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[2010] VCAT 1840
Victorian Civil and Administrative Tribunal
2010-11-16
President Judge P, Mr J
Original judgment source is linked above.
The applicant contended before the tribunal the respondent's conduct amounted to 'unprofessional conduct' within subs (a) and (b) of the definition found in s 3(1) of the Act.
In support of its case, the applicant relied upon expert evidence of Dr Nick Carr set out in a report from him dated 4 October 2009.[10]
In her written outline of submissions, Ms Siemensma, at paragraphs 12 to 28 inclusive, annotated the allegations of unprofessional conduct with a recital of the applicable opinion of Dr Carr.
Mr Ruskin did not suggest the tribunal should not accept the evidence advanced by the applicant from Dr Carr.
He did however point to aspects of Dr Carr's report where Dr Carr opined the respondent had acted appropriately.[11]
In reaching its decision, the tribunal accepts and acts upon the evidence of Dr Carr.
The applicant also relies upon the Royal Australian College of General Practitioners - Standards for General Practices (3rd edition 2005)[12] and especially those passages of the publication that relate to home visits, health records and patient health records.
The applicant further relies upon the AMA Code of Ethics and the AMA Position Statement relating to sexual conduct between a doctor and a patient.[13]
Finally, the applicant relies upon a publication of the board relating to doctors treating members of their family.[14]
The tribunal especially regards the respondent's conduct in continuing to treat the notifier over such a long period without referral elsewhere, prescribing benzodiazpenes and cialis and conducting home visits without keeping notes as being particularly serious in the circumstances. The respondent's conduct is both of a lesser standard than that which the public might reasonably expect of a registered medical practitioner and of a lesser standard than that which might reasonably be expected of a medical practitioner by his or her peers.
The tribunal finds the respondent guilty of having, between 9 January 2006 and May 2006, engaged in unprofessional conduct within the meaning of subs (a) and (b) of the definition of unprofessional conduct in s 3(1) of the Act.
In submitting that the tribunal should find the respondent's unprofessional conduct was of a serious nature within s 45A(1)(a) of the Act, Ms Siemensma relied upon what his Honour Justice Kellam, as president of the tribunal, said in Parr v Nurses Board of Victoria[15].
Ms Siemensma submitted a confusion between personal and professional roles by a medical practitioner is never acceptable. Ms Siemensma submitted the relationship between a doctor and patient is one of absolute trust and confidence. The blurring of personal and professional relationships erodes trust and confidence and leads to a risk that the standard of care to the patient might be compromised, the medical practitioner's objectivity and judgment might be clouded and that a more informal approach will be taken to clinical notes. Ms Siemensma submitted that each of those problems was evident in the respondent's conduct here.
Ms Siemensma submitted that the principles in The Board v Dr John Benjamin Greblo[16] at paragraph 35 are relevant and applicable in this case. In Greblo the board said as follows (deleting the necessary citations):
The panel has concluded that Dr Greblo has engaged in unprofessional conduct of a serious nature as:
● The practice of medicine involves intimate access to the body and psyche of the patient; Re A Medical Practitioner.
● A medical practitioner is in a position of special trust toward and power over a patient; Re A Medical Practitioner.
● All patients are entitled to approach their medical practitioners secure in the belief that their conditions will be treated to the best of the skill and ability of the medical practitioner and without interference of any improper kind and with their persons or relation to their affairs. Respecting the vulnerability of those who attend upon them when in need is fundamental to the practise of medicine; Richter v Walton.
● It is entirely unacceptable for a medical practitioner to compromise the medical treatment of a patient at the time of having a sexual relationship with that patient. The basis of the misconduct is the breach of trust, misuse of power and exploitation of vulnerability; Richter v Walton and Re A Medical Practitioner.
● The keeping of proper records is an essential part of providing appropriate medical treatment to members of the public, particularly in the context of their general practitioner who might see many patients each day. It is important that the doctor can refresh his or her memory if and when the patient returns for further treatment, so that an accurate record exists of such essential matters as blood pressure, breathing or diagnostic testing. It is also important for other parties such as a locum, to have a proper basis for assessing and treating patients. The keeping of records also meets an important accountability requirement so that a doctor can justify his or her treatment to third party's when called upon to do so; Re Dr John Chun-Tsang Lai.
● The unprofessional conduct of Dr Greblo, as outlined in allegations (a), (g), (h) and (i) fails within these parameters and constitutes unprofessional conduct of a serious nature.
Mr Ruskin devoted almost all of his submissions to what determinations the tribunal should make consequent upon its findings that between January 2006 and May 2006, the respondent engaged in unprofessional conduct within subs (a) and (b) of the definition in s 3(1) of the Act that was serious in nature within s 45A(1)(a) of the Act. The tribunal now turns to the evidence called on behalf of the respondent.
