Medical Board of Australia v Skehan (Occupational and Business Regulation) [2011] VCAT 2424

An order was made by the Tribunal on 15 November 2010 that the name of any patient or former patient of Dr Skehan, or the name of any family member of any such patient or former patient, or any information which would enable the identification of such a person, not be published or made available to the public.

Pursuant to that order, pseudonyms have been used for the name of any patient or former patient of Dr Skehan, or the name of any family member of any such patient or former patient. The following names are pseudonyms -

• Jane Wood;
• John Wood;
• Sarah Wood;
• Matthew Wood;
• Hannah;
• Christine;
• Fiona; and
• Brian

The Tribunal is satisfied to the requisite standard as follows -

Between February 2006 and February 2008, Dr Michael John Skehan engaged in an inappropriate personal and emotional relationship with his patient Jane Wood, which in all likelihood involved sexual intimacy in February 2006, February 2007 and in January 2008.

This was a grave transgression of the ethical boundaries by Dr Skehan in his conduct as a medical practitioner.

Additionally, because of the doctor/patient relationship and the inappropriate personal relationship Dr Skehan shared with Ms Wood, he obtained a financial advantage to which he was not entitled in that, as a member of a mobile phone plan connected to Ms Wood's business, he did not pay for his mobile telephone bill for a period of a little less than 12 months. It is not possible to quantify the financial advantage obtained but it was for an appreciable amount.

Since January 2009 to the present, Dr Skehan has engaged in an inappropriate sexual relationship with his former patient, Jane Wood.

Between May 2002 and February 2006, Dr Skehan failed to exercise the skill and care of a reasonably competent medical practitioner in relation to the clinical management of his patient, John Wood, concerning Mr Wood's elevated Prostate Specific Antigen test results.

On or about 17 March 2007, Dr Skehan dishonestly created clinical notes for a consultation with, and produced a medical certificate for, his patient John Wood, in circumstances where no consultation and/or examination by him of Mr Wood actually occurred.

Orders as to disposition shall follow the adduction of any further evidence and submissions as to the issue of penalty, to be made in either written or oral form at a date to be fixed. The Tribunal will also receive submissions as to how Dr Skehan's particular conduct, as found, should be characterised under the Medical Practice Act 1994 (Vic) and/or the Health Professions Registration Act 2005 (Vic).

Mr R Maidment SC with Ms J Grover (solicitor) instructed by Minter Ellison Lawyers

1. On 26 February 2010, the Medical Board of Australia[1] (variously, the applicant or the Board) referred to the Tribunal a number of allegations concerning the inappropriate conduct of the respondent, Michael John Skehan, who is a registered medical practitioner.[2] The referral followed an investigation conducted by the Board, which was initiated as a result of a notification to it by John Wood in January 2008. Mr Wood is a former patient of Dr Skehan. He complained to the Board that Dr Skehan had been in a sexual relationship with his former wife, Jane Wood, when she was Dr Skehan's patient.
2. In its referral, the Board alleged that Dr Skehan engaged in 'unprofessional conduct' or 'professional misconduct' or both, as those expressions are defined in the Medical Practice Act 1994 (Vic) (the MP Act), for conduct occurring in the period between 1998 and 30 June 2007, and the Health Professions Registration Act 2005 (Vic) (the HPR Act), for conduct occurring on or after 1 July 2007, which is the date the HPR Act commenced to operate.[3]
3. Upon receipt of such a referral and following a hearing, the Tribunal may dismiss such allegations, where it is satisfied there has been no unprofessional conduct or professional misconduct.[4] If adverse findings are made, the Tribunal may consider making a number of determinations, which range from requiring the practitioner to undergo counselling to cancelling his or her registration.[5]
4. The Tribunal has now conducted a 10day hearing. The applicant produced a large amount of material in a Tribunal Book (TB) and called fourteen witnesses, including Jane Wood. Dr Skehan gave evidence on oath and called two character witnesses. He also produced material. Each party made written submissions, which were addressed orally. [6]

1. There are four allegations made against Dr Skehan. They are set out in full at Appendix 1. In essence, the first allegation concerns whether or not, since 1998, Dr Skehan transgressed professional boundaries by engaging in an inappropriate personal and emotional relationship, involving sexual activity, with Jane Wood when she was his patient.
2. This allegation also concerns whether there was, amongst Ms Wood's immediate and wider family, most of whom were also patients of Dr Skehan, the perception of the existence of such an inappropriate relationship, or the risk of such a perception.
3. The first allegation also raises the issue of whether Dr Skehan obtained an inappropriate financial advantage from his personal and professional relationship with Ms Wood.
4. The second allegation concerns whether, since early 2008, Dr Skehan has engaged in an inappropriate sexual relationship with Ms Wood as his former patient.
5. The third allegation concerns whether, between 1997 and 2007, Dr Skehan failed to exercise the skill and care of a reasonably competent medical practitioner in relation to his clinical management of Mr Wood's prostate-specific antigen (PSA) levels.
6. The fourth and final allegation concerns whether, on or about 17 March 2007, Dr Skehan falsely created clinical notes of a consultation with, and examination of, Mr Wood, including creating a medical certificate, where there had been no such consultation and examination.
7. It is apparent from a reading of the first two allegations, that various words and concepts are used by the applicant to describe the alleged inappropriate conduct engaged in by Dr Skehan with Ms Wood. Particularly, the first allegation is lengthy and, we consider, it is expressed in complex and convoluted language. But, as we have just pointed out, this allegation is essentially concerned with whether or not Dr Skehan engaged in an 'inappropriate personal and emotional relationship', involving sexual activity, with Ms Wood when she was his patient.
8. There can be no doubt the parties conducted the case with a clear understanding of what would constitute proper or improper ethical conduct on Dr Skehan's part as a medical practitioner. During the hearing, Dr Skehan conceded he had engaged in an 'inappropriate personal relationship' with his patient and this had gone beyond the normal friendship which can arise out of the professional contact between doctor and patient. He accepted that this constituted unprofessional conduct on his part.
9. However, he disputed he was involved in an 'inappropriate emotional relationship' with his patient, which ethical breach was treated by the parties as arising when a doctor has become romantically attached to, or involved with, his or her patient. There was no dispute that such a situation may arise by a doctor having feelings of intimacy for the patient, or having perceived such feelings from the patient towards him, the doctor promoting or allowing those feelings to develop.
10. Sexual activity between a doctor and patient may or may not be involved in such an inappropriate emotional relationship. Dr Skehan and Ms Wood both denied any sexual activity occurred between them whilst she was his patient.
11. Dr Skehan also disputed the second allegation that he engaged in an 'inappropriate sexual relationship' with Ms Wood when she was his former patient. Again, we are satisfied the parties understood the terminology. Dr Skehan contended that he and Ms Wood commenced a sexual relationship only in January 2009, which continues to the present. They both maintained they now share a loving relationship.
12. Obviously, the alleged inappropriate emotional relationship differs markedly from the concern, empathy, or, indeed, emotion which a medical practitioner may rightly feel in a professional setting for his or her patient facing a difficult medical predicament.
13. Notwithstanding our observations as to the wording of the first and second allegations, we are satisfied the differences within and between them, and the nuances which surround them, were fully understood by the parties and that the matter was conducted with these distinctions clearly in mind. Importantly, the touchstone at all times was whether or not Dr Skehan transgressed the ethical boundaries in any given circumstance.
14. Dr Skehan also disputed the third and fourth allegations.
15. For the reasons which follow, we are satisfied that the applicant has proven each of the four allegations, or parts of them, to the requisite standard. Before turning to the allegations, we will first refer to some relevant background and then to two matters of principle.

1. John Wood is now 61 and Jane Wood is 49. They married in 1979 and have two children, a 25-year-old daughter, Sarah, and a 17year-old son, Matthew. The couple separated under the one roof when Ms Wood moved into her own bedroom in late 2007. Ms Wood finally left the marital home on 2 February 2008 and the couple are now divorced. When she left, Ms Wood and Matthew moved into a unit in the same building where Dr Skehan lived. They still live there. Sarah continued to live with her father.
2. In 1986, Mr and Ms Wood established a family business manufacturing and marketing baby products. Sarah worked in the business with her parents for about six years. The family worked long hours, often seven days per week, and, by all accounts, built up a successful commercial enterprise. Ms Wood said at one stage the business was turning over $1.3m a year.
3. After the marriage breakdown, Mr and Ms Wood and Sarah continued to work together for some time but ultimately, Ms Wood took over the business as part of the divorce settlement.

1. In Ms Wood's wider family there are: her mother, her three sisters, Hannah, Christine and Fiona; and a brother Brian. Each of the siblings is married and has children.
2. Hannah worked as a bookkeeper in the family business, and the other two sisters worked there from time to time.

1. Following the marriage split, Sarah became estranged from her mother. Mr Wood made threats to get back at his wife if she left him. There were acrimonious divorce proceedings between Mr and Ms Wood.
2. Ms Wood's mother and three sisters believed that Ms Wood had been having an emotional affair with Dr Skehan for a lengthy time, and that Dr Skehan played a pivotal role in causing the marriage breakdown. Accordingly, they have rejected Ms Wood. Although she remains close to her brother, Ms Wood is not on speaking terms with her sisters (or her mother) and there is much bitterness felt between them.
3. In assessing the evidence of John and Sarah Wood, and that of the three sisters, as urged by the respondent's submission, we have particularly had regard to the antagonism which each holds for, and demonstrated towards, Ms Wood and Dr Skehan, and the extent to which those feelings may have led to unreliable accounts.[7] We have placed no reliance upon the speculation of these witnesses that Dr Skehan was having an affair with Ms Wood, although such beliefs may explain why such a witness acted in a particular way.[8] We note that none of those witnesses suggested that Ms Wood was exploited in any way by Dr Skehan.
4. We have also closely considered the credit attack mounted by the respondent upon Mr Wood's honesty concerning documentation as to jewellery which he produced in the family law action in 2009.[9] Although it initially appeared Mr Wood may have misled the court, closer examination of the issue demonstrated that he had, in fact, provided a complete copy of an original receipt. No submission was ultimately made by the respondent as to this matter.

1. Dr Skehan is now aged 56, having been born in March 1954. He graduated from the University of Melbourne in 1977. Over the next six years he worked in different hospitals, in an aged-care facility, and also as a general practitioner in rural areas. In 1983 he commenced practice as a GP at the Ascot Vale Medical Clinic in Union Road, Ascot Vale and he has continued to practise there with colleagues for the past 27 years.
2. Over that very long period, Dr Skehan has only been the subject of one complaint to the Board, which was made against him and a colleague by a psychiatric patient about being weighed too often. Dr Skehan responded to the Board, and the matter was taken no further. This is of no consequence.
3. Dr Skehan's first marriage lasted only a short time. Then he married his second wife and of that relationship there are two daughters, now aged in their twenties. He separated from his second wife in December 2005.

1. In addition to Dr Skehan's excellent record of practice, impressive evidence of his good character was given by his Honour Judge Christopher O'Neill of the County Court of Victoria, and solicitor, Richard Santamaria. Each has known Dr Skehan very well for over 40 years. They described their good friend as a person of the highest integrity. Neither could comprehend that he would, or could, exploit one of his patients for any emotional, sexual or financial advantage. As Judge O'Neill put it, the respondent had always impressed him as an absolutely open, decent, good-spirited and honest person. Both witnesses said it was inconceivable to them that Dr Skehan might have acted dishonestly in falsifying a medical certificate where no consultation had occurred. Judge O'Neill also said that there were elements of naivety about Dr Skehan, and that if his emotions were heightened it was possible that he could be exploited by another.
2. We accept this evidence of good character. It has significance in two ways.[10] First, it can be used favourably in assessing Dr Skehan's credit in his denial of the allegations. Secondly, it makes it less likely than more likely that Dr Skehan acted inappropriately, as alleged.
3. We have applied this principle to our consideration of the evidence and the allegations. However, although evidence of good character may assist in the determination as to facts, it cannot alter proven facts. Obviously, a medical practitioner of good character can act unprofessionally or unethically for the first time.
4. Moreover, the good character evidence must be considered in light of two particular matters which diminish its force. The first is that whilst each witness expressed surprise and disbelief that Dr Skehan might act inappropriately in the course of his professional duties, as we have noted the respondent himself conceded, by reason of his extensive connection with and proximity to Ms Wood, that he had engaged in an inappropriate personal relationship with his patient, which constituted unprofessional conduct.
5. The second is that an attack upon Dr Skehan's credit and honesty was successfully mounted by the applicant concerning him falsely representing himself as an employee of Ms Wood's business in 2009. Dr Skehan explained that at that time Ms Wood had a retail business selling jewellery. He admitted that he was not employed in that business and never had been. Nevertheless, on 28 August 2009, Dr Skehan signed a 'buyer registration form' so that he could attend an international jewellery fair in Sydney as a representative of Ms Wood's business (the application).[11] The form was filled out in the name of Mr (not Doctor) Michael Skehan. Attached to it was a letter signed by Ms Wood stating, 'This letter certifies that Mr Michael Skehan is an employee of [name of business].' Dr Skehan conceded he expected such a letter would support his application, although he had not actually sighted it. His drivers licence was also attached. He said that although he was thereby registering as an employee of Ms Wood's business, that was not exactly true.
6. However, Dr Skehan explained he did have something to do with the business because jewellery wholesalers would come from Hong Kong to show off their wares and he would pick them up at their hotel, take them to Ms Wood's business premises and return them to their hotel afterwards. Then he claimed he could be qualified as an employee of the business because he drove a van around picking up furniture from a manufacturer and delivering it to the business. But he was not paid for any of this and earned no income from the business.[12]
7. When pressed, Dr Skehan conceded that the application was not 'absolutely correct'; although he felt he had 'an involvement' in the business. He would not concede he was bending the rules, or being loose with the truth, and he claimed he did not turn his mind to the question of dishonesty. But he did say that perhaps he was 'being a little bit flexible' in the situation.[13]
8. Dr Skehan's evidence concerning this matter was disingenuous. It left much to be desired. It is clear that he was not an employee of Ms Wood's company. At best, it could be said, he occasionally provided some unpaid voluntary assistance to Ms Wood in her business activities. We reject the respondent's submission that Dr Skehan was entitled to describe himself as an employee of Ms Wood's business. In the circumstances, we are satisfied Dr Skehan knowingly permitted a false application to be presented to the organisers of the jewellery fair. We accept the applicant's submission that this material '... does not demonstrate that Dr Skehan is at all times a scrupulous adherent to the highest standards of integrity'.
9. Nevertheless, we should make clear that our satisfaction as to proof of the allegations depends on findings as to the evidence relevant to each of them, not upon our conclusions that the good character evidence carries less weight than might otherwise be the case.

Dr Skehan's friendship with the Wood and the wider family

1. In due course, the Wood and the wider family members all became close personal friends of Dr Skehan and his family. It was common for Mr and Ms Wood, and sometimes their children, to have dinner with the Skehan family, whether at their own homes or at a restaurant. Dr Skehan also attended a number of special Wood family occasions, such as Ms Wood's 40th birthday in 2001, and other social outings with the wider family members.
2. The Wood and Skehan families also went away on holiday together. In 1997, they went to Port Douglas, and around 2001, to the Grampians.
3. For many years, Mr and Ms Wood, Dr Skehan and his wife, and their neighbours, were part of a daily walking group. Following Dr Skehan's separation from his wife in December 2005, he continued to walk with Ms Wood and the neighbours, although, it would appear, not so much with Mr Wood.
4. Dr Skehan's close social connection with Mr and Ms Wood continued after his marriage separation, and, so too, did the holidays. In March 2007, he took his daughters on a holiday to Bali with Ms Wood, Matthew, Hannah and other family members. In March 2008, Dr Skehan and his daughters went on another holiday with Ms Wood and her son to Phuket, Thailand.
5. Dr Skehan was highly regarded within all these family circles and we are satisfied he assumed a position of importance and influence in them. On its face, all this was genuine activity and Dr Skehan is not to be criticised for it alone. Many medical practitioners have close social relationships with their patients. However, much of this social interaction enabled Dr Skehan to pursue and promote an inappropriate personal and emotional relationship with Ms Wood while she was his patient.

