Vic) (UPR Act) or professional misconduct as defined in paragraphs (a) and/or (b) of the definition of 'professional misconduct' in section 3(1) of the HPR Act in that he did not terminate and appropriately transition his professional relationship with his patient, P (being a patient who he knew, or ought to have known, had a history of significant psychological issues), in circumstances in which in knew, or ought to have known, that P was or had become infatuated with him and/or had or had previously developed feelings of affection for him and/or considered or had previously considered that a friendship existed between them.

(a) Between approximately 1999 and 2000, P wrote numerous letters to Dr Myers in which she variously expressed her love for him and/or expressed her affection for him and/or stated that she considered that a friendship existed between them.

(b) In approximately early 1999, P gave Dr Myers an audio tape containing upon the cover of which P wrote 'Songs from the 60s, 70s and 80s with a lot of meaning', containing songs with titles such as 'Hold me now', 'My love', and 'I only want to be with you'.

(c) On a date or dates unknown, P told Dr Myers he was her 'miracle' and that she wanted to many him.

(d) The professional relationship between Dr Myers and P continued until approximately June 2008, when P terminated the professional relationship during a house call by Dr Myers.

1. Between 1 July 2007 and approximately June 2008, Dr Myers engaged in unprofessional conduct as defined in paragraphs (a) and/or (b) of the definition of 'unprofessional conduct' in section 3(1) of the Health Professions Registration Act 2005 (Vic) (HPR Act) or professional misconduct as defined in paragraphs (a) and/or (b) of the definition of 'professional misconduct' in section 3(1) of the HPR Act in that he variously transgressed professional boundaries in his contact with P and/or members of her family.

(a) Dr Myers' transgression of professional boundaries in his contact with P and/or members of her family include, but are not limited to, the following:

(i) Dr Myers variously made house calls to P during which he provided medical treatment to P and/or members of her family, in circumstances where there was no acute medical issue requiring Dr Myers to make house calls; and/or

(ii) Dr Myers variously disclosed personal information to P and her family about his own family circumstances; and/or

(iii) on a date unknown, Dr Myers offered to allow P to take over the lease of a unit that he owned and look after it for him; and/or

(iv) Dr Myers variously requested P to do various jobs for him; and/or

(v) on a date unknown, Dr Myers asked P to liaise with the local Council to have rescinded a parking fine he had received; and/or

(vi) on a date unknown, Dr Myers asked P to dry-clean his suit on an occasion on which it had become soiled; and/or

(vii) Dr Myers variously mocked P's religious beliefs; and/or

(viii) in or around 2008 or 2009, Dr Myers inappropriately involved himself in the affairs of P's family members, in circumstances in which he knew, or ought to have known, that doing so had a risk of being harmful to his therapeutic treatment of P, in that he supported P's husband in relation to an intervention order she had taken out against him, despite her telling him that Mr Zancola had abused her; and/or

(ix) on a date or dates unknown, Dr Myers inappropriately involved himself in the affairs of P's family members, in circumstances in which he knew, or ought to have known, that doing so had a risk of being harmful to his therapeutic treatment of P, in that he counselled and/or provided advice to P's son in relation to his schooling and potential employment; and/or

(x) on dates unknown, Dr Myers inappropriately involved himself in the affairs of P's family members, in circumstances in which he knew, or ought to have known, that doing so had a risk of being harmful to his therapeutic treatment of P, in that he offered to support, and/or did support, P's daughter's application for youth allowance and/or her return to school; and/or

(xi) Dr Myers variously discussed financial matters with P, with the result that he became aware of, amongst other things, the quantum of an inheritance left to P by her late mother and the financial results of various property transactions conducted by P.

1. Between approximately 30 June 2007 and approximately June 2008, Dr Myers engaged in unprofessional conduct as defined in paragraphs (a) and/or (b) of the definition of 'unprofessional conduct' in section 3(1) of the HPR Act in that he regularly and frequently visited P at home, including out of hours and/or late at night, to provide medical care in circumstances in which he had not been requested to attend and/or no acute physical or medical issue existed necessitating Dr Myers to make a house call or house calls to P.

[1] Pursuant to section 59(2)(g) of the Health Professions Registration Act 2005 (HPRA)

[3] On 1 July 2010, the Health Practitioner Regulation National Law (Victoria) Act 2009 came into operation

[4] In [1938] HCA 34; (1938) 60 CLR 336 at p 361-2 per Dixon J. See also Medical Board of Australia v Skehan [2011] VCAT 2424 at [81] to [83]; Medical Practitioners Board of Victoria v Grolaux [2009] VCAT 901.

[6] As noted by Justice Morris in Vissenga v MPBV [2004] VCAT 1044, at [30]

[8] Campbell v Dental Board of Victoria [1999] VSC 113 at [23 - 24].

[9] Per Justice Kellam, in Parr v Nurses Board of Victoria (1998) 16 VAR 118 at [123].

[10] Justice Morris in Kozeniauskas v Dental Board [[2005] VCAT 1058 at [7]

[13] Allegations 3 and 6; 4 and 7; 5 and 8.

[14] "Whatever houses I may visit, I will come for the benefit of the sick, remaining free of all intentional injustice, of all mischief in particular of sexual relations with both female and male persons be they free or slaves." Translation from the Greek from Ludwig Edelstein, John Hopkins Press 1943.

[15] For example the parking fine incident, his request for help after a car accident, his evidence in relation to an investment property he owned, his agreement that she asked him to go and see what her son was doing in the park, and his agreement that he accepted her offer to have a suit dry cleaned.

[17] Referred to in more detail in relation to allegation 4

[18] Hayne J, 7 December 1992, unreported. At page 21, Hayne J stated "in my view it is not right to take the conduct, as the appellant sought to do, and characterise each separate part of the conduct as if it stood alone. The conduct was to be judged as a whole..."

[19] See for example, Williams v Medical Practitioners Board of Victoria [2008] VCAT1784 where the Tribunal found that the attendance by Dr Williams, a psychiatrist, at his patient's son's bah mitzvah and making a speech at the bah mitzvah amounted in the circumstances of that case to a serious boundary transgression and constituted unprofessional conduct of a serious nature.

[20] For example, February 16 and 17, 23 and 24, April 25, 26, 27 and 28, May 16, 17 and 18, May 24, 25, 26, 27 and 28, June 6, 7, 8 and 9, July 18, 19 and 20, July 25, 26, 27, 28, 29 and 30, with a similar pattern in subsequent months, ending on 29 November 1999.