The respondent was born on 29 December 1961 and is approaching her 49th birthday. She is one of five siblings, four of whom are medical practitioners.
The respondent graduated in medicine from Monash University in 1985. Until approximately 2000, she practised as a general practitioner at Mt Waverley Family Health Care.
The respondent was said to have been very close to her mother. Her father was said to have been very domineering and demanding, leading to what Mr Ruskin described as a 'somewhat dysfunctional family'.
The respondent's mother died in 1998 and whilst the respondent was absent and uncontactable overseas. In consequence, the respondent missed her mother's funeral, a matter causing her profound grief and sadness, given her previously close relationship with her mother.
The respondent contracted breast cancer in 1999, resulting in a partial mastectomy and six weeks of radiotherapy. Between 2000 and 2002, the respondent held medical positions at the Mercy Hospital and as a medical officer with Victoria Police. Further illness restricted her medical practice to a part-time basis until 2006.
The respondent developed an addiction to alcohol and, as part of her treatment, she attended AA where she met the notifier in 2005.
Mr Ruskin submitted, and it was not disputed, that the respondent had formed a close intimate relationship with the notifier before she commenced to treat him as his medical practitioner. Mr Ruskin submitted the tribunal should not view the respondent's conduct as predatory in nature such as can occur where the close intimate relationship follows on from the doctor/patient relationship. The tribunal accepts that submission.
Although the respondent did not herself give evidence to the Tribunal, Mr Ruskin told the tribunal that the respondent accepts full responsibility for what occurred and accepts that she behaved unprofessionally. Mr Ruskin said that the respondent accepted she should not have prescribed any medication for the notifier.
Mr Ruskin told the tribunal that before 2006, the respondent was a 'good, caring and thorough doctor' and that since ending the relationship with the notifier, the respondent had returned to being a 'good, caring and thorough doctor' who was desperate to return to full-time practice.
The relationship with the notifier aside, the tribunal is of the opinion there were aspects of the respondent's life and personal health prior to when she first met the notifier which obviously affected her judgment and her ability to practise at that time. The fact she had resorted to abuse of alcohol requiring attendance at AA meetings is but one factor. There are others to which the tribunal will shortly refer.
Mr Ruskin outlined a number of steps the respondent has taken to return to full-time practice after the relationship with the notifier ended. Between 2007 and 2009, the respondent worked as a general practitioner in clinics owned by others in Paterson Lakes and at Stud Road in Dandenong. Between January 2009 and October 2009, she worked in clinics operated by Dr Thompson in Box Hill and at Doncaster. With these proceedings hanging over her head, the respondent felt very stressed and on 16 January 2010, she ceased practice and voluntarily asked for her registration to be suspended until it was certified by a treating psychiatrist that she was fit to resume practice.
The hearing of these charges was first fixed for April 2010 but, at the request of the respondent, was adjourned.
The responded requested to return to work as a general practitioner on a part-time basis, and whilst the hearing before the tribunal was pending, the applicant permitted her to be re-registered for practice on strict conditions. That was in July/August 2010.
The tribunal admitted into evidence as exhibit 'D', a document entitled 'Conditions on Registration for Dr Amanda Poon'. The conditions set out in that document were imposed upon the respondent's registration pursuant to s 178(1)(2)(c) of the Health Practitioner Regulation National Law (Victoria) Act 2009.
Pursuant to those conditions, there are set out 'Health Related Conditions' and 'Employment Related Conditions'.
The respondent was, and continues to be, treated by Dr R. William Orchard, a psychiatrist, who provided a report dated 21 April 2010.[17] Dr Orchard diagnosed the respondent as suffering from:
Prior to Dr Orchard, the respondent was treated by another psychiatrist who, the tribunal infers, failed to diagnose the respondent's problems in the way Dr Orchard has and exacerbated her condition by continuing to prescribe benzodiazapine medication.
Pursuant to the conditions of the respondent's re-registration, the Victorian Doctors Health Program, appointed Dr Mahendra Perera, a psychiatrist, to consult with the respondent and advise as to her suitability to resume practice. The tribunal admitted into evidence as exhibit '1', a medical report from Dr Perera dated 15 June 2010, addressed to the Health and Performance Co-ordinator of the board.
Ms Siemensma advised the tribunal that the board accepts Dr Perera's report.
The tribunal was told Dr Orchard is to retire from practice in approximately March 2011 at which time it is hoped Dr Perera will take over as a treating psychiatrist of the respondent.
In his report, Dr Perera set out what occurred at interview and his opinion. The tribunal thinks it appropriate to set out the relevant part of Dr Perera's report in full which is as follows:
I interviewed Dr Poon on 10 June 2010. I indicated to her that my role was to assess her fitness to practise and whether any terms or conditions were required for same.