The professional relationship between Dr Skehan and Jane Wood

1. Ms Wood commenced as Dr Skehan's patient in February 1988 and consulted him on a very regular basis thereafter for about 20 years, whilst she was aged 26 to 46.
2. The couple claim their doctor/patient relationship finished in September 2007, which was around the time that Ms Wood and her husband were having particularly difficult marriage problems. However, we are satisfied it was still in existence on 19 March 2008 when Dr Skehan ordered blood tests for Ms Wood (reported on 17 April).[14] Ms Wood said she could not recall if she consulted Dr Skehan in March for this purpose, but she did concede that her new address in Essendon was correctly noted on the pathology reports in the following April.
3. Dr Skehan claimed to be equally baffled about the record of the test in 2008. He said he did not have any recollection of having treated Ms Wood since her marital separation in the preceding February.
4. If the professional relationship ceased in September 2007, as claimed, there could be no circumstances in which Dr Skehan would be ordering tests for Ms Wood in the following year.
5. Appendix 2 sets out the number of consultations, on a yearly basis, which Ms Wood had with Dr Skehan between 1988 and 2007. She consulted with him on no less than 294 occasions over those 20 years. This included 23 home visits. There were 20 surgery consultations in 2006 and 2007 (but no home visits).
6. Ms Wood consulted Dr Skehan for a number of multi-faceted medical issues ranging from the mundane to the complex. As early as 1993, he referred her to a psychiatrist for a significant matter concerning her childhood and her relationship with her young daughter. He supervised the pregnancy of her son, and a number of general gynaecological issues. He conducted vaginal examinations and took pap smears from her. He treated her for a persistent urinary-tract infection. From time to time he counselled her as to personal and family issues and lifestyle matters, including for weight control and self-esteem.
7. Dr Skehan agreed he had had a longstanding, close relationship with Ms Wood as a patient. She explained that he was an excellent doctor; she felt comfortable with him and had full confidence in his ability.

The professional relationship between Dr Skehan and John Wood

1. Mr Wood commenced as Dr Skehan's patient in December 1986 when he was 37. He continued to see him as his family doctor on and off until November 2007 when he was 58. The number of consultations, on an annual basis between 1986 and 2007, is set out at Appendix 3. There were 60 consultations over that 21year period, including 11 home visits.[15]
2. Mr Wood saw Dr Skehan for a number of medical problems. Of particular issue were elevated PSA levels, which are the subject matter of the third allegation. Significantly, in October 2007, Mr Wood was in a depressed mood because of his marriage problems. He sought help from the respondent who gave him marital counselling. This was at a time Dr Skehan was involved in an inappropriate personal and emotional relationship with his patient's wife.

The professional relationship between Dr Skehan and other family members

1. Dr Skehan was also the GP for the Wood children, and for the wider family members. Ms Wood frequently called him to arrange appointments for these family members, at times on short notice. The consultations would often take place at the Wood residence, frequently on a Tuesday when Dr Skehan would do his home visits. As submitted by the respondent, the wider family members thereby received the benefit of easy access to their general practitioner. We make no criticism of the fact that some of these consultations were conducted at Ms Wood's home, but Dr Skehan's willingness to indulge these requests and please Ms Wood reflects one aspect of the inappropriate personal relationship he had with her.
2. No medical records were provided concerning any of this professional work, but it would appear all these patients were satisfied with Dr Skehan's work as a doctor. Certainly, he dealt with intimate matters concerning Sarah whom he advised to commence on the pill in 2007.
3. Dr Skehan said he continued to treat Matthew after the Woods separated, for such things as an immunisation booster, a lacerated leg and abdominal pain, for which he referred him to a specialist. He saw him once professionally in 2010.

1. We have already referred to some pertinent aspects of the marriage of John and Jane Wood.
2. We received and heard a large amount of evidence relating to the marriage and its problems. It is unnecessary to go to the detail of this, other than to note that Ms Wood said that there had been problems in the marriage for five to six years leading up to the separation. She said it had been a dysfunctional and abusive relationship and that Mr Wood had been aggressive towards her, both at home and work. She said that their sexual relationship ceased in July 2005.[16]
3. By contrast, Mr Wood denied being aggressive and maintained that the marriage only deteriorated from around May 2007 when his wife's behaviour changed towards him, which he now attributes to the existence of a sexual relationship between her and Dr Skehan. However, he did not suspect Dr Skehan as having an affair with his wife until later in 2007.
4. Ms Wood consulted psychologist, Chiara Hunter, on 18 May 2007 for marriage counselling.[17] Ms Hunter noted a number of longstanding problems in the marriage, including a lack of intimacy for the previous two years. On 3 August, Ms Wood told the counsellor that she had felt unloved for a number of years, and that she was considering a separation. On 10 September, Ms Wood denied to the counsellor that she was having an affair with Dr Skehan.
5. Ms Hunter saw Mr Wood alone on 12 September, when he confirmed that he had not had sex his wife for a long time and felt rejected in the relationship. He insisted that his wife was having an affair with Dr Skehan. Oddly, in these circumstances, Mr Wood denied to the counsellor any knowledge or awareness of major difficulties in the marriage. However, he was aware that she was contemplating leaving him, and he threatened to 'make her life hell' if she did so.
6. On 4 December 2007, Ms Wood told the counsellor that Mr Wood was very angry about her decision to separate from him, and had threatened to ruin her life and Dr Skehan's career.
7. The only present relevance of this brief history of the counselling sessions with Ms Hunter is as follows. First, as submitted by the respondent, we consider the marriage had been deteriorating over many years and it is not possible to conclude that Dr Skehan was the cause of that problem in the first place. Ms Wood said her friendship with Dr Skehan had nothing to do with the breakdown of the marriage.[18] However, she was only speaking about a friendship with Dr Skehan. We consider it is inevitable that the existence of an inappropriate personal and emotional relationship between Dr Skehan and Ms Wood by February 2006 must have made some contribution to the ultimate break-down in the relationship between the Woods. This was so especially given the likely sexual activity between Dr Skehan and Ms Wood in the February of 2006 and 2007. But, as correctly submitted by the respondent, the hearing was an investigation into the failure of Dr Skehan to maintain standards, not an investigation into the reasons for the Woods' failed marriage. Hence, it is unnecessary for us to go further into this aspect.
8. The second matter is that we accept Mr Wood made a number of threats against his wife and Dr Skehan to Ms Hunter.[19] This attitude was also expressed by him to Ms Wood's brother.[20] No doubt such threats reflected Mr Wood's frustration and anger at the prospect of losing his marriage and the family business - when he wanted to keep both - and his belief as to the contribution Dr Skehan made to that situation. We reject Mr Wood' denials of having made such threats and have borne them in mind in assessing his credibility and reaching our conclusions as to the allegations.

1. There are two matters of principle which may conveniently be dealt with at this point. The first concerns the ethical boundaries of the doctor/patient relationship, and the second relates to the standard of proof which applies to the hearing.
2. Turning to the first of these topics, the Board has for many years made clear what is and is not appropriate professional conduct for doctors in their dealings with patients. These must be taken to be well-known by the medical profession. We shall mention those particularly relevant to the first and second allegations.
3. In 1999, the Board issued a 'Guide for Medical Practitioners' which succinctly stated:

It is always wrong for a doctor to enter into a sexual or an improper emotional relationship with a patient. It is also wrong to enter into a relationship with a former patient, or a close relative of a patient, if this breaches the trust the patient has placed in the doctor or otherwise disrupts the patient's life.

This unprofessional conduct most often occurs in emotionally vulnerable patients, for whom the consequential harm of the relationship is almost always extremely serious. A sexual or improper relationship, even if the patient is not vulnerable and is a consenting adult, invariably results in the doctor's objectivity and judgement being clouded, such that the quality of the medical care of the patient is reduced.[21]

1. These principles were reaffirmed in further guidelines issued by the Board, 'Professional Boundaries: A Guide for Patients and Doctors' (undated).[22] A number of 'Danger Signs' were highlighted, including patients requesting or receiving non-urgent appointments at unusual hours, especially when other staff are not present (as here); and inviting each other out socially (as here).
2. In 2001, the Board advised doctors that close to 70 per cent of formal hearings at that time involved allegations of serious sexual misconduct. A bulletin issued by the Board in Spring of that year stated:

This sobering statistic affirms the priority the Board has given to tackling this problem, through the implementation of a Sexual Misconduct Strategy.

Education and cooperation - with the profession and the community - are the cornerstones of the Board's approach, together with raising awareness among patients and doctors of boundaries in the patient-doctor relationship.[23]

A comprehensive strategy was then outlined for dealing with the problem, which was described as '... at best insensitive and at worst, predatory'.

1. In a bulletin the following year, the Board again reiterated its concern about such misconduct.[24] It noted that the use of a professional doctor-patient relationship to establish a personal sexual relationship with a patient or to pursue personal sexual gratification '... is a very serious breach of trust and is always unprofessional.' It advised the profession about a recently held conference concerning the issue of boundary transgression. It noted the opinion of an eminent speaker that boundary violations are not peculiar to the so-called 'bad apples' of the profession. That expert spoke of the 'slippery slope' commencing with an innocent transgression then progressing to sexual involvement with a patient or former patient. A number of important guidelines were provided so as to enable practitioners to maintain professional boundaries. Another speaker, a senior psychiatrist, provided a useful reminder that it is the patient who pays the doctor for a service, and it is the patient who allows the doctor privileged access to their bodies and personal feelings, not the reverse. It was noted that general practitioners and psychiatrists were at particular risk, and, by far, the most common combination in trouble was the male doctor and female patient.
2. The Board once again reaffirmed these principles in 'Good Medical Practice' guidelines, published in December 2006.[25] Particularly, doctors were instructed to 'observe professional boundaries with patients. This includes not engaging in improper personal relationships or sexual behaviour with patients. (Refer to the Professional Boundaries policy, issued by Medical Practitioners Board of Victoria)', and 'You must not abuse your patient's trust by: using your position to establish improper personal relationships with patients or their close relatives'.[26]
3. The significance and importance of these principles was well set-out in 1995 by Dowsett J in Re a Medical Practitioner.[27] His Honour was sitting as the Medical Assessment Tribunal in Queensland.[28] Having assessed a number of authorities, his Honour said:

These cases identify a number of themes running through the traditional approach to misconduct of this kind by medical practitioners. They are:

1. The practice of medicine involves intimate access to the body and psyche of the patient.

2. Such practice may also involve access to the patient's home.

3. A medical practitioner is therefore in a position of special trust toward and power over a patient.

4. The need for medical care and the sympathetic way in which such care is likely to be provided render the recipient at risk of becoming emotionally involved with and/or dependent upon the provider.

5. In some circumstances, exposure to such risk may extend to persons close to the patient, for example to a parent of an infant patient or the spouse of a patient.

6. A medical practitioner must be aware of these risks and ensure that his or her conduct does not aggravate the position, that no advantage is taken of any such susceptibility, and that there is no abuse of the practitioner's special position.

7. A medical practitioner who becomes aware that a patient has developed a romantic attachment to him or her must take steps to sever that attachment. Normally, the doctor and patient relationships should be terminated.

8. A medical practitioner who becomes romantically attached to a patient should realise that his or her own objectivity and capacity to provide appropriate treatment have been impaired and terminate the doctor and patient relationship.

9. Where the romantic attachment is solely on the patient's side, whilst it will be unwise to continue treating the patient, it will not necessarily be professional misconduct to do so, save where the efficacy of continued treatment may be impaired by the attachment or where the patient may suffer further harm.

10. Where there is romantic attachment on the part of the practitioner, it may be professional misconduct not to terminate the doctor and patient relationship, even in the absence of any acts of intimacy. Each case must be considered on its merits. The considerations referred to in paragraph 9 will again be relevant.

11. It is professional misconduct to engage in acts of intimacy with a patient whilst the doctor and patient relationship continues.

12. 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 created in the course of the professional relationship.

13. From the point of view of the profession as a whole and from the public viewpoint, it is as important that the appearance of propriety be maintained in each doctor and patient relationship as that such propriety actually exist. Thus it will be professional misconduct for a medical practitioner to permit the appearance of a romantic relationship with a patient or to lead a patient to believe that he or she has an interest in establishing such a relationship.

14. As with all misconduct, individual examples may vary in severity. The more serious the misconduct, the more likely it will be that the interests of the public will dictate removal from the register. It cannot be said that every case of misconduct of this kind will dictate such removal.

15. These comments apply to male and female medical practitioners, both general practitioners and specialists. The nature of a particular speciality may render the misconduct more serious (e.g. psychiatrists and gynaecologists).

16. These observations apply to both heterosexual and homosexual relationships and conduct.

17. Whilst these observations generally refer to relationships with a patient, they also apply to relationships with persons closely associated with patients, particularly parents of infant patients and spouses of patients.

18. The gravamen of this misconduct is breach of trust, misuse of power and exploitation of vulnerability. Sexual misconduct is only an example of such misconduct.

The above observations should not be taken as binding statements of law or principle. They are rather general observations based upon submissions made to the Tribunal and a consideration of some of the cases, designed to expose my thinking leading up to the judgment in this case rather than as a guide for medical practitioners, although hopefully, they may also serve that purpose.

1. These helpful observations were particularly relied upon by the applicant. The Board correctly submitted, 'The onus is, and must be, upon the doctor in such circumstances to appreciate the risks, guard against them, and resist such progression' from a professional doctor/patient relationship to a romantic relationship.
2. Without cavilling with any of these statements of principle, in their submission the respondent's counsel emphasised the observations of Beach J in Cato v Medical Board of Victoria.[29] There, a general practitioner had been found by the Board to be guilty of infamous conduct in a professional respect, having entered into a sexual relationship with his 21year-old patient. Sexual intercourse did not occur until the doctor/patient relationship had concluded, although it happened very shortly thereafter. The practitioner had consulted with the patient on only two occasions over six days, and then engaged in sexual activity with her, short of intercourse, on the seventh day, when he made a home visit. The court found that on the eleventh day the doctor/patient relationship was terminated when the couple commenced a social relationship, which involved intercourse occurring over the next two months.
3. The respondent noted that in Cato, his Honour said it would be absurd to suggest that '... no medical practitioner could ever safely form an intimate relationship with a person to whom he had once given medical treatment or advice ...'[30] No doubt, the finding in Cato was influenced by the fleeting and insubstantial nature of the doctor/patient relationship in that case.
4. In our opinion, there is no absolute rule that a general practitioner could not establish an emotional or intimate relationship with a former patient. The position would depend very much on the nature of the preexisting professional relationship, its length, and the circumstances and timeliness in which a later relationship developed.
5. Significantly, and correctly, the respondent noted that the professional guidelines proscribe a sexual relationship with a former patient, in any circumstances, if it breaches the trust the patient had placed in the doctor.
6. While Ms Wood said she felt an equal in the friendship she had with Dr Skehan, she conceded he was on a 'higher pedestal' in the doctor/patient relationship.[31] As noted by the Court of Appeal in New South Wales, the 'Doctor-patient is a classic presumptive relationship of influence'.[32] The nature and extent of such influence, and the degree to which it will have impacted upon any subsequent improper relationship which forms between a doctor and his or her former patient, will always remain a question of fact for determination.
7. Obviously, the existence of an inappropriate personal or emotional relationship between a doctor and patient - whether it involves physically intimate conduct or not - will always transgress the professional boundaries. Such a situation will almost always compromise the quality and nature of the professional relationship; at the very least it will involve a serious breach of trust; and it may, in addition, adversely impact upon a professional relationship the doctor has with a family member or close friend of the patient. The seriousness of such a professional breach of ethics will depend on a consideration of all relevant circumstances, including factors personal to the doctor and the patient. In such a situation, protection of the public and general deterrence are matters of first importance.

1. The second matter of principle concerns the standard of proof. It is not in dispute that the applicant bears the onus of proving the allegations on the balance of probabilities. However, the parties are agreed, and so is the Tribunal, that given the seriousness of the allegations, indeed their gravity, and the deleterious effect which an adverse finding would have upon Dr Skehan's character, reputation and occupational prospects, the Briginshaw[33] standard should be applied by the Tribunal before concluding that any of the allegations are made out.
2. We agree with the submission of the respondent, based on the observations of O'Bryan J in Basser v Medical Board of Victoria, that, given the serious nature of the allegations the Tribunal '... should not be satisfied that the allegations are true unless the evidence is precise and can survive careful scrutiny. That is proof on the balance of probabilities, the civil standard of proof, with the proviso that the evidence must produce a reasonable state of satisfaction in one's mind. The matter must not be approached with hindsight or by drawing indirect inferences'.[34]
3. We shall refer to this as the requisite standard.

1. The first allegation concerns the relationship between Dr Skehan and Ms Wood whilst she was his patient. It raises the question of unprofessional conduct under the MP Act, but does not allege infamous conduct in a professional respect.
2. We have already outlined the relevant dates for, and a little of the nature of, the doctor/patient relationship the couple shared. That relationship is to be assessed against the factual background which we have outlined, about which there was not a great deal of dispute between the parties.
3. On 27 March 2008, Mr Wood complained to the Board that there had been a betrayal of the doctor/patient relationship he shared with Dr Skehan in that the respondent had provided marital counselling to him in a consultation on 29 October 2007.[35] Mr Wood explained he had painfully disclosed his innermost fears and feelings concerning the breakdown of his marriage and his depression, thereby having 'opened his heart' to Dr Skehan, who had in fact been having a sexual affair with his wife.
4. On 24 April, as part of its investigation of the complaint, the Board requested Dr Skehan to respond to two contentions: namely, that he had been engaging in a sexual relationship with Ms Wood when she was his patient, and that by engaging in and maintaining a sexual and personal relationship with her he had betrayed the trust of his patient, Mr Wood.
5. Dr Skehan responded to the Board on 22 May by flatly denying that he had ever engaged in a sexual relationship with Ms Wood. He said that he and Ms Wood (and Mr Wood) had been close friends for many years. He denied betraying Mr Wood's trust.[36] He supplied a supporting statement from Ms Wood. In it, she suggested that the allegations made by Mr Wood '... are fuelled by his desire to hit back at me and hurt any other person who may have helped me'.[37]
6. It was significant, we consider, that in this response Dr Skehan failed to concede that he had formed an inappropriately close personal relationship with Ms Wood when she was his patient, which was formed as early as 2003.[38] This concession was only made during the course of hearing, and then only after the Board had questioned Ms Wood about whether phone contact between her and Dr Skehan implied they were together in Sydney in February 2006.[39] Dr Skehan said in evidence he assumed he had not formed this opinion, or he could not remember if he had, when he submitted his response to the Board.[40]
7. The nature of the respondent's concession is summarised in his written submission:

Dr Skehan admits to unprofessional conduct in relation to allegation 1 in that he admits that he developed and maintained a relationship with Ms Wood that was inappropriately close. In particular, Dr Skehan admits that it was inappropriate for him to develop a close friendship with Ms Wood whilst she was a patient such that he and she were communicating very frequently by telephone, that they had two trips to Sydney together, in February 2006 and February 2007, and that he visited her on a social and/or professional basis (such professional basis meaning having consultations with the extended Wood family, at her home regularly on a Tuesday, although it is not conceded that any of those meetings were unchaperoned [sic].

1. At the hearing, Dr Skehan and Ms Wood strongly denied that they had engaged in any form of emotional or sexual relationship before January 2009, when they said they commenced an intimate relationship which continues to the present.
2. We do not accept the denials of the respondent and Ms Wood in this regard. Their evidence in support of those denials was at times patently false and incredible. Their demeanour as witnesses was very poor. They repeatedly claimed a lack of recollection which defied belief. We are satisfied that their denials as to the existence of such an inappropriate emotional relationship were motivated by a desire to avoid the truth, and the consequences that that must surely have for Dr Skehan in a professional sense.
3. Our satisfaction that the first allegation has been made out, at least for a specified period and in particular respects, is based on our findings concerning the following five issues.
   • (a) Excessive telephone contact between Dr Skehan and Jane Wood between 2006 and 2008.
   • (b) Clandestine visits made by the couple to Sydney in 2006 and 2007.
   • (c) A romantic text message sent by Dr Skehan to Jane Wood in September 2007.
   • (d) Two admissions made by Jane Wood confirming the existence of an inappropriate emotional or intimate relationship with Dr Skehan.
   • (e) An inappropriate financial advantage obtained by Dr Skehan arising from his membership of a mobile phone plan set up by Ms Wood.

(a) Excessive telephone contact between Dr Skehan and Jane Wood between 2006 and 2008

1. The first matter to consider is the excessive mobile telephone contact Dr Skehan and Ms Wood had with each other between 2006 and 2008.[41] This consisted of mobile calls and SMS text messages, which were conveniently summarised by the applicant on a monthly basis from 2003 to 2008.[42] Much of this contact occurred early in the morning. It was well known to John and Sarah Wood and to the wider family members.
2. Significantly, there is no evidence of the content of any text message exchanged, other than for one discovered by Sarah in September 2007.
3. We shall confine ourselves to the two-year period between January 2006, immediately before the couple took a clandestine visit to Sydney, and January 2008, immediately before Ms Wood left the marital home. A summary is set out at Appendix 4. For this period, Ms Wood made 4187 calls and sent 74 texts to Dr Skehan, a total of 4261 contacts at a monthly average of 170 contacts. Dr Skehan made 3165 calls and sent 70 texts to Ms Wood, for a total of 3235 contacts at a monthly average of 130. The couple had a total of no less than 7496 calls and texts between them, which was an average of 300 contacts per month.[43]
4. The enormity and constancy of contact during this two year period is reflected in the records for the earlier years.
5. Ms Wood explained that she and Dr Skehan spoke about many different topics, including the illnesses of her neighbour or customers; the frequent need to make medical appointments for Dr Skehan to see her family members; or issues which arose within the daily walking group. She said that speaking to Dr Skehan was easy and that they often spoke about 'girl things'. She said that often she would 'prank' Dr Skehan so that he would know to return her call when he was able.[44]
6. Dr Skehan agreed that many of these calls related to the medical indisposition of family members or friends of Ms Wood.[45] He noted that many of the calls were short, and, under the mobile plan they shared, there was no charge for the first 5 minutes of a call between those numbers, so they would often call again in the second 5minute period.
7. However, Dr Skehan conceded that this significant phone contact was part of the reason why he had an inappropriate personal relationship with Ms Wood. He agreed others in the family may well have perceived that the relationship went beyond simply one of friendship.[46] He said that he did not at the time realise that this situation might constitute a strain on Mr Wood's marriage or effect other family members, but he did now appreciate that might be the case.

(b) Clandestine visits to Sydney in February 2006 and February 2007

1. Ultimately, it was not disputed that Dr Skehan had accompanied Ms Wood to Sydney in February 2006 and February 2007, when she attended trade fairs as part of her work in the family business.
2. We are satisfied these were clandestine visits, unknown to Mr Wood, during which time the couple stayed together and, in all likelihood, engaged in sexual activity. We have had little difficulty in rejecting their denials to the contrary. This was telling evidence in concluding that the applicant had proved the first allegation, in so far as it suggested Dr Skehan had an inappropriate personal and emotional relationship with his patient.
3. The annual trade fair was held in Sydney at three main centres: Darling Harbour, Homebush and Fox Studios. Ms Wood said that the fair was not simply restricted to the promotion and purchase of baby products, but one could make a wholesale purchase of all manner of items, including furniture, crockery, linen, indeed 'everything that you could possibly think of'.[47]
4. At the outset of the hearing, when the applicant amended the particulars to the first allegation, it became clear that it would rely upon evidence that Ms Wood and Dr Skehan visited Sydney together in February 2007. Indeed, flight records, which had been provided to the respondent some 10 days earlier, indicated that the couple had flown to Sydney on Sunday, 25 February 2007, although on different flights, and that on Tuesday, 27 February, they had returned to Melbourne on the same flight, sitting next to each other.[48] Apparently, the flights had been booked about three weeks previously.[49]
5. On 18 November 2010, at an early stage in her evidence, Ms Wood agreed that she had gone to the trade fair in Sydney in February 2007, and that Dr Skehan had accompanied her for the weekend. She suggested that her husband had actually invited Dr Skehan to go to Sydney so that he could buy some cheap furniture for his house.
6. Ms Wood said that she was unable to say which hotel she had stayed in, but was adamant that she and Dr Skehan had not stayed in the same hotel, and they were not together in Sydney in 2007 for any romantic or sexual liaison. She claimed she had no idea which hotel Dr Skehan stayed at. She said that on the Sunday, 25 February, she had met Dr Skehan in the foyer of her hotel when he arrived, and that they probably went out for dinner, but she claimed she could not remember where, nor could she remember what they had talked about.
7. The next morning they met again in the foyer of her hotel and went to one of the trade pavilions, but Ms Wood could not say which one it was. She had a spare pass so that Dr Skehan could get into the fair. A person did not have to be a trader to purchase wholesale, so long as they had got into the building. She was content for Dr Skehan to 'tag along' with her at the fair, but she was exceedingly busy trying to do five days work in three. In fact, she was angry with her husband for suggesting Dr Skehan should go along when she was so busy.
8. Ms Wood said she had no memory of seeing Dr Skehan after that first morning. She did not even remember sitting next to him on the flight back to Melbourne, or how they had got to the airport. However, she did remember he had purchased an outdoor furniture setting at the fair.
9. Significantly, Ms Wood said that, other than the 2007 visit, there was no other occasion when she had been alone with Dr Skehan on a trip outside Victoria.[50] This obviously applied to Sydney.
10. By 22 November, when Ms Wood was recalled to give further evidence, counsel for the applicant questioned her on the basis of phone records, whether Dr Skehan was with her in Sydney in February 2006. [51] She said she could not remember if he was or she did not know.[52]
11. The flight reservation records for the 2006 visit reveal that Ms Wood and Dr Skehan flew to Sydney together on the same flight on Sunday, 26 February 2006, and that they returned to Melbourne sitting next to each other on the evening of Tuesday, 28 February. The records suggest that Ms Wood's ticket was booked on the preceding 23 January, and that Dr Skehan's was booked the following day.
12. As with the 2007 trip, Ms Wood said that for the 2006 visit she could not remember what hotel she stayed in or even the area it was in.[53]
13. On 25 November 2010, when the reservation records for the February 2006 flights had been obtained and shown to her, Ms Wood said that, even then, she had no recollection of being on the flights or in Sydney with Dr Skehan.[54] She said she was unable to offer any explanation as to why she had gone to Sydney with Dr Skehan in 2006.[55] She claimed to have a poor memory generally. Indeed, it was only when questioned by counsel for Dr Skehan that Ms Wood finally agreed that she had either gone with Dr Skehan to Sydney, or met him there, in 2006.[56]
14. Dr Skehan agreed he attended the trade fairs in 2006 and 2007. He emphasised that the fairs were not confined to selling babyware products, which accounted for only a small portion of the fairs. In fact, he said it was possible to purchase all sorts of home products including electronics, giftware, clothing and the like. Contrary to Ms Wood's account, he said that he purchased the outdoor furniture, and probably a 4foot-high vase and a table lamp, at the 2006 fair, not the one in 2007.[57] He claimed he was unable to remember how much he had paid for these goods. He said that in light of the expenditure to fly up and back from Sydney and for his accommodation and food while he was there, he was unable to say what the saving was.
15. Dr Skehan said that when he purchased these items he may have had a pass from Ms Wood so that he could get into the fair and then purchased in her company name. He maintained that he did not obtain any financial advantage from his doctor/patient relationship with her, in spite of the fact that he could not gain entry to purchase wholesale without her facilitating that. He suggested that Ms Wood gave him the pass as a friend, not as a patient.
16. Dr Skehan did not recall being invited by Mr Wood on any occasion to attend such a fair. He could not remember any specific conversation with Mr Wood about him being in Sydney alone with Ms Wood, but believed that the issue would have come up at a conversation at one of the regular dinners he had with the Wood, and that he was 'comfortable' with that aspect of the matter.[58]
17. Despite repeated questioning, Dr Skehan said that he was unable to recall which hotel he stayed at on either visit to Sydney, or whether it was the same hotel on each occasion. At first he said he could not even recall the area of Sydney where he stayed, then he said it was around Darling Harbour on both occasions. On another occasion, he said he could not say whether he had stayed in a hotel in the CBD or out of it when on the trip in 2006.[59] He presumed he had discussed with Ms Wood in advance where they were staying. But he was sure it was not the same hotel as occupied by her.
18. He denied that he had any sexual relationship with Ms Wood whilst in Sydney on either occasion. Given the innocent nature of the trip, he agreed it would have made more sense for them to have stayed in the same hotel.
19. He could remember going to the trade fair, but could not remember whether he had had dinner with Ms Wood at any time over the three-day period. He could not remember how he had got to the airport, nor could he recall sitting next to Ms Wood on the return flight from Sydney in 2006. He did not remember how he paid for his accommodation or food. He had looked at his records, but they did not help him. He could not be specific as to whether he had dinner with Ms Wood on the first trip, even though it was the first time he was spending time in a foreign city with his patient.[60] However, he was sure that he would have socialised with her in the evenings.
20. Dr Skehan did not purchase anything on the second trip, but he did remember it was hard work because there was a lot of walking involved. Although he did not purchase anything, it was an enjoyable experience, like a shopping expedition. Despite having had the same experience from the previous year, he said it was '... just the sheer enormity of the fair it's just enormous and you walk around you just see all these different things, people making a living doing different things. It was, yeah, it was amazing.'[61] He did recall Ms Wood purchased items for her business, but he could not recall what they were.
21. Dr Skehan said that he was trying to help the Tribunal as much as he could, and rejected the suggestion that he had deliberately and falsely claimed to have no memory of relevant events in Sydney for either visit lest the truth might demonstrate that he was telling lies.[62] He reassured the Tribunal that he did not have a particularly bad memory. He said that he and Ms Wood had spoken about the hotels they had stayed at, and she had checked her tax records to clarify the matter but had been unsuccessful in that regard.
22. Such is the summary of the main aspects of the evidence given by Dr Skehan and Ms Wood concerning the Sydney visits in 2006 and 2007. Their evidence was wholly unsatisfactory. We shall deal with some aspects of it.
23. The phone records of contact between the couple in the respective week before and after each of the trips, and during the time that they were in Sydney, are most revealing. This material is set out at Appendix 5. In our opinion, the records directly contradict the contention that the couple were not together the whole time they were in Sydney for each of these visits.
24. As we have noted, on 26 February 2006 the couple took the same flight, which departed Melbourne at 8.15 am and arrived at Sydney at 9.35 am. There was no telephone contact between them prior to departure. Having arrived in Sydney, there was then no mobile or text contact between them for the three days they were in Sydney together.
25. They returned to Melbourne on the same flight, departing 8.15 pm on Tuesday, 28 February, arriving Melbourne at 9.45 pm. The following day, 1 March, there was significant mobile/text contact, which mirrored the general pattern.[63] So, too, for the following days.
26. During the two weeks on either side of the 2006 visit, there was a total of 141 calls/texts between Dr Skehan and Ms Wood which occupied a total of a little over 8 hours.
27. For the 2007 visit, the pattern is repeated. On Sunday, 25 February 2007, the day of the trip to Sydney, the couple had three lengthy calls early in the morning. At 7.15 am Ms Wood boarded her flight to Sydney, arriving at 8.35 am when she made immediate contact with Dr Skehan. Dr Skehan departed Melbourne at 3.15 pm that day, arriving in Sydney at 4.35 pm. Shortly after his arrival, Ms Wood made several contacts with him. Thereafter there were no further calls or texts between the couple for the three days they were in Sydney together.
28. On Tuesday, 27 February, the couple flew back to Melbourne, departing Sydney at 4.15 pm and arriving Melbourne at 5.45 pm. The following day, as had occurred in 2006, there was a flurry of mobile contact.[64] The following day, Thursday, 1 March, Dr Skehan contacted Ms Wood on no less than twelve occasions between 7.28 am and 7.12 pm, which included three lengthy conversations. He did not contact any other person on his mobile that day. The next day he contacted Ms Wood on ten occasions between 8.10 am and 6.53 pm.
29. During the two weeks on either side of the 2007 visit, there was a total of 97 calls/texts between Dr Skehan and Ms Wood which occupied almost 8 hours.
30. Dr Skehan was unable to explain why there was no phone contact between the couple over the period that they were in Sydney together in 2006 and 2007. He agreed that the pattern of their phone contact particularly demonstrated that they communicated first thing in the morning. He rejected the idea that the absence of any phone contact between them on any of the mornings they were in Sydney suggested that they were waking up in bed together. He said that if they had met up in the foyer of the hotel and remained together all day, and then had a meal that evening, there was no need for them to be making phone calls to each other.
31. However, we consider the absence of mobile contact between the couple whilst in Sydney - in stark contrast to the usual pattern of contact - strongly suggests that Ms Wood and Dr Skehan were together night and day on each visit. Even if they were staying at separate hotels, they would have to have made a number of arrangements to meet each day, whether to go to one or other of the three trade-fair venues or for social rendezvous, for dinner and the like. But, as is clear, their mobile phones were resoundingly silent whilst they were in Sydney, and neither was able to offer any rational explanation for that.
32. The suggestion that, as an explanation for his trip in 2006, Dr Skehan would take valuable time away from his practice so that he might purchase, in Sydney, in person, some household items at a wholesale price was far fetched, given that to do so, he had to pay for his flights, for two nights' accommodation at a hotel, for meals, and for the cost of getting the furniture (and probably the other items) back to Melbourne. Additionally, there is a significant conflict between the couple as to when these purchases were supposedly made. Ms Wood said the purchase of the outdoor furniture was in 2007. Dr Skehan stated it was in 2006.
33. Moreover, Dr Skehan's assertion that he was motivated to make the same trip in 2007 by the 'sheer enormity of the fair' reflected not only naivety, but it was an unbelievable explanation, given that he had already been to the fair the previous year; he did not go there to purchase any items; and, as submitted by the applicant, he could have had a similar experience for a fraction of the cost at a large exhibition or trade show in Melbourne without having to take valuable time out from his practice.
34. Ms Wood claimed she did not even know if her business paid for her hotel accommodation in 2007. This was hardly likely. Obviously, Ms Wood's attendance at the fair on each occasion was for a work purpose, and it was to be expected that a tax-deductible claim was made for the business in relation to her legitimate and reasonable expenditure. To that end, she would have been expected to retain receipts and records, including those from the hotel at which she stayed on each occasion. Despite Dr Skehan indicating that a search was made by her for these records, no such records were forthcoming. She claimed she did not have any records; that Mr Wood had everything, but this would seem highly unlikely as she ended up with the business as part of the divorce settlement, not Mr Wood. That is not to say that Dr Skehan bore any onus of proof.
35. Had Ms Wood and Dr Skehan actually gone to Sydney for an innocent purpose, as good friends, they would logically have stayed at the same hotel so that they could easily socialise and travel to and from the trade fair. Of course, they would have stayed in separate rooms in such a circumstance, and any search of the hotel records would have confirmed this. We consider their feigned lack of memory as to where they stayed was clearly motivated to prevent the applicant from searching the records so as to demonstrate that, in fact, they shared the same room on each of the visits.
36. Ms Wood's suggestion that it was her husband who encouraged Dr Skehan to go on the 2007 trip so as to enable him to buy furniture is contradicted by Dr Skehan himself, who did not go for that purpose and he did not buy anything on that trip. Mr Wood denied any such invitation. He said he first became aware of the trip during the hearing. We accept his evidence on this point. It was hardly likely that Mr Wood, a man wanting to save his marriage, would have suggested Dr Skehan go alone with his wife to Sydney for three days for such a spurious reason. We note the telling submission of the applicant that when Ms Wood made the assertion concerning her husband's alleged role (in evidence on 19 November 2010), there had been no allegation raised in relation to the 2006 trip. As we have explained, this only arose at a later time during her evidence.
37. Finally, we note it was not until 25 November 2010, when the flight reservations for the 2006 trip were produced, and Ms Wood was confronted with them that there was any ultimate admission (and then only to the respondent's counsel) that Dr Skehan had gone on this trip. It is to be recalled that she had initially denied Dr Skehan had taken any trip alone with her other than the one in 2007.
38. Before leaving this topic, we note the evidence of Ms Wood's sister, Hannah that she telephoned her sister whilst she was in Sydney at the Sydney fair, which she thought was in February 2007. She was suspicious that Ms Wood was having an affair with Dr Skehan. She asked Ms Wood if she could organise an appointment for her daughter to see Dr Skehan, but Ms Wood told her that Dr Skehan was away for four days with his family. At this point Hannah identified Dr Skehan's voice in the background. She asked Ms Wood whether he was there, and Ms Wood denied that he was.
39. Ms Wood said she could not recall getting the call from Hannah or anything about her sister asking if Dr Skehan was with her in Sydney.
40. Hannah said that she checked the following month's phone bills, including those for Dr Skehan, which showed that he was at Melbourne airport at around 10 pm on the night that she had had the telephone conversation with her sister. In fact, the records show that on Tuesday, 28 February 2006, Dr Skehan made a telephone call at 9.45 pm from the Melbourne airport, immediately upon his arrival from Sydney with Ms Wood.[65] It is highly likely that this is the entry which Hannah was referring to, as this is the only record of Dr Skehan making a call from the Melbourne airport in February of 2006 or 2007.
41. We have closely scrutinised Hannah as a witness, and taken account of the animosity between the sisters, but have no difficulty in concluding that she correctly noted Dr Skehan was in the background at the time the conversation occurred in Sydney, which in all likelihood was on Tuesday, 28 February 2006, before the couple returned to Melbourne. There can be no doubt that Ms Wood and Dr Skehan were together in Sydney on that day. Were it for the claimed innocent purpose, there would be no reason for Ms Wood to refrain from acknowledging Dr Skehan's presence to her sister. There was no problem in her relationship with her sister at that time.
42. We are satisfied Ms Wood was seeking to hide the presence of Dr Skehan with her at that time so that her sister would not discover that she and Dr Skehan were using the Sydney trip to pursue their illicit relationship.
43. Speaking generally, we are satisfied that Dr Skehan and Ms Wood gave palpably false answers as to their lack of recall concerning important aspects of the visits they made to Sydney. This was evident in not only the content of their answers, but also in their poor demeanour as witnesses. None of this was due to generally faulty memory. [66] The only reasonable inference open is that each lied persistently in claiming a lack of recollection concerning where they stayed, what they did, and why Dr Skehan went on those trips. We are satisfied this was in order to conceal the fact that by February 2006, they shared an inappropriate emotional relationship, which in all probability involved sexual activity in Sydney on those two visits.
44. Before leaving this topic, we note that some concern was expressed by counsel for the respondent concerning the late reliance of the applicant upon the evidence of the couple's visit to Sydney in February 2006.[67] As to this, we adopt the telling observation of the Court of Appeal, when considering a complaint about the lack of specificity in the pleadings, in Carter and State of Victoria v Walker [68] namely 'the question turns upon the manner in which the parties conducted their cases, rather than upon the niceties of the pleadings.'[69]
45. Whilst there were no pleadings in the matter and VCAT's hearings are to be conducted with as little formality and technicality as possible, the Tribunal must act fairly and it is bound by the rules of natural justice.[70] Ultimately reference to the 2006 visit did not form part of the specified particulars of the first allegation. However, we are satisfied that the significance of this evidence, as relied upon by the applicant, was well understood by the respondent and that he had ample opportunity to deal with it, including an offer by the Tribunal to take further time if necessary (none was sought).[71] Indeed, as the matter unfolded, there was no dispute from Dr Skehan that he had made the two trips to Sydney with Ms Wood in February 2006 and 2007; and in his written submission, it was made clear that these were examples of the inappropriately close relationship which he had with her.[72]