Dr Poon was able to provide me with a chronological sequence of events and it would seem that death (sic) of her mother, being diagnosed with breast cancer and following treatment with an anti-depressant she had become hypomanic. She reported that it was around this time that she had switched from being a social drinker to using excessive amounts of alcohol. The alcohol consumption itself had increased once she according to her had increased was (sic) she voluntarily withdrew from practice taking almost ten standard drinks a day. Her treatment had been essentially for the bipolar disorder at this stage.
I shall not go into the detail of her medical history as this has been well documented.
She had voluntarily withdrawn her licence to practise in the context of allegations made against her by [the notifier] and then having the stress of facing a VCAT hearing. It was around this time that she had been referred to Dr William Orchard who had revised her diagnosis. Mandy now reports to me that she is remaining relatively stable, off alcohol altogether, and is attending to the various programs as recommended.
On examination today she seemed somewhat anxious (and this understandable in the context of her having to see me) otherwise appeared friendly, was able to give me a reasonable history as noted earlier, and she appeared to be euthymic. There was no evidence of any psychotic phenomena and she did demonstrate a reasonable degree of insight into the nature of her problems and was able to understand and accept the restrictions that may be placed regarding terms and conditions of her practice.
In my view she is fit to practise medicine as a general practitioner with certain restrictions placed on the conditions of practice. These restrictions or limitations would in my view help her to remain well and develop boundaries and build up necessary support structures to avoid any potential pitfalls and thereby work as a safe practitioner, which would make it both safe for her as well as the public.
It is important that Dr Poon be able to maintain regular records of these activities and I believe it is possible for her, seeing that she carefully documents and did bring along, even for the interview, the relevant documents filed and in order. The matter could be reviewed perhaps in three months by the board and then her working hours if appropriate may be extended to thirty hours a week. I would certainly hope that Dr Poon is able to abide by these conditions and an independent review of her health status and her ability to practice and reviewing the terms and conditions be made no later than one year.
A cautious approach is recommended due to the prolonged nature of the difficulties that have arisen in the past. It is hoped that with suitable assistance and adherence to the regimes and stabilising her conditions, Dr Poon will eventually return to full-time work without any restrictions.
In reaching its decision and in making the orders that it proposes to make, the tribunal has taken the full reports of Dr Orchard and Dr Perera into account. Mr Ruskin provided the tribunal with the respondent's QA and CPD record. In making its decision the tribunal has taken this into account.
Mr Ruskin advised the tribunal that pursuant to the conditions imposed on the respondent's registration, that she continues to see Dr Fiona Cochrane, a psychologist appointed by the Victorian Doctors Health Program.
The tribunal was informed by Mr Ruskin the respondent stopped abusing alcohol in 2004 and that since being diagnosed for benzodiazepine dependence by Dr Orchard and treated for it, the respondent is no longer dependent on benzodiazepines.
The respondent called Dr Shelley Gray, a general practitioner, and friend and colleague of the respondent. She told the tribunal she has known the respondent since 1980 when they were medical students together.
Dr Gray told the tribunal she has discussed the circumstances of the allegations of unprofessional conduct with the respondent who she said acknowledges that she was wrong to conduct herself as she did and was and remains remorseful of her conduct.
Dr Gray told the tribunal she continues to discuss the respondent's current work with her. Dr Gray opined that the factual allegations which are admitted are very much the sort of conduct which might be engaged in by someone suffering undiagnosed ADHD which she said is characterised by impulsivity, distractibility, hyperactivity and procrastination. Dr Gray told the tribunal that now the respondent's ADHD had been properly diagnosed and treated, there has been noticeable improvement in the respondent at a personal level whom she said no longer engaged in circular discussion, had better impulse control and alcohol was no longer a part of her life.
When asked to compare the respondent both before and after the wrongful conduct resulting in the hearing, Dr Gray said now that the respondent has been diagnosed and treated, her prognosis is excellent. She added however, that the process of returning to a normal active life as a general practitioner, was stressful, and the respondent still has a long way to go in her recovery but she now has greater insight into her health problems and can put steps in place to prevent its recurrence.
The tribunal noted Dr Gray has no formal qualifications in psychiatry, and she is a close friend of the respondent. The tribunal acts on the evidence given by Dr Gray as to the applicant's mental state only where that evidence is confirmed by other expert evidence.
Dr L Thompson was also called to give evidence on behalf of the respondent. She told the tribunal she has two practices located at Doncaster and in Box Hill. She employs ten doctors, one of whom is the respondent, who works twenty-four hours per week, spread over five working days at both practices. The twenty-four hours per week is the maximum the respondent is presently permitted to work by the board.
Dr Thompson told the tribunal that the respondent is breath tested every day for alcohol consumption and none has been detected.
Dr Thompson is aware of the nature of the proceedings. She said she had discussed the respondent's wrongful conduct with her and the respondent had admitted to her her wrong-doing and she is very remorseful. Dr Thompson said she had checked the respondent's record-keeping to ensure her notes are accurate and that her selection of consultation times is appropriate. She said that she (Dr Thompson) was more than satisfied with the respondent's work.