(c) The romantic text message sent by Dr Skehan to Jane Wood in September 2007

1. By September 2007, Sarah Wood was becoming increasingly suspicious about her mother being in an inappropriate emotional relationship with Dr Skehan.
2. On 8 September 2007, Sarah checked the inbox of Ms Wood's mobile phone. She said that normally her mother would delete all incoming and sent text messages, as well as all call records. However, on that morning, there was a text message from Dr Skehan which had not been deleted. It read, 'Once again im sitting here dreaming of you.' Sarah immediately sent the message to her own mobile so she would have a copy of it.[73] This was hardly surprising as, on its face, the message had a clear romantic implication for Ms Wood and Dr Skehan.
3. Later that morning, as Sarah was driving her mother to work, she asked about the text. Ms Wood had a look at her phone, read the message out loud then deleted it. Sarah asked what it meant and her mother replied it did not mean anything and nothing was 'going on' with Dr Skehan. Sarah said that later that day, they argued again and her mother '... finally admitted that she had been going out with Dr Skehan but she did not want to tell my dad. Jane said to me words to the effect of "If you tell him it will be your fault and you will wreck everything".'[74]
4. Sarah said that when she returned home she was visibly upset, and her father wanted to know what was going on. In her statement, she did not describe events thereafter, other than to say that some days later there was a family discussion when her mother admitted having an affair with Dr Skehan, when she said 'Yes, I'm with him.'[75] We shall return to the details of the family discussion shortly.
5. In evidence, Sarah conceded that her mother knew she regularly had access to her phone because it was also used for business purposes. She said she understood her mother to be admitting to sexual contact with Dr Skehan. She could not explain why she had referred to her mother admitting to 'going out' with Dr Skehan (statement) when in fact she said 'I've been with him' (evidence). Either way, she was devastated and upset by hearing this from her mother. When they got home, her mother admitted to her father that she got a message from Dr Skehan which said 'I am sitting here dreaming of you.' The father told the daughter to leave the room, which she did. Sarah was unable to give any reason why she failed to mention this exchange in her statement.
6. Mr Wood said in his statement that his wife admitted the existence of the text message, and that it had come from Dr Skehan. She denied that it indicated anything other than friendship. Mr Wood was unconvinced by her denial, but he wanted to believe that she was telling him the truth. To that end, he arranged a meeting with Dr Skehan at a cafe in Ascot Vale.
7. At the cafe meeting, he said Dr Skehan agreed that he had sent the text, but said it was a mistake, meaning that he had not intended to send it and he should not have done that. Mr Wood did not ask Dr Skehan what he meant by saying it was a 'mistake', or indeed about the nature of the message. He asked Dr Skehan if he was having an affair with his wife, and the doctor denied that this was the case. Mr Wood said he accepted this denial.
8. In his statement Mr Wood said that the cafe meeting occurred before a consultation he had with Dr Skehan on 29 October, when he discussed his marriage problems, received marriage counselling and Dr Skehan again denied any affair. But, in evidence, Mr Wood said that the cafe meeting was not until the end of November or early December 2007. Such a delay was curious given the romantic nature of the text, but Mr Wood explained that he wanted to believe the denials of his wife and Dr Skehan, and that he had been undergoing marriage counselling with his wife and wanted that to work.
9. Ms Wood gave various explanations for the text message. She had adopted a draft statement as a truthful and accurate account and sent it to the solicitors for the Board.[76] In it, she admitted that Dr Skehan had sent her the text. She said that it was sent in response to a 'brain teaser' that she and Dr Skehan had set themselves during their morning walk that day. She said she was unable to recall the quiz question because this was something they did often; however, the message referred to a song by Roy Orbison.
10. She continued in her statement that her daughter had found the message on her phone the following morning and had become angry. The marriage was going poorly and she had just moved into her own bedroom. Although there was a simple explanation for the message, her daughter was upset and very stubborn and would not listen to her. Later that evening, when they got home, her daughter told her husband about the message, and he simply dismissed the information and continued to take the washing off the line. Her son arrived, and she told them all that there was nothing going on between her and Dr Skehan, but her daughter kept insisting that there was.
11. In evidence, Ms Wood confirmed that the text had come from Dr Skehan, and that her daughter had raised her concerns about it with her on 8 September. However, she denied that she had read the message when she received it. Indeed, she said that she had never read the message, and only knew of its contents from what her daughter had told her.[77] Having found the text, her daughter was yelling and screaming about it, so much so that her husband came back inside from hanging out the washing to find out what was going on. She said that her daughter deleted the message.[78] Sarah kept yelling at her while they drove to work so there was no point in discussing the matter. They drove home together that evening, and, when they got home, Sarah's yelling and screaming continued. She said her husband came in and told her to stop acting like that, and then Ms Wood went upstairs. She said there was no further discussion about the matter.
12. Ms Wood said that despite her daughter's reaction, Sarah did not accuse her of having an affair with Dr Skehan, and that in the car she had not denied having a relationship with him.[79] Ms Wood also denied telling her daughter that she had 'been with' Dr Skehan, or that Sarah should not tell her husband otherwise it would be the daughter's fault and she would wreck everything. Indeed, Ms Wood said that at no stage did her daughter allow her to offer any explanation for the text message.
13. It can be seen there are significant differences between the account Ms Wood advanced in her adopted draft statement and that given by her in evidence.
14. Ms Wood went on to say in evidence that the next day or thereabouts she had spoken to Dr Skehan about the message, particularly because she wanted to know what it was. He may have said that it was a mistake, or it might have been something that they had been speaking about when they were walking in the morning; she was not really sure.[80] In any event, there was, she said, a perfectly innocent explanation for the message, but she had no memory of ever explaining that to her daughter. She decided to leave it to her daughter to speak further to her about the matter, if she wanted to do so.
15. Ms Wood conceded that the content of the message might make another person wonder 'if something was going on', but she rejected the idea that the message might convey some romantic attachment between her and Dr Skehan. She accepted that her daughter might think that they were having a sexual relationship but Sarah never mentioned such a thing to her.[81]
16. In spite of not knowing of the content of the message, and not having received any clear or comprehensive response from Dr Skehan, Ms Wood said that she did not know how it was that she linked the message to a song by Roy Orbison. She said there was one of his songs which had the words 'sitting and dreaming' or something to that effect in it. However, she was not really sure how she came to make this connection. [82]
17. Ms Wood denied that the truth of the matter was that she well knew she had received a romantic message from Dr Skehan.
18. In giving his evidence, Dr Skehan initially agreed that he had sent the message, but said he did not remember doing so.[83] He insisted that he had no romantic ideation about Ms Wood in September 2007. Although he did not exactly know what the message was when he had the meeting with Mr Wood at the cafe, he nevertheless reassured Mr Wood that there was nothing sexual in it, and Mr Wood seemed to accept that assurance.[84]
19. In cross-examination, Dr Skehan said that he had no idea how the text was generated. He could not explain it. Indeed, he raised the prospect that one of his daughters had sent it. But, he had not gone to his daughters to find out whether that was true. Nor could he remember checking his phone to confirm the message and time of sending, even though this would have been an obvious thing to do. Then Dr Skehan said that he remembered checking his phone, and there was no such message on it, although he could not remember when he performed that task.[85] In the next breath, Dr Skehan said that when first contacted by Ms Wood on 8 September and being told of concern regarding the message, he had no recollection of sending it, but he couldn't recall telling her that.[86]
20. Dr Skehan said that he had been informed of the contents of the text message by Ms Wood before he met Mr Wood at the cafe.[87] But the discussion about the message occupied only a short time at the cafe, and he reassured Mr Wood that there was nothing of a sexual nature in it. He said that he told Mr Wood that he did not know how the message had come about.[88] He said that he could not remember saying that it was a mistake and that he should not have sent the message.
21. Dr Skehan said he had no memory of telling Ms Wood that he had sent the message when she enquired about it on 8 September (as she had said) and he insisted that he was surprised when she told him he had sent the text.[89] He refused to concede that at that time he must have well known whether he had sent the text or not. Dr Skehan agreed that the 'implication' in the text was that he and Ms Wood were having an affair.[90] It was put to him that the simple answer to her would have been that he had not sent any such message, if that had been the case. But, he claimed that he had no memory of exactly what he had said in response to Ms Wood. Indeed, he suggested that he would not even have remembered whether or not he had sent the text the day before.
22. Dr Skehan said that he had formed the impression that Sarah was saying to her mother that he and Ms Wood were in a sexual relationship, and that this was the first time he had ever heard of such a suggestion. Given that Ms Wood was then his patient, he agreed this constituted a very serious suggestion which, if true, would have breached the doctor/patient ethical boundaries.
23. Dr Skehan said he had no idea where the 'brain teaser' suggestion came from, and could not say that the text emanated from something that had happened on the daily walk.[91] He had no idea of its connection to Roy Orbison.[92]
24. Dr Skehan said later in cross-examination that he did not realistically believe that his children would have sent the message, so there was no point in asking them about it.[93] He denied that he had repeatedly lied about the text message because he knew that it implicated him in a sexual relationship with Ms Wood in September 2007.
25. We are satisfied that the text message was sent by Dr Skehan on or about 8 September 2007 to Ms Wood, and that it reflected the existence of an inappropriate emotional relationship between the couple at that time. We do not accept the evidence of Ms Wood and Dr Skehan as to the matter generally. We consider that each lied about the message because they knew its romantic nature implicated them in such a relationship.
26. Whilst it can be accepted that Ms Wood knew that her daughter had access to her phone, and acknowledging the respondent's submission as to the unlikelihood of Ms Wood leaving such a message laying around if it suggested romantic involvement, it is the fact that people make errors in failing to cover their tracks. In this case, it would appear Ms Wood forgot to delete the incriminating message. On the other hand, perhaps the message itself gave her significant emotional comfort, and she thought that she could take the risk of keeping it away from her daughter.
27. We have no difficulty rejecting Ms Wood's suggestion that Sarah deleted the message when it was, in the daughter's eyes, proof of the very relationship which she suspected was on foot. It was also quite unlikely that the daughter would have not allowed her mother to offer an explanation for the text when she was demanding that she provide one. Moreover, given the family tension surrounding the issue, it was hardly likely that Mr Wood would have simply ignored the matter and continued to hang out the washing, as suggested by Ms Wood.
28. Contrary to the respondent's submission that the Tribunal is left with only Sarah's word that the message came from Dr Skehan, Ms Wood always conceded that the text had been sent by Dr Skehan. Indeed, she said that it was responsive to the morning quiz. Of course, if that were true, there was a simple explanation for the message, and it would not have been difficult for her to give it, especially as it must have been clear to her that she was being accused of having an affair with her doctor. The other feature of importance was that there was nothing in the message itself which suggested it had anything to do with the quiz or Roy Orbison.
29. On the other hand, Dr Skehan did not support such a simple explanation. Although Ms Wood's clear evidence was that he had admitted on 8 September sending the text to her, he was at pains to draw a distinction between the fact that the text came from his phone - which he did not dispute, even in the absence of independent evidence confirming this - and the issue of whether he had sent it. Indeed, at one stage he suggested that one of his daughters may have sent it, but, no doubt upon further reflection, withdrew that suggestion, fanciful as it was. His contention that he could not on the day actually say whether he had sent the text or not was also without merit. On any view, when questioned about the matter by Ms Wood, he had to be in a position to have been able to say either that he did or did not send the text the previous day (or that morning). This was particularly so, as he conceded the text had given rise to a very serious suggestion that he had transgressed ethical boundaries in the doctor/patient relationship. If there was some innocent explanation, this could have been provided without any difficulty whatsoever.
30. In reaching these conclusions, we have had regard to the need to carefully scrutinise the evidence of Mr Wood and Sarah for the reasons we have already explained. We have done that and are satisfied that each witness is telling the truth about the existence of the text. Both Dr Skehan and Ms Wood concede it existed (notwithstanding the attempts by counsel for the respondent to suggest otherwise in their submission). There is a photograph of it. The issue really concerns its true meaning.
31. The conflict in Sarah's evidence about whether her mother said that she had 'been with' Dr Skehan or had been 'going out with' him is of little moment. In either case, assuming the admission was made, the clear implication was that Ms Wood was admitting to a romantic, if not sexual, relationship with Dr Skehan.
32. Finally, it would appear that the unsatisfactory conflict in Mr Wood's account as to whether the cafe meeting was before or after the consultation on 29 October 2007 is of little significance at the end of the day. There is no dispute between Dr Skehan and Mr Wood that they did have the cafe meeting, and that on that occasion the respondent denied having an affair with Ms Wood. We consider it is highly likely the cafe meeting preceded the consultation on 29 October because Mr Wood said that at that meeting Dr Skehan had told him to come and see him at the clinic to get some sleeping pills - and they were prescribed at that consultation, which was the first time Mr Wood had obtained such medication. [94]
33. The evidence of the romantic text being sent by Dr Skehan to Ms Wood is another telling piece of evidence demonstrating the existence of an inappropriate emotional relationship between the couple in September 2007 when Ms Wood was Dr Skehan's patient.

(d) Two admissions made by Jane Wood confirming the existence of an inappropriate emotional or intimate relationship with Dr Skehan

1. The existence of an inappropriate emotional or intimate relationship between Dr Skehan and his patient is further confirmed by two admissions made by Ms Wood as to this effect. The first was made by Ms Wood at a family meeting she had with Mr Wood and the two children, probably in December 2007. By this time, Ms Wood had moved out of the marital bedroom and into her own room at the home. The marriage counselling had not succeeded. The three adults were still working together in the family business, but tensions were running high and there was much resentment and bitterness felt on all sides. The family met to discuss the general situation.
2. Sarah secretly tape recorded the meeting. She readily conceded that she hoped that her mother would make some admission concerning her relationship with Dr Skehan. Mr Wood said that he was not aware of the tape and only found out about it after the meeting.
3. We listened to the resultant tape recording and received transcript purporting to record certain parts of it. To call the event a 'discussion' would be an error. For most of the time, different members of the family yelled, screamed and hurled abuse at each other. It was painful to listen to the dysfunctionality of the family, particularly the anxiety displayed by 14 year old Matthew. There was much that was incomprehensible and this was reflected in the transcript. However, there were other parts which could be discerned and which, in our view, were accurately transcribed.[95]
4. Bearing in mind the limitations which we have identified, it is clear that Mr Wood was challenging his wife as to her plans concerning the marriage and the children; about her remaining in the home given the separation; and how they were going to continue running the business as a family. At one point Ms Wood admitted that she had a 'new boyfriend' and that she was 'dating him'.[96] At a later point she withdrew this concession.[97] When accused by her daughter of living in the house whilst engaged in infidelity, Ms Wood said that there was no infidelity because she was separated (as was the case).[98] She was asked whether she considered it was right that she should live in the house and have Dr Skehan as her boyfriend. She replied that she and Mr Wood were separated. Mr Wood replied, 'It's not the point'; Ms Wood responded, 'Well, too bad, it's the way it is'.[99] At one point, Ms Wood said that she had told the counsellor the day before that she had started dating her new boyfriend.[100]
5. In evidence, Ms Wood said she did not recall admitting having a boyfriend, although she did agree that she said she had told the counsellor she had started dating him, but that was not what she meant. She said there was so much yelling and carrying on it was very difficult to hear and she just wanted the meeting to be over as soon as possible, particularly as her young son was very upset.
6. We are satisfied that although Ms Wood sought to deny the existence of an emotional relationship with Dr Skehan at the time of this meeting, on other occasions she let down her guard in the very emotional circumstances pertaining and made admissions of the true situation. By that time, she had separated from her husband under the same roof and it was clear in this circumstance that she felt free to admit to having an emotional relationship, indeed, to infidelity, with Dr Skehan.
7. The second admission was made by Ms Wood to a counsellor, Elizabeth Skeels. Mr and Ms Wood had a joint counselling session with Ms Skeels on 22 January 2008, which was but a few days before Ms Wood left the marital home and moved into Dr Skehan's apartment block. Mr Wood wanted a second chance at the marriage but it was clear his wife was not interested in this. Both told the counsellor that Dr Skehan had been a long time family friend. According to Ms Skeels, Ms Wood said that '...she'd been accused of having an intimate relationship with him, and she hadn't been having one, but that she was now. But no dates or anything like that. Just she said now.'[101]
8. Ms Skeels made no note of Ms Wood's important admission. She said that when questioned by the solicitor for the Board, in February 2009, she had said that she could not recall Ms Wood saying that she was in a relationship with Dr Skehan at this session.[102] She agreed she had thereby misled the solicitor.[103] She also wrote a letter to an investigator for the Board on 15 May 2008 in which she confirmed that Mr Wood did speak at the joint session of his wife being involved in a relationship with Dr Skehan. She added, 'There is no other relevant detail relating to this issue'.[104]
9. In evidence, the counsellor made clear that she felt professionally conflicted in disclosing the admission by Ms Wood because she had received a release from Mr Wood, as to disclosure of the content of the confidential session, but none from Ms Wood. Ms Skeels explained that she felt she needed to be very careful about confidentiality issues and this explained her failure to make an early disclosure concerning Ms Wood's admission. She went further and frankly conceded that she had not told the truth about what Ms Wood had said when she responded to the investigator and solicitor for the Board.
10. Despite these shortcomings in the approach of the witness, we are satisfied she gave truthful and accurate evidence of the admission made by Ms Wood. In light of the misleading nature of Ms Skeels' communications with the Board, it was hardly likely that she would give evidence about such an admission unless it had, in fact, been made. Nor did she have any reason to give false evidence about the matter, and it was not suggested by the respondent that she did.
11. The explanation for the counsellor's response to the Board is explicable; it lay in the fact that the counsellor had failed to obtain the professional release she believed she required. The better course would have been to simply confine herself to what had been said by Mr Wood and make no comment about Ms Wood at all.
12. Of course, Ms Wood's admission, which we accept was made, conflicts sharply with the suggestion made by her and Dr Skehan that their sexual relationship did not commence until January 2009, and with her statement to the same effect to the counsellor, Chiara Hunter.[105]
13. There was evidence of two further alleged admissions of Ms Wood. But we are unprepared to act upon it. It may be dealt with briefly.
14. Mr Wood had attended Dr Skehan for the last time on 15 November 2007. He continued to harbour suspicions that his wife was having an affair with someone else. In evidence, he said that after his wife moved into the separate bedroom she admitted that she had 'been with' Dr Skehan. He said this was the first direct confirmation he had from her that she was having, or had had, a sexual affair with the respondent. He was angry and told her to arrange an appointment with the respondent so that he could '... confront him and give him a piece of my mind and get the truth'.[106]
15. Apparently, at some point around this time Mr Wood received a text message from Dr Skehan along the lines of 'If you attend my clinic, I will get the police.' Mr Wood had no further contact with Dr Skehan. Dr Skehan admitted he had sent that text to Mr Wood after Ms Wood told him her husband had threatened to confront him at the surgery.
16. Whilst the sending of such a message would be consistent with Ms Wood having told Dr Skehan she made the admission alleged, it is also consistent with Dr Skehan believing, as he said, that Mr Wood was out to make trouble for him and not wanting anything further to do with him, particularly not wanting him to come to his surgery.
17. In the circumstances of the animosity between Mr Wood and his former wife, and particularly in light of Mr Wood's failure to mention such an important admission in his statement, and the conflicting hypothesis, we are unprepared to conclude Ms Wood made this particular admission.
18. The other alleged admission of Ms Wood relies on accepting evidence from her sister, Hannah. In late 2007, Ms Wood had called together a family meeting with her siblings. She told her three sisters and her brother that her marriage was over and that she did not love Mr Wood anymore. Of course, this was clearly the case by that time. She was asked by one of her sisters whether she was 'going to hook up with Michael?' To which she replied that she and Dr Skehan were just friends.
19. Ms Wood moved out of the family home on 2 February 2008. Hannah told her that she was happy to maintain a connection with her, but that she did not want anything to do with Dr Skehan. In either late February or early March, Hannah met with her sister at Poynton's cafe. During this conversation she said that Ms Wood told her that the family had all pushed her into having a relationship with Dr Skehan.
20. In light of the animosity between Hannah and her sister, we are unprepared to reach any conclusion that this alleged admission was made.
21. Nor are we prepared to act on an alleged admission made by Dr Skehan to Mr Wood in late 2007. Mr Wood explained in his statement that in December 2007, Dr Skehan hosted a Christmas party. He invited Ms Wood, but no one else in the family. Mr Wood asked his wife not to attend but she replied that she could do what she wanted. In the early December, Mr Wood telephoned Dr Skehan, as he put it, 'to confront him directly about whether he and Ms Wood were an item'. The respondent allegedly replied in the affirmative and hung up.[107] Apparently Ms Wood did not ultimately attend the Christmas party.
22. Dr Skehan was not asked about this matter. In the absence of any support for Mr Wood as to this allegation, we are unprepared to act upon it.

(e) The financial advantage arising from the mobile phone plan

1. Around 2005, Ms Wood organised a mobile phone plan through the family business. This followed an earlier plan. Ten different persons were required to subscribe to the plan, which presumably enabled the business to make significant savings on the cost of mobile calls. As was to be expected, the legitimate business use on the mobile plan was claimed as a tax deduction.
2. Dr Skehan accepted Ms Wood's invitation to join the plan, and all of his mobile phone use was invoiced to, and paid by, the business for several years. Mr Wood and others knew that Dr Skehan was on the plan and, apparently, there was no objection to this.
3. Dr Skehan contributed his share by reimbursing Ms Wood for payments made on his behalf, but for a considerable time (we shall take a conservative approach and say for a little less than 12 months) he paid nothing for the use of his mobile phone.[108]
4. In February 2007 (perhaps November 2006), at Dr Skehan's suggestion, Ms Wood arranged for the telephone company to change the billing details from her name, at her home address in Maribyrnong, to her name at Dr Skehan's home address in Essendon. She said she was not seeking to hide their contact as this was obvious from a review of the records which had been available to others in the business and family over many years.[109] Rather, she made the change because Dr Skehan had not been paying his phone bills for some time, so this was an opportunity for him to, in effect, square up the ledger.
5. Dr Skehan agreed. Initially, he had paid his share of the account, but after a while Ms Wood stopped telling him how much he had to pay. He said that he had benefited by not paying for his phone use for a little less than twelve months, although it might have been longer. He conceded this may have given him a financial advantage.[110] He said that when the invoices were sent to his address he paid them by cheque, and that this went on for a few months. He was unable to say the exact amount he had paid on behalf of the business. He agreed that the business would have had difficulty claiming a tax deduction when he was paying the account.
6. We are unable to conclude that the change of the billing address was motivated by a desire to avoid others appreciating the significant telephone contact which Dr Skehan and Ms Wood had, and the extent to which that fact may have pointed to an inappropriate emotional relationship. We agree with the respondent's submission in this regard. As was clear, the excessive phone contact was well-known.
7. But on any view, the arrangement was a most unsatisfactory one. It is clear on the accounts provided by Ms Wood and Dr Skehan that for a significant time, Dr Skehan had the financial advantage of not having to pay his telephone bills as a result of being on the plan, which occurred because Ms Wood was his patient and friend. He obviously knew that the business was paying for his extensive use of his mobile.
8. Hence, Dr Skehan derived a financial advantage to which he was not entitled. It is not possible to quantify this financial advantage but it must be taken to be for an appreciable amount.

1. There were a number of other topics raised at the hearing surrounding the first allegation. While it could be said they tended to demonstrate the existence of an inappropriate emotional relationship between the couple, on analysis, we cannot be satisfied that they can or should be treated in this way. We shall deal with these matters fairly briefly.
2. In evidence, Ms Wood said that she had not had any sexual relationship with her husband or anyone else since July 2005.[111] Mr Wood confirmed this as well. However, Dr Skehan's medical notes revealed a pregnancy test had been conducted following a home consultation with Ms Wood on 14 September 2005. Both Ms Wood and Dr Skehan denied this was suggestive of a sexual relationship between them. Indeed, by way of support for this, Dr Skehan said he had had a vasectomy in the early 1990s.
3. As neither party submitted on the significance of this piece of suspicious evidence, we are unprepared to conclude that it stands as proof of Dr Skehan having had intercourse with his patient at or about that time.
4. Then there was evidence that in December 2005 Ms Wood had expressed a desire to invite Dr Skehan to live with the Woods shortly after his marriage ended.[112] While this does appear to demonstrate a desire on Ms Wood's part to be physically closer to Dr Skehan, it is equivocal evidence in support of the first allegation, and it does not necessarily suggest that Ms Wood contemplated she would have had sexual relations with Dr Skehan in her family home.
5. Evidence was also presented of an occasion in March 2006 when Ms Wood and several friends (as a practical joke) arranged a striptease artist to perform at Dr Skehan's medical premises on his birthday.[113] In our view, this was a wholly inappropriate event to have taken place involving a medical practitioner at his surgery during business hours. Dr Skehan agreed it was possible patients were on the premises. Whilst others were involved with Ms Wood in the organisation of the event, it is clear that she thought it was an appropriate thing to do. Dr Skehan admonished Ms Wood for doing this. The highest we can put it is that the incident reflects directly upon the nature of the very close personal relationship which Ms Wood shared with Dr Skehan at that time.
6. Another topic concerned the family holiday to Bali in March 2007. Dr Skehan went along with his two daughters for part of it. According to Hannah, Ms Wood sought to rearrange accommodation so that she and her son could share a villa with Dr Skehan and his children.[114] Ms Wood denied this. She refuted that there was any dispute or argument with Hannah and her mother about that matter.
7. Ms Wood's family were also upset about the amount of time she was spending with Dr Skehan during this holiday. Ms Wood agreed that she had gone on long morning walks alone with Dr Skehan, but insisted there was no significance in this.[115]
8. In light of the family animosity we have identified, we are unprepared to act on Hannah's accounts as to these two matters. Even assuming the accuracy of her evidence, in the context of the first allegation it is equivocal, even though it points to a strong desire on Ms Wood's part to be as physically close to Dr Skehan as possible.
9. The next matter concerns assistance which Dr Skehan gave to Ms Wood when she left the marital home on 2 February 2008. With three others, he helped her physically move her household items into a unit which was part of the block at which Dr Skehan lived in Essendon. Apparently, Dr Skehan had found the vacant unit and organised to set up a new telephone there for Ms Wood. By this time, the couple said that they no longer had a doctor/patient relationship, but, as explained, we do not accept that was the case.
10. We consider that the undisputed evidence of Dr Skehan's assistance to Ms Wood is open to different interpretation. On the one hand, this conduct is consistent with the existence of an inappropriate emotional relationship and the desire of both parties to be close to each other so that they might pursue that relationship with a minimum of difficulty. On the other, the assistance is also consistent with the very close friendship which they obviously shared at that time, and Dr Skehan feeling sympathy for Ms Wood in her marital predicament, especially as he had undergone that experience himself. In these circumstances, we are not willing to conclude that this evidence should be used in support of the first allegation.
11. The final matter in this category concerns the holiday to Phuket, Thailand, which Ms Wood and Matthew took with Dr Skehan and his two daughters between 24 and 31 March 2008. Again, we are unable to conclude that this trip, alone, reflects other than the existence of a very close friendship.