Dr Thompson said the feedback from patients about the respondent was good. She said she regarded the respondent as 'an honest, compassionate and very caring doctor'. She would like to increase the respondent's hours of work to thirty-six hours per week. She said she had completed a work supervisor's report (exhibit '2') for the board. The tribunal does not place much weight on the work supervisor's report but otherwise accepts the evidence of Dr Thompson.
The respondent called Ms Jo Grant, a social worker, to the Victorian Medical Benevolent Association. She is a social worker of some thirty-five year's standing. The respondent voluntarily sought her help before she met the notifier and the respondent has seen Ms Grant periodically since, locally once per fortnight and they have some phone consultations in addition.
Ms Grant described the respondent at the time of the wrongful conduct as 'vulnerable, naïve and innocent'. She said she now has wisdom she did not have at the time. According to Ms Grant, the respondent is both remorseful and anxious about her wrongful conduct.
Ms Grant said that in terms of functioning as a normal efficient practitioner, the respondent was improving but, like Dr Gray, she said that the respondent still has a way to go. She described the respondent as being 'about 70% there'. She said, although the respondent's development of insight was well on the way, she still required ongoing treatment and counselling from someone such as herself. She was optimistic the respondent would get back to full-time work and she was totally confident the respondent would not conduct herself in a similar way again. Ms Grant was not cross-examined. The tribunal accepts her evidence.
The tribunal's primary role is to protect the public and by its decision to express appropriate disapproval of the respondent's serious unprofessional conduct.
Ms Siemensma submitted, and the tribunal agrees, that by its decision, the tribunal must also reflect general deterrence (to deter others who might behave as the respondent has) and specific deterrence (to deter the respondent from again behaving in this way). The tribunal is of the opinion that the respondent's conduct was influenced by her own undiagnosed health conditions, especially adult ADHD and benzodiazepine dependency. Each of these matters affected her judgment. That being so, the tribunal is of the view that the orders it makes must protect the public whilst the respondent works towards full recovery under supervision.
The tribunal has had full regard to the evidence of Drs Orchard and Perera and the evidence of Dr Gray and Dr Thomson and Ms Grant. The tribunal is of the opinion that the weight of that evidence is that the respondent is remorseful and is well on the way to recovery. But there is still some way to go before it can be said that the respondent has made a full recovery. The tribunal is especially mindful of the fact that the respondent told Dr Perera she had become hypomanic in the contest of being an alcoholic and receiving treatment with antidepressant medication.
In all the circumstances, the tribunal is of the view that it is in the public interest, and in the interest of the respondent making a full recovery from her health problems, that her ongoing right to practise remain restricted with her registration subject to ongoing conditions.
The tribunal has viewed carefully exhibit 'D', the conditions under which the respondent is currently registered to practise. The tribunal is of the opinion that the condition numbered 9, which currently restricts the respondent's practice to twenty-four (24) hours of work per week, should remain in place for at least the next twelve (12) months to enable the respondent to complete a full recovery from her health conditions.
(1) The tribunal finds the respondent engaged in unprofessional conduct of a serious nature between in or around 9 January 2006 and until May 2006.
(2) The respondent is reprimanded in accordance with s 45A(2)(c) of the Act.
(3) For the period of the next twelve months, the respondent's registration to practice as a medical practitioner is on the conditions contained in exhibit 'D', save and except that condition 9 thereof is not affected by the words in the handwritten sentence shown on the exhibit and condition 9 is to read as follows:
Not to exceed twenty-four hours of work per week until on or before 15 November 2011.
[1] A copy of the notification appears in the tribunal hearing book at pages 8 to 14 inclusive.
[2] See tribunal hearing book pages 15-16.
[3] Tribunal hearing book pages 103-104.
[4] A copy is at the tribunal hearing book pages 106-115 inclusive and includes the respondent's progress notes kept by her relating to the notifier and covering the period 24 January 2006 to 6 August 2006.
[5] A hard copy of which is found at tribunal hearing book pages 41-42.
[7] At tribunal hearing book pages 33 to 37.
[8] At the tribunal hearing book pages 51 to 54 inclusive.
[9] At the tribunal hearing book pages 111 to 115 inclusive.
[10] Found at tribunal hearing book pages 242 to 247 inclusive.
[11] These findings can be found in Dr Carr's report at tribunal hearing book page 243, paragraphs 5 and 7, page 244, paragraphs 1, 3 and 4 and page 247 in the second paragraph.
[12] Found at tribunal hearing book page 123.
[13] Found at the tribunal hearing book page 215.
[14] Found at the tribunal hearing book page 224.
[17] Found at tribunal hearing book page 234.
Medical Board of Australia
Poon