1. It follows that we are satisfied to the requisite standard that the first allegation is made out, in that between February 2006, at a time when Dr Skehan's marriage was at an end and Ms Wood's marriage was in serious difficulty, and February 2008, when Ms Wood left the marital home, Dr Skehan engaged in an inappropriate personal and emotional relationship with his patient, Jane Wood. In all likelihood this relationship involved sexual intimacy in February 2006 and 2007 when the couple made the clandestine visits to Sydney, and in January 2008 when Ms Wood attended the counselling session.
2. In reaching this conclusion, we have not needed to, and have not, relied upon the opinions expressed by Dr Robert Murdoch, who was called to give evidence as an expert concerning the ethical boundaries inherent in the doctor/patient relationship.[116] In essence, Dr Murdoch articulated non-contentious statements of principle. Dr Murdoch equivocated from time to time in expressing his opinion as to whether or not Dr Skehan had crossed the ethical boundaries, simply because it was not possible for him to reach any concluded view as to the real nature of the relationship the doctor shared with his patient.
3. We have no difficulty in accepting the concession made by the respondent, that his personal relationship with his patient was an inappropriate one by reason of his closeness and proximity to her. But, put simply, the concession did not go nearly far enough.
4. That part of the first allegation which concerns the perception, or the risk of such a perception, amongst Ms Wood's immediate or wider family, of the existence of an inappropriate emotional attachment and/or sexual relationship between her and Dr Skehan, was not actively pursued by the applicant. Not surprisingly, more emphasis was placed upon the nature of the relationship the couple shared.
5. There can be no doubt that Mr Wood and Sarah, and members of the wider family, believed in the existence of an inappropriate emotional and/or sexual relationship between doctor and patient. They were troubled by this situation. But their views were speculative and, as we say, not canvassed in any great detail in the evidence. We do not find this aspect of the allegation proven to the requisite standard. However, that is not to diminish the importance of the flow-on effects which occur to others when a doctor abuses his or her position of trust with their patient.
6. Additionally, because of the doctor/patient relationship and the inappropriate personal relationship Dr Skehan shared with Ms Wood, he obtained a financial advantage to which he was not entitled, in that as a member of the business mobile phone plan, he did not pay for his mobile telephone bill for a significant time. He obviously knew that the business was paying for his phone use and allowed that situation to continue.
7. As we have said, it is not possible to quantify this financial advantage but it must be taken to be an appreciable amount.
8. We are unprepared to treat Dr Skehan's purchase of the furniture and other items at the trade fair in 2006 as providing him with a financial advantage, mainly because any such advantage must have been nullified by the cost of getting the items back to Melbourne.
9. But by far the most serious conduct is the formation of the inappropriate emotional relationship with the patient, and this is the primary issue when considering the appropriate penalty to be imposed. By any measure, Dr Skehan's involvement with his patient, Ms Wood, was a grave transgression of the ethical boundaries. In all likelihood, it involved sexual activity with the patient. It went on for a considerable period of time and involved subterfuge and deception. It was no mere transient lapse of judgment on the doctor's part. There is no suggestion that Dr Skehan was suffering from any physical or mental condition which would explain or mitigate such a lapse of standards. He must surely have realised the magnitude of the breach of ethics and trust involved. Additionally, the transgression is aggravated in that whilst it was on foot the practitioner continued to treat Mr Wood for at least two years which was a grievous breach of the trust Dr Skehan was expected to share with Mr Wood, and the patient was entitled to receive from his doctor. This was none more evident than when Dr Skehan was purporting to provide marital counselling to Mr Wood in late 2007.
10. However, in the absence of specific evidence, it is not possible to conclude this situation impacted adversely upon the objective nature of Dr Skehan's clinical judgment, whether concerning Mr and Ms Wood or other family members. In its oral submissions, the applicant specifically disavowed that the improper relationship explained or was connected to Dr Skehan's failure concerning the third allegation.

1. The second allegation concerns whether, since January or February 2008, Dr Skehan has engaged in an inappropriate sexual relationship with Ms Wood as his patient or former patient, and whether, if so, this included betraying Mr Wood's trust. In practical terms, given the closeness in dates to when she was last recorded as Dr Skehan's patient, we have treated the allegation as confined to Ms Wood as a former patient.
2. The allegation concerns the existence of a sexual relationship. It is not simply confined to the existence of an emotional relationship, which, as we have noted, does not necessarily have to involve sexual activity.
3. The allegation must be dealt with in light of our finding as to the first allegation, rather than on the basis that Dr Skehan or Ms Wood simply commenced an intimate (sexual) relationship in February 2009, as claimed. As we have found, an inappropriate emotional relationship was on foot from February 2006 and it was still in existence in January 2008, when Ms Wood told the counsellor she was then in an intimate relationship with Dr Skehan.
4. It is clear that since Ms Wood moved into Dr Skehan's apartment block in February 2008, the couple have remained in very close contact; and they have continued to socialise, including going on holiday in March 2008 (to Thailand) and the summer of 2008/2009 (to Anglesea).
5. While there is no direct evidence of sexual activity between the couple after January 2008, there is no reason to conclude other than that their emotional relationship continued throughout 2008. Indeed, we infer it would have developed significantly, given that Ms Wood had left her husband and the family home, and on their own account, they commenced intimate relations in January 2009.
6. Nor is there evidence from which it may be inferred that the likely sexual activity in 2006 and 2007 continued after January 2008. Our rejection of the couple's denials of the existence of an inappropriate emotional relationship, and likely associated sexual activity, does not enable us to do that. Accordingly, for the purpose of the second allegation we will proceed on the basis that sexual activity occurred between Dr Skehan and Ms Wood from January 2009 and that it has continued to the present. This is the basis upon which the respondent submits we should proceed. But we cannot ignore that such a relationship was preceded by the continuation of the inappropriate emotional relationship which the couple shared in 2008.

1. The question arises - in these circumstances, was it appropriate for Dr Skehan to commence a sexual relationship in January 2009 with his former patient, which continues presently?
2. In answering that question it is unnecessary to consider in depth the circumstances in which it may or may not be appropriate for a general practitioner to commence a sexual relationship with his or her former patient. There may be circumstances where a passing attendance upon a patient for a relatively unremarkable medical issue may not prevent a doctor from commencing an intimate relationship with that patient some 12 months later.
3. But Dr Skehan's position is obviously very different. He treated Ms Wood for something like 20 years concerning a host of medical issues, some of them involving intimate physical and psychological aspects. And he engaged in an inappropriate emotional relationship with her while she was his patient, in all likelihood one which involved sexual activity. In those circumstances, it is not possible to conclude that the intimate relationship was the product of an equal and independent decision taken jointly by Dr Skehan and Ms Wood. The nature of the doctor/patient relationship and the inappropriate emotional relationship they shared must be taken to have played a significant part in that decision, to the detriment of Ms Wood. We agree with the applicant's submission that '... a doctor patient relationship of the longevity and nature of that between [Dr Skehan] and [Ms Wood] inevitably becomes imbued with a degree of intimacy and trust which almost inevitably renders progression by the doctor to a romantic relationship exploitative. The onus is, and must be, upon the doctor in such circumstances to appreciate the risks, guard against them and resist such progression.' The applicant emphasised the high duty which remained upon Dr Skehan to guard against and resist any temptation to enter into a sexual relationship with his former patient, even if she was actively drawing him into it (of which there is no evidence). As it was put, '...it would have been impossible then, and is now impossible, to conclude that [Dr Skehan] was not taking advantage of an attachment or dependency created in the course of the professional relationship.'
4. Given the nature of the doctor/patient relationship they shared, and the principles we have already discussed as to the appropriate ethical boundaries, in our opinion, it was not appropriate for Dr Skehan to have commenced a sexual relationship with Ms Wood at any time after she ceased to be his patient, and certainly not since January 2009.
5. We do not consider any question of betraying Mr Wood's trust arises in this situation. By this time, Ms Wood's marriage was at an end, and she had left the marital home. Mr Wood was no longer Dr Skehan's patient and they no longer had any social or other contact.
6. It was a clear breach of his ethical obligations for Dr Skehan to continue the inappropriate emotional relationship with Ms Wood once she stopped being his patient, and to commence a sexual relationship thereafter. But this situation was the result of his breach of ethics with his patient in the first place. In effect, one breach followed the other.
7. We are satisfied to the requisite standard that the second allegation is made out in that since January 2009 to the present, Dr Skehan has engaged in an inappropriate sexual relationship with his former patient, Jane Wood.

1. Allegation three concerns the alleged failure by Dr Skehan to exercise the skill and care of a reasonably competent medical practitioner in his clinical management of Mr Wood's elevated Prostate Specific Antigen (PSA) test results.
2. Five PSA results for Mr Wood were ordered by Dr Skehan and reported upon over the 10year period from 1997 to 2007. We set out the chronology, with our added observations in [brackets].

Mr Wood [43 yo] has colonoscopy for rectal bleeding. "2 month history of PR bleeding. No abnormal features detected."

notation 'results' [presumably relating to PSA and other bloods from Feb 97]

"bright PR bleed once, painless...DD [differential diagnosis?] H'oid [haemorrhoids] ...PH [past history?] colonoscopy 2 o'clock only"

taken 30/05/02 - PSA 4.5 - computer record of PSA and other test results notified on 24/02/03]

Presenting: fevers, nausea, diarrhoea and "PR bleeding 3 days."

Examination: No abdominal tenderness. "No PR blood"

[Results notified for PSA 4.5, from 30/5/2002, along with other blood-test results - almost 9 months later]

taken 2/12/04 - PSA 6.8 - computer record of PSA and other test results notified on 7/2/06]

[No reference to PSA issues - no blood for PSA taken by this date]

Blood taken for PSA [6.8] with statement by pathology company -

"Increased PSA noted. Correlation with history and examination findings is needed. Measurement of free and complex PSA or repeat testing in 2-3 months may be valuable. If interpretive assistance is required please contact Dr Alan McNeil on (03) 9244 0380."

[the next consultation following test result on 3/12/04 -

[Notification of PSA 6.8 along with other blood-test results from 2/12/04 - 14 months since result reported]

[taken 6/4/06 - PSA 3.4 - computer record of PSA and other test results notified on 12/4/06]

[Notification of PSA 3.4 from 6/4/06 along with other test results]

Presents: check up/neck and forehead lesions/Seb K back

[taken 23/10/07 - PSA 3.9 - computer record of PSA and other test results notified on 29/10/07]

Blood taken for PSA [3.9] and reported to Dr Skehan on this day

Reason for visit: check BP/insomnia/marital counselling

[Notification of PSA 3.9, along with other blood-test results from 23/10/07 - 6 days later]

1. Mr Wood said in his statement that he did not have any symptoms, such as incontinence, which may have indicated an enlarged prostate gland. He said Dr Skehan did not perform a digital rectal examination (DRE) of his prostate, noting 'I think I would have remembered if he had suggested a manual examination.'[117] At no time did Dr Skehan or anyone from his clinic inform him that he had an elevated PSA level. Although from time to time he would have tests done and make an appointment to speak with Dr Skehan about test results, he had no recall of ever receiving notice to discuss any of his PSA test results.[118] He said that he was never referred to a specialist or other medical practitioner in relation to his elevated PSA levels or generally concerning his prostate.
2. On 24 April 2010, Dr Skehan responded to the concerns of the Board that his clinical management of Mr Wood was inadequate in that he failed to conduct further investigation and/or failed or provide Mr Wood with a referral to a specialist, in circumstances where he had reported rectal bleeding and where test results had revealed that he had elevated PSA levels.[119] Dr Skehan said in his response that his notes recorded that the only time rectal bleeding was mentioned was at a consultation on 24 February 2003 and examination 'including of the rectum' revealed no abnormality. He said haemorrhoids were diagnosed, and no further treatment was deemed necessary. Dr Skehan added that rectal bleeding was not a symptom of a prostate problem.
3. Dr Skehan was in error in suggesting that rectal bleeding was mentioned at only one consultation.[120] As the chart above indicates, Mr Wood had problems with rectal bleeding from as early as February 1992, which led to a referral to a specialist who conducted a colonoscopy in October of that year. The problem recurred in April 1997.
4. Dr Skehan continued in his response by (correctly) noting that no prostate symptoms were ever described in his notes, and that all PSA tests were done in the setting of a checkup with other blood tests. He then described the four test results which had been obtained between May 2002 and October 2007 as follows:

Date order Date of Test Result Range Notification to Mr Wood

All results were discussed with Mr Wood. I believe that following the abnormal result, I told Mr Wood he could see a urologist. My practice in these circumstances is to offer a list of appropriate specialists and allow the patient to make an appointment with one. I write these on the tear off portion of the computer script paper. I believe I provided such a list to Mr Wood but he chose not to make an appointment.

1. In evidence, Mr Wood was adamant that at no time had he been informed by Dr Skehan of having an elevated PSA level. He said he would certainly have been alarmed to hear that he might be at risk of developing prostate cancer. He said that the PSA testing always took place in the context of Dr Skehan conducting general routine blood tests.
2. Mr Wood said that he went to a new general practitioner around January 2008. In July that year, further PSA testing was undertaken which revealed elevated PSA levels. Mr Wood was referred to a specialist who conducted a number of prostate biopsies in January and April 2009, as there was concern as to the possibility of prostate cancer. In May 2009, Mr Wood was informed that the last biopsy was negative for cancer. As at November 2010, he had no prostate problems, although he was being monitored.
3. Dr Skehan's notes and his letter to the Board suggest that on 7 February 2006, there was a 'notification' of a PSA level of 6.8 (this was from a test ordered 14 months earlier in December 2004). In cross-examination, Mr Wood denied counsel's suggestion that at that consultation, in light of the elevated PSA, Dr Skehan had advised him to see a urologist and gave him the name of three specialists written on computer paper.[121]
4. In reexamination, Mr Wood reiterated that he had never been informed by Dr Skehan about any elevated PSA levels. He said 'I know that if I had have been advised that I had high readings on PSA I would have immediately done something about it.'[122]
5. In evidence, Dr Skehan said it was always his practice to discuss test results as they come in, and that he believed he had done that with Mr Wood.[123] He agreed he had never performed a DRE, and believed that if the patient saw a urologist; such an examination could be conducted by the specialist.
6. Dr Skehan said that he would usually receive the pathology results the day after they were determined, because the results were automatically downloaded into a holding file on his computer.[124] He said that the first job of the day was to go through the results and decide what sort of action had to be taken, and to move the information from the holding file into the patient's history. Then, as he put it, '... the electronic marker that's noted later on is when you look at the results in the patient's file and click on them that they've been notified.'[125] Hence, he would have received the 6.8 result between one and three days after it was taken on 2 December 2004.
7. He said that in circumstances where the PSA was out of range, and higher than it had been before, he would suggest the patient see a urologist. Dr Skehan said he believed he had done this with Mr Wood - because it was his normal practice - but he had no memory of having done so, and could not say when he did that.[126] He presumed he told Mr Wood about this face to face, and when he notified a patient it clicked over on the computer, which was the record of notification. His practice was to do this promptly, and he believed he would have notified Mr Wood of the 6.8 result within weeks of its receipt.[127]
8. It is to be recalled it was put to Mr Wood that Dr Skehan told him of the 6.8 result at the consultation on 7 February 2006 (when the notification occurred in the record), which was quite contrary to Dr Skehan's alleged practice. Of course, the puttage was consistent with Dr Skehan's own letter to the Board.
9. As is clear from the chronology, and consistent with the evidence Dr Skehan gave as to notification, there were significant, indeed alarming, delays in the notification of some of the PSA results. For the tests taken on 30 May 2002 (PSA 4.5), there was a delay in notification of almost nine months, and for the blood taken on 2 December 2004, reported the following day (PSA 6.8), there was a delay of 14 months in notification recorded on the computer. Mr Wood was ageing (52 to 55) and his PSA results were increasing - from 3.2 in March 1997, to 4.5 in May 2002, and 6.8 in December 2004.
10. In cross-examination, Dr Skehan agreed that the consultation on Tuesday, 7 February 2006, was a home visit, as confirmed by the Medicare charge. He presumed that he did not have his computer with him on that occasion, and the likelihood was that after he completed his rounds on the Tuesday he would open up his computer at the surgery and enter the appropriate information for that day. He agreed that the notification of the PSA result from 2 December 2004, which was recorded on 7 February 2006, did not necessarily signify that he had in fact notified that result to the patient on that particular day; merely that he had done something in relation to the result.[128] He conceded the possibility that, despite his supposed practice of informing the patient of the test result within 2 or 3 days of its receipt, there was a possibility that he had not notified the 6.8 result until 7 February 2006.
11. Dr Skehan said further that he did not have a memory of writing the names of the three urologists on the small piece of paper, pulled off from the prescription generated by the computer, which he believed he gave to Mr Wood.[129] He had adopted this approach on many occasions with different patients who were capable of making the decision themselves as to which specialist they would like to consult. He claimed he had an actual memory of seeing the note on a table at Mr Wood's house, but he could not remember who the three urologists were.
12. Dr Skehan was asked about the 4.5 result taken on 30 May 2002 (ordered at the consultation on 28 May), which was recorded as being notified 9 months later on 24 February 2003. He was unable to say if he had spoken to Mr Wood between the two consultations. [There was certainly no consultation recorded between these dates.] He said he did not know why he failed to perform a DRE on receipt of that result,[130] nor did he have any recollection of speaking about it to the patient in early June 2002.
13. Dr Skehan also said that he was not sure how he was able to make a note that there was no rectal blood on 24 February 2003 if he had not undertaken a rectal examination, which he said he did not believe he had done. He said the reference, in his letter to the Board of April 2010, that he had performed a rectal examination at that consultation, was an inaccurate statement, which he should not have made.
14. Dr Skehan conceded that he should have done more for Mr Wood in connection with the readings of 4.5 and 6.8, describing the 6.8 result as 'significantly high', and one which required a rectal examination or referral to a urologist.[131] It was clear to Dr Skehan that Mr Wood made no selection of a urologist, because a referral was never made. He had no memory of following this up with the patient.
15. Dr Skehan also conceded he was aware that between 2004 and 2006 there were different forms of prostate cancer, one of which was a particularly aggressive form of carcinoma. But he said he was not sure he knew in that period that leaving a patient for months, or even more than 12 months, could put the patient's life at risk. However he accepted that that was the case by the time of the hearing. Certainly, he did not discuss with Mr Wood that people could die quite quickly from prostate cancer of the more aggressive type. No sense of urgency was stressed to obtain a referral to a specialist.
16. Dr Skehan also agreed that performing a DRE in February 2006, when the 6.8 result was notified, would have been of 'additional benefit' because the presence of an enlarged prostate may have been a symptom of prostate cancer.[132] He did not know why he did not do this in the circumstances. Dr Skehan agreed that it would have been better medical practice to have performed a DRE, and he said he should have done so at that time.[133]
17. Dr Skehan said that the practice of giving three names of specialists was in his experience a 'terrific system', because the patient ended up with a specialist they wanted to see, and it was administratively much easier for the doctor.[134] However, he conceded that there was no system in place which would ensure a formal follow-up with the patient to ascertain whether they had elected to see a particular specialist or not.[135]
18. Dr Skehan said that if he notified Mr Wood of the 6.8 reading on 7 February 2006, he would want him to have a retest within two to three months, as recommended in the pathology note. Indeed, he said he ordered that test on 5 March because of that high result, so it was appropriate to do it.[136] The retest he ordered was not merely a part of his regular two-yearly routine to test for such matters.[137] However, if the patient was going to see a urologist (as he had recommended), then it was unnecessary to have a retest, that would be something left to the specialist to decide upon.
19. The final witness concerning this allegation was Dr Nick Carr, a Fellow of the Royal Australian College of General Practitioners, who has been in general practice since 1988. Without objection, he was called to give expert opinion as to the PSA issue. He acknowledged that the PSA is used as a screening test for possible prostate cancer, but it is an 'imperfect test', as high levels may occur in the absence of any cancer, and cancer may be present even when PSA levels are low. Hence, the standard recommendation is to combine the PSA with a DRE.[138] Dr Carr said the PSA may also be affected by short-term issues such as prostatitis or recent ejaculation, and also by the DRE itself. He said that it may be controversial within the medical profession whether PSA screening should be undertaken, but, having decided to do so, and having received results, certain follow-up action is required; the problem must then be properly managed.
20. Dr Carr said there was no definite cut-off figure between normal and abnormal PSA; rather, it was a sliding scale. In general, a reading of less than 4.0 is considered within the acceptable range, but, to some extent, the acceptable range also varies with age, rising as a man gets older. For any individual male, what is relevant is not just one reading, but also the change in readings over time.[139]
21. Dr Carr's opinion was that the reading of 3.2 in March 1997 was relatively high for a man of 47 (Mr Wood's age). This reading was described by him as 'a bit high'. The reading of 4.5 in May 2002 was a 'relatively high result', demonstrating that the level had risen over the previous five years. A DRE should have then been performed, and another test within about six months, or referral onto a specialist.
22. By December 2004, the PSA had risen again, to 6.8. In Dr Carr's opinion, there should have been a DRE and a referral, if that had not already occurred. Dr Carr noted the advice of the pathology company as to the value of a repeat testing within two to three months. As he put it:

Raised, and rising, PSA indicate a possibility of prostate cancer developing. The risk of not following this up is that a relatively small or early cancer may have the chance to develop and/or spread, making treatment potentially more difficult or less successful.[140]

1. In light of the medical record, Dr Carr expressed his concern about two aspects of Dr Skehan's management. He said, 'Firstly, he does not seem to have adequately informed his patient about the results, nor made any appropriate arrangements for follow-up. ... Secondly ... if the decision has been made to do a PSA, then it should be combined with a DRE.'[141] The history of rectal bleeding in April 1997, alone, probably merited a DRE, the more so when a patient has a raised PSA.
2. Dr Carr expressed his opinion that Dr Skehan's recurrent failure to perform a DRE and to act on the raised, and rising, PSA, was not appropriate medical practice. Nor was the apparent failure to inform Mr Wood about the possible significance of his PSA results, which rose to significant levels. He said, 'It is my opinion that these aspects of Dr Skehan's medical management of [Mr Wood] fall considerably below what would be expected of a competent medical practitioner.'[142] Dr Carr noted the PSA readings in 2006 and 2007, which had fallen to 3.4 and 3.9 respectively, may have given some reassurance, but they did not alter his opinion about what should have occurred between 1997 and 2004.
3. Dr Carr supported these opinions in evidence. He said that the reading of 3.2 in 1997 would not cause great alarm, a little bit higher than average for someone of Mr Wood's age. The presence of rectal blood was not connected to possible prostate problems, but its relevance was that it implied a reason for conducting a DRE.[143] It would be routine to examine the prostate if conducting a DRE. The reading of 4.5 in May 2002 was described as only just outside of the range, but on the high side. Dr Carr said that in the context of the previous lower reading it would have been essential to take some action, which would include conducting a DRE and explaining to the patient the possible significance of the situation. Referral was a possibility, but not essential at that stage. Probably a repeat of the test and a repeat DRE in the fairly near future, say between the next 6 and 12 months, would be sufficient.[144]
4. As to the reading of 6.8 in December 2004, with a patient of 55 years of age, Dr Carr said there should be concern about the possibility of prostate cancer. This was particularly so because the reading had risen over time. In fact, it had more than doubled over the past seven years. This would add to the level of concern, requiring further investigation. A DRE was then essential, and a referral to a specialist may have been appropriate.[145] The DRE should have been performed within two to three months, which was to be followed by another DRE and a blood test to determine whether the PSA was continuing to rise. The witness said that the delay of 14 months from December 2004, when the 6.8 result was reported, until February 2006, when there was notification of the result recorded on the computer, and nothing to suggest that the matter was addressed in the meantime, was a 'major area of concern' for him.[146] Dr Carr said that the general practice rule was that an abnormal result, inferentially referring to the 6.8 reading, should be flagged electronically or in some paper record so that the patient is either contacted and asked to come and discuss the results, or, if they have not been seen after a certain length of time, they would receive a reminder or recall.[147]
5. Dr Carr said he agreed with the view expressed by Dr Skehan in his letter to the Board that rectal bleeding was not a symptom of prostate problems.[148] He also said that Dr Skehan's reference in his letter to the Board that there had been 'examination, including of the rectum', could mean that either the examination was performed by way of DRE or by using a proctoscope, a small instrument which allowed the doctor to look into the anal canal. Having reviewed the clinical notes, Dr Carr could find no reference to any discussion having taken place with Mr Wood concerning the PSA issue.[149]
6. Dr Carr said that he used the same computer program as utilised by Dr Skehan, and that the computer notation of 'notification' of a test result did not necessarily mean anything was said to the patient. The notation simply indicated that the doctor had marked something on the electronic record.[150]
7. Finally, the witness expressed the view that providing a list of three urologists was a reasonable way of managing the referral option, so as to give the patient a choice and an opportunity to maybe discuss with friends or relatives who he would prefer to go and see. This was 'good practice'.[151] However, he noted that there was nothing in the records to indicate that this was the approach, and no follow-up to see whether the patient had actually chosen a specialist.
8. In cross-examination, Dr Carr said the reading of 6.8 was the one of most particular concern. He said that readings in an upward trend are much more significant than a little bit of movement where some are up and some are down. It was good practice to discuss the results with the patient at the time they are noted. He said it was an accepted part of current practice that recall and reminder systems for abnormal results were in place. This has been a standard part of general practice for many years and one utilised in his own practice for 15 years. For the past 10 years, accreditation of general practices has required a recall and reminder system.[152] Nevertheless, the patient had the ultimate right to decide not to see a specialist if he or she did not wish to do so.
9. Dr Carr said that it was important to question the patient about family history, because a family history of prostate cancer does increase the risk for an individual from that family. Taking such a history was something that a general practitioner would know to do. Dr Carr reiterated that the PSA was a sliding scale that indicated the possibility of cancerous development in the prostate, and that the higher the PSA, the more chance there is that some form of malignant change has occurred, but it does not give a definitive answer one way or the other.[153] Typically, prostate cancer grows slowly over years rather than months, but there is a more rapid form which can develop more quickly over the course of just a few months.[154] This more aggressive type of prostate cancer occurs in the younger patient, and Mr Wood fell into this category.
10. Essentially, there was little contest by the respondent with the opinions expressed by Dr Carr, and, in the result, his counsel indicated they would not rely upon evidence which was proposed to be called from other experts in this field.[155]

1. We accept Dr Carr's evidence and his opinions.
2. Although there may be some deficiencies in the practice of providing the name of three specialists for a patient to consider, so that there could be a referral to one of them, we are unprepared to conclude that Dr Skehan's adoption of such a procedure was a bad medical practice. Indeed, Dr Carr expressed the opinion that this was an appropriate technique, so long as the appropriate specialist was chosen. The real question is whether Dr Skehan did this with Mr Wood and, more generally, whether he managed the PSA issue appropriately.
3. There is a stark contrast between the evidence of Mr Wood and Dr Skehan as to what happened. We have closely considered the evidence and the demeanour of the witnesses. We accept the evidence of Mr Wood that he was not informed of any PSA levels, particularly those of 4.5 and 6.8 recorded in May 2002 and December 2004, and not given the names of three urologists.
4. Mr Wood said that from time to time he would have tests done and the clinic receptionist would call him and he would make an appointment to speak with Dr Skehan about test results, but not as to PSA levels.[156] The respondent submitted that this '...suggests that Dr Skehan specifically told the receptionist not to call Mr Wood in relation to his PSA results.' The submission went on to assert that evidence should have been called from the receptionist as to what he or she was instructed by Dr Skehan. This submission is without merit. It was never put by Mr Wood or the applicant that Dr Skehan had wilfully 'quarantined the PSA results from his discussions' with his patient. The applicant's case was that the doctor incompetently failed to notice and act professionally about the PSA results in a timely way. Indeed, the applicant eschewed any suggestion that Dr Skehan failed in this way because of the inappropriate emotional relationship he had with Ms Wood. Just because the doctor asked to speak about certain results does not mean he specifically told his staff not to speak with the patient about others. In any event, Dr Skehan was not asked about this by his counsel and it was always open to the respondent to call the receptionist if his was of any real concern.
5. Turning to another matter, the evidence of Ms Wood that she recalled Mr Wood saying that he was not going to let Dr Skehan 'stick his fingers up Mr Wood's arse' is wholly unreliable, if for no other reason than that Dr Skehan never suggested he would perform a DRE on Mr Wood. Hence, there was no occasion for Mr Wood to be discussing such a proposal with his wife.
6. Although Dr Skehan suggested in his letter to the Board that there had been a rectal examination, in light of his denial of having undertaken a DRE, backed up, as it was, by Mr Wood, and Dr Carr's explanation that such an examination would otherwise need to be performed by use of an instrument, we are confident that no DRE was ever conducted.
7. In truth, Dr Skehan did not give evidence to contradict the account of Mr Wood that he was not advised of the elevated PSA levels. In effect, the doctor relied upon his 'usual practice' to say that he must have been aware of the elevated readings at the time they were reported, and must have discussed them with Mr Wood. Even by his own account, in the letter he wrote to the Medical Board, he did not notify Mr Wood of the elevated readings until almost 9 months later for the 4.5 reading, and 14 months later for that of 6.8. His attempt to backtrack on this account in evidence was most unimpressive.
8. Had Dr Skehan received the results within two or three days of the taking of and reporting on, the sample (as was to be expected), and he truly reviewed the pathology results on a daily basis, the notification entries would be found in the record at or about the time they were received. But this is clearly contradicted by the notes.
9. In the case of the result notified on 7 February 2006, Dr Skehan was conducting a home visit when he did not have his computer, so it could not be the case that he was discussing the 6.8 result with the patient at the time that he was making the notification computer entry. Nor could he have had on that home visit a torn-off part of prescription paper generated by the computer on which he wrote the names of the three urologists.
10. With rising PSA levels of the kind reported, the concern should have been the greater, and so too, the action. It would appear the warning of the pathology company; following the reading of 6.8 that there should be repeat testing in 2-3 months, was completely ignored at the time the result was received. Had that test result been acknowledged by Dr Skehan in December 2004, as he suggested was his practice, there would have been a record of a further test performed within 2-3 months. Ordering the retest in April 2006 is wholly consistent with Dr Skehan only noticing the 6.8 result in February 2006, and it was no doubt responsive to the clear advice of the laboratory which he would have then noted. That alone suggests that the first time that Dr Skehan understood that such a high reading had been reported was when he noted it on his computer in February 2006.
11. On the other hand, had Dr Skehan truly given the names of three specialists to Mr Wood, there would have been no need to order the retest the following month. That matter would have been handled by the specialist.
12. It is inconceivable that a competent general practitioner would not have discussed the significance of the 4.5 and 6.8 results with the patient soon after their receipt. Had that occurred, as suggested, there would have been an entry made in the records to that effect. At best, the 'notation' is no more than a computer entry signifying that Dr Skehan acknowledged the pathology result in the patient's notes. It does not prove that the doctor was discussing the results with the patient on the day of notification. Any suggestion that the patient had been provided with the names of three specialists would also be expected to have been noted. The absence of records about these matters is wholly supportive of Mr Wood's account and cannot simply be explained, as submitted by the respondent, as the result of 'imperfect' record taking.
13. Advice about such a serious issue was hardly likely to be forgotten or ignored by Mr Wood. A DRE would have been suggested by a competent practitioner, and in Mr Wood's case, undoubtedly performed with the patient's encouragement.
14. Certainly by December 2004, there had been a doubling of the PSA level, and immediate steps should have been taken by Dr Skehan to refer Mr Wood to a specialist. Even assuming that he provided the list of three urologists, there was an obligation to follow up the matter with his 'good friend', whom he was seeing regularly, not just in his surgery. There was obviously missing in Dr Skehan's practice a professional recall and reminder system of the kind a competent general practitioner would employ.
15. In essence, we agree with the submission of the applicant that there is no reliable evidence from Dr Skehan to set against the account given by Mr Wood in relation to this allegation. The clinical notes between May 2002 and March 2006 are, as submitted, conspicuous for the absence of evidence of an appropriate sense of urgency, follow up, or even attention by Dr Skehan to the care of his patient. The notes do not even contain a reference to the patient's family history, a matter of importance when considering prostate cancer.
16. As made clear by Dr Carr, and as submitted by the applicant, '... a deficiency in the care of a patient with significantly rising PSA levels over a relatively short period could have had serious consequences. That the consequences turned out not to be serious is fortunate for Mr Wood, but irrelevant.'
17. We are satisfied to the requisite standard that between May 2002, when the 4.5 result was received, and February 2006, when the 6.8 result was finally acknowledged, Dr Skehan failed to exercise the skill and care of a reasonably competent medical practitioner in relation to his clinical management of his patient, John Wood, concerning the patient's elevated PSA test results.
18. We are satisfied that during this period, Dr Skehan did not report test-results to Mr Wood in a timely fashion, and did not explain to his patient the significance of the elevated levels of 4.5 and 6.8 in the context of rising PSA levels since March 1997. Nor did Dr Skehan conduct a DRE when it would have been appropriate to do so or provide Mr Wood with a referral to a specialist in relation to the 6.8 level when it was reported to him in December 2004.

1. We turn now to the final allegation. It is alleged that on or about 17 March 2007, Dr Skehan engaged in unprofessional conduct, in that he created clinical notes for a consultation with, and produced a medical certificate for, Mr Wood, in circumstances where no consultation and/or examination by him of Mr Wood had actually occurred.
2. This allegation arose at a late point in the investigation conducted by the Board. Mr Wood was reviewing the medical notes concerning his treatment, and came across an entry which suggested there had been a consultation on Saturday, 17 March. The entry was as follows.[157]

1. The medical certificate referred to in the notes, which it is agreed was created by Dr Skehan, reads as follows.[158]

This is to certify that Mr. John Wood is receiving medical treatment and, for the period Saturday, 17 March 2007 to Saturday, 31 March 2007 inclusive will be unfit to travel due to middle ear infection.

1. Mr Wood informed the Board that he had particularly noticed the entry because it suggested he was 'booked to fly' on that Saturday. He explained that no such consultation had taken place.
2. As we have already noted, a family holiday was arranged in Bali for Ms Wood and her family with her sister, Hannah, and her family and mother. At Ms Wood's suggestion, Dr Skehan and his daughters joined the holiday. The departure date for the two families was Saturday, 17 March 2007. Dr Skehan and his daughters were unable to get tickets for that date and they joined the group for the second week of the holiday, departing 24 March. In the result, the Woods' son, Matthew, departed with his aunty and cousins on 17 March. Ms Wood put her trip back a few days due to business commitments and left on the following Tuesday, 20 March.
3. Sarah was always going to stay behind to look after the business. About one week before the scheduled departure date, Mr Wood decided that he would not go on the holiday. Instead he remained behind to assist his daughter with the business. Particularly, there was a shop relocation and fit-out to be supervised. Accordingly, Mr Wood cancelled his trip, and hence, he was not 'booked to fly' on 17 March.
4. Had he wanted and been able to go on the holiday, he had no medical issues which prevented him from flying. He said he certainly would have remembered any consultation with Dr Skehan, had it occurred on the day that his son flew out to Bali.
5. In evidence, Mr Wood supported this account. He explained that his wife had paid for their family tickets. He denied he had an ear infection and that there was any examination by Dr Skehan. He said that he remembered going to the airport to see his son off and that he had departed around mid-morning. He worked the day before, that day and the day after, and recalled that he had a delivery straight after the departure.[159]
6. Sarah supported her father's account. She made a statement indicating that she had decided not to go on holiday because of pressing work commitments, which included relocating to a newer area in the same shopping centre. She said she discussed the matter with her father and it was decided that he would also stay behind to look after the business. Sarah continued:

Around that time, I had a discussion with my mother Jane Wood about the planned Bali holiday and I asked what would happen about the cancelled tickets for my father. I recall my mother telling me in strict confidence, that Dr Skehan (who we always referred to as 'Michael') was going to falsify a medical certificate for my father, inaccurately stating that he had become too ill to fly, so that a refund could be obtained on his holiday costs from the travel insurer. My mother urged me not to tell anyone as Dr Skehan 'could lose his job' over it.[160]

1. Sarah said that she did not mention her mother's proposal to anyone at the time as she was 'preoccupied' with the family business problems. Nor was she aware whether any medical certificate was prepared or whether a refund was obtained from the travel insurer. Sarah said that it was only when her father asked her if she knew anything about the medical certificate that she realised what her mother had said was something that would be relevant to the investigations being conducted by the Board.[161] It was agreed between the parties that Sarah first mentioned this conversation in July 2009.[162]
2. Sarah supported this account in her evidence. She said that she understood at the time she had the conversation with her mother, she (the mother) was proposing to gain a financial benefit by fraud. Sarah said she was shocked by what her mother had told her. But she did not tell her father at the time because she was so busy with work.[163] She remembered that her mother said, 'Michael's going to forge a medical certificate', and was sure they were the words used.[164]
3. Before the Board raised this allegation, as we have noted, Ms Wood provided a draft statement around January 2009 in which she made various observations about relevant matters.[165] Particularly, in reference to the Bali holiday, she said 'John and Sarah stayed home because they were working.'[166]
4. In evidence, Ms Wood provided a significantly different account as to why her husband remained behind in Melbourne. She said that up until 17 March, he was going on the holiday, but in the week before departure he had been complaining about having an earache.[167] On the Saturday evening, after her son and the others had left for Bali, she and her husband were going out for dinner with Dr Skehan. When Dr Skehan came to their home, her husband was whinging about his ears, so she suggested to the doctor that he check them out because she thought Mr Wood was lying to get out of going to Bali.[168] Dr Skehan went out to his car to get his medical bag. He returned and examined Mr Wood in the kitchen. Ms Wood specifically remembered that she went to the bathroom when her husband was examined. When she returned, she heard Dr Skehan saying that Mr Wood's ears were red. Mr Wood replied, 'Well, see I told you I can't fly.'[169]
5. Then they all went out for dinner, which Ms Wood remembered was at an Indian restaurant at the Docklands. She even recalled that she had had 'a liquidy thing' which was watery when she was hoping for a curried chicken. She hated it and it made her feel sick.[170]
6. Ms Wood did not hear Dr Skehan say anything to her husband about any treatment that might help to relieve the symptoms.[171] Nor at that time did she know anything about the medical certificate. Then she said she did recall the certificate because she filled out a form '... because apparently I put a claim into the airlines or something like that.'[172] But, in the result, she did not do anything about it. She denied telling her daughter that Dr Skehan was going to forge the medical certificate to get a refund on the airline ticket and not to tell anyone because he might lose his job.[173] She said that the flights to Bali were cheap and worked out at about $200 for each person and that she would not make a fraudulent claim for something like $200 or $250.[174] In fact, she had never made a claim on travel insurance in relation to the fares.
7. Ms Wood agreed that she had received the certificate from Dr Skehan, although she was unable to say when that happened.[175] She said that the certificate was created because her husband was unable to fly. It was not correct to say that he had already decided to stay behind because of the work demands. In that regard, she had employed her brother-in-law to assist in the business.[176]
8. Ms Wood was asked to explain why she said in her adopted draft statement that her husband and daughter 'stayed home because they were working'. She said that her statement was meant to read instead that because Mr Wood could not go due to the ear infection, then he worked. She said she was unable to explain why she said nothing about the ear infection in her statement.[177] She reaffirmed that when she sent the statement, as amended, it was the truth.[178] However, she said there were difficulties with making her statement in that she was tired and over-worked and sometimes made mistakes.
9. However, Ms Wood agreed she had added a handwritten addendum as a supplement to her comment about Mr Wood and Sarah staying home because they were working. This read as follows:

Hannah, mum, [Hannah's husband], Matthew, [Hannah's children] all left together. John and I were also booked to leave at the same time, but we had been re-located by the shopping centre, that we trade in and opening off [sic] our new store was to be around the time when [we] were going away: (the holiday was booked in June 2006) well before we knew we were going to move into our new store:

.......So, I left on the Thursday as promised. Dr Skehan left on the Saturday. ... John didn't come after pleading with him to come because he wanted to see the renovation through.[179]

Ms Wood claimed this passage meant that her husband had an earache, but he also wanted to see the renovations through. He could not fly, so he was going to stay home and work and, well before they were departing, she was pleading with him to come on the holiday, and the ear infection came along afterwards. She maintained that all along her husband was going on the trip and that this passage related to events well before the departure date.[180]

1. When asked the purpose for obtaining the certificate, Ms Wood said she had asked Dr Skehan for the certificate just in case they needed one for travel insurance, although she was not even sure whether they had insurance as she had not organised the trip. That was done by her sister.[181]
2. Ms Wood denied that she had asked Dr Skehan to forge the certificate. She would not do that for a mere $200 to $250. She knew that would be fraudulent. She was not desperate for money; in fact she had paid for her mother's accommodation in Bali.[182]
3. On 24 April 2010, at the request of the Board, Dr Skehan responded to this allegation. He said:

My records state that Mr Wood had an ear ache. I believe the consultation would have occurred at Mr Wood home as around that time we were in the habit of going out on most Saturday nights. The certificate was computer generated and would have been prepared at my surgery (probably the next day). The Certificate would have been written for 17 March 2007 as that was the day I attended him. I did not render an account. I definitely saw Mr Wood on that day as is reflected in my clinical records.[183]

1. In evidence, Dr Skehan gave an absolute assurance that the consultation and examination had occurred on 17 March. It happened in the evening, he said, before he went out to dinner with Mr Wood and his wife, although it might have been after dinner.[184] Then the respondent said he did not actually remember the consultation and he could not say when he had made the entry in his notes.[185] He said that he had never falsified a certificate and would not do such a thing.
2. Dr Skehan said he always had his medical bag in his car. If he were conducting a home visit, his normal practice would be, if necessary, to make a note and then transfer the information to the computer the following day. He would then backdate the date of the consultation to reflect the reality. However, the time recorded of 8.44 am does not accord with the date of 17 March if this practice was adhered to.
3. In cross-examination, Dr Skehan said that although he made a note, 'Booked to fly today', he could not say what time on Saturday 17 March Mr Wood was departing.[186] He reiterated that he had no actual recollection of the consultation, and that the notes did not tell him that the consultation was a home visit. Nor did he have an actual recollection of looking into Mr Wood's ear and being able to confirm that the right eardrum was red but the left was not, and no recollection of being asked for the certificate.[187] He agreed that he had not charged for the consultation but this was not because it had not occurred, he said he did not charge for quite a few consultations.[188] There was no record of any treatment or antibiotics being prescribed but he believed he would have provided advice to take Panadol to ease the symptoms.[189]
4. Dr Skehan was then referred to the medical certificate. He said he was sure that it was completed on the date it bore, 17 March 2007, although it said that Mr Wood was receiving medical treatment. That would have consisted of taking Panadol. He was unable to say how he could have predicted how long the condition would last. He said he endorsed the certificate in the way that he did because if Mr Wood had an ear infection, he would have been unable to fly for a couple of weeks.
5. The respondent denied that he wrote the certificate in the way that he did so that an insurance claim could be made, as in terms it specified that Mr Wood was not going to be fit to travel at any time that he might reasonably have flown on the ticket.[190] He said that he issued the certificate because it had been requested but he did not know why the request was made. He was aware that Mr Wood had a ticket to Bali. Although he rejected the notion that the certificate might be used for the purpose of making an insurance claim, he was unable to say and did not know why it was necessary in this case.[191]
6. Dr Skehan rejected the suggestion that there was no ear infection and no examination.[192] He rejected the suggestion that the reason he did not charge a fee on this occasion was because Mr Wood was not present to sign a Medicare claim form.[193]
7. Dr Skehan agreed that Mr Wood was a self-employed person so the certificate was not going to be used for an employee/employer purpose. He said that he presumed its only purpose would be in relation to some sort of claim on travel insurance because it referred to Mr Wood being unfit to travel, and he presumed that he knew this at the time.[194] He claimed he did not know to whom it was provided.

1. We are satisfied to the requisite standard that on 17 March 2007 Mr Wood did not have an ear infection, and that he did not consult with and was not examined by Dr Skehan. We accept Mr Wood's evidence on this matter.
2. Moreover, the entry in the medical notes and the certificate were falsely created by Dr Skehan, inferentially, at the request of Ms Wood who was contemplating making an insurance claim for the recovery of the cost of Mr Wood's tickets to and from Bali. However, it is not part of the applicant's case that Dr Skehan was necessarily privy to all the facts surrounding Ms Wood's motivation in this regard.[195] But, in our opinion, an intelligent person like Dr Skehan would not be so naive as not to question why the request for the certificate was being made by Ms Wood.
3. We are wholly unpersuaded by Ms Wood's account of this matter. It was clear when she provided her draft statement to the solicitors for the Board that she explained her husband's inability to take the holiday because of the work demands. Indeed, she made plain that she had pleaded with him to come to Bali, but he resisted so that he might assist their daughter in the difficult task she faced. Significantly, not a word was said about the alleged ear infection, or indeed, the suggestion that her brother-in-law had been enlisted to perform the work, which would have freed up Mr Wood for the holiday. Ms Wood's statement is consistent in all material respects with Mr Wood's account as to why he did not go to Bali.
4. Ms Wood's efforts to explain the contents of her statement were quite absurd. It is to be recalled that her statement was provided well before the fourth allegation arose and at a time when she was not on guard as to this issue. For someone who could not remember the hotel she stayed at in Sydney at the trade fairs in 2006 and 2007, or indeed even the general area of the city in which she stayed, she had a remarkable memory of going to the toilet whilst the examination took place, and of them all going for dinner to an Indian restaurant in Docklands where she consumed a watery dish when she preferred a chicken curry.
5. Dr Skehan's account was not much better. He claimed that Mr Wood was due to travel on the Saturday. As submitted by the applicant, an examination of Ms Wood's telephone records for 17 March 2007 suggest that her phone was at or near Melbourne airport between about 3.48 pm and a little after 5 pm that day.[196] This clearly supports the fact that Matthew and the other members of the extended family left for Bali that day. This was undisputed. Ms Wood had changed her flight to the following Tuesday, 20 March. If Mr Wood was to go at all, it was highly likely that he would depart with his wife on the later date, subject to the pressing work problems. But neither of them was travelling that day. We agree with the applicant's submission that the notion that Mr Wood left his decision to go or not to go until some time on 17 March is fanciful. Moreover, the suggestion in the notes that Mr Wood was 'booked to fly today' and in the certificate that he 'will be unfit to travel' both imply, as submitted by the applicant, that the consultation occurred before any decision had been made by Mr Wood whether to fly or not, and that he had been intending to travel on the Saturday right up until the consultation took place. Given that the alleged consultation was after the others had departed and it was obvious Mr Wood was not flying that evening, the appropriate wording would have been something like 'booked to fly next Tuesday', if Dr Skehan and Ms Wood were telling the truth.
6. Dr Skehan was also quite unconvincing as to the so-called 'treatment' required for the infection. On his own account, that consisted solely of taking a mild analgesic. On the alleged presenting problem, as recorded in the notes, there was simply no proper basis to conclude that, even were Mr Wood to have had some sort of ear infection that it would last for two weeks. The statement in the certificate that there would be 'treatment' required for two weeks would appear to have been fashioned to cover the whole period of time that Mr Wood was going to spend in Bali, and to block any suggestion, by an insurer or anyone else, that he could have departed at a later date during that period.
7. Clearly, the production of the medical certificate had one purpose, it could only have related to a prospective insurance claim. There was no other reason for its production. Certainly it was not created so that it might be provided to an employer. This must have been clear to Dr Skehan. He was not acting in a vacuum.
8. The failure to charge a fee is suspicious, because Mr Wood had to be present to sign the Medicare claim form for the doctor to receive the fee, however there are other instances where Dr Skehan has not charged Mr Wood a fee and we would not reach an adverse conclusion based on this fact alone.[197]
9. The respondent submitted that the effect of the fourth allegation was to suggest Dr Skehan was in a conspiracy with Ms Wood to assist her to recover an airfare of a few hundred dollars when she was involved in a very successful business and able to take expensive overseas trips. The short answer to that contention is that people act dishonestly in unexpected circumstances and may contemplate making a dishonest claim for monies, particularly from insurance companies, even though the amount is modest and they may not need the money. The conclusion as to this allegation cannot depend on the quantum of any prospective claim. Moreover, as submitted by the applicant, it might reasonably be assumed that Ms Wood and Dr Skehan considered that, in the circumstances prevailing in March 2007, "... there was no prospect that anyone would ever question the authenticity of the certificate or the integrity of [Dr Skehan]."
10. As has been acknowledged by the respondent, the allegation is a grave one and the evidence must be carefully and rigorously scrutinised. We have done that with the evidence, particularly in the context of the good character evidence concerning Dr Skehan. However, we are satisfied the evidence is 'clear, cogent and exact', to borrow from one of the cases relied upon by the respondent, and that it points adversely to Dr Skehan.
11. There was no evidence before the Tribunal that any travel insurance claim form was ever made.[198] Accordingly, it could not be concluded there was any offence by any person of obtaining property or a financial advantage by deception, or any attempted offence of that kind. We conclude, however, that Dr Skehan acted dishonestly in this situation in a grave way. We consider his conduct reflects his susceptibility to Ms Wood's influence. The false record he made and certificate he provided were the result of a process initiated by Ms Wood and clearly responsive to her needs, not his own.
12. Having reached these conclusions, we are unprepared to act on Sarah's suggestion that her mother told her that she and Dr Skehan planned the false consultation and the forgery of the certificate. As we have already noted, the resentment and bitterness felt by the daughter for her mother, and the aggression she holds and showed towards her, are reasons alone for hesitating before accepting her evidence on such an important point. Had such an admission been made by Ms Wood, it is inconceivable that her daughter would not have reported that immediately to her father, or that being 'preoccupied' with work was a likely reason why she would fail to do so. Indeed, when Sarah was called upon to respond to the Board's first two allegations, it would have been an opportune time in which to volunteer such evidence, as this incident alone points dramatically to the inappropriate nature of the relationship between Dr Skehan and his patient.
13. We are satisfied to the requisite standard that on or about 17 March 2007; Dr Skehan dishonestly created clinical notes for a consultation with, and produced a medical certificate for, his patient John Wood, in circumstances where no consultation and/or examination by him of Mr Wood had actually occurred.

1. As agreed with the parties, orders as to disposition shall follow the adduction of any further evidence and submissions as to the issue of penalty, to be made in either written or oral form at a date to be fixed. The Tribunal will also receive submissions as to how Dr Skehan's particular conduct should be characterised under the MP Act and/or the HPR Act.

Since in or around 1998, Dr Michael Skehan (Dr Skehan) has transgressed professional boundaries by engaging in an inappropriate personal and/or emotional relationship with his patient, Ms Jane Wood (Ms Wood) and, to a more limited extent, with Ms Wood's immediate and extended family members, most of whom are, or were, also patients of Dr Skehan in and to the extent that his conduct involved:

(a) the exploitation of his relationships with Ms Wood and/or members of her family in pursuit of his own sexual desires and/or emotional needs and/or financial advantage; and/or

(b) the formation, or an appreciable risk of the formation, of an inappropriate emotional attachment and/or sexual relationship between himself and Ms Wood; and/or

(c) the perception, or an appreciable risk of the perception amongst members of Ms Wood's family, of the formation of an inappropriate emotional attachment and/or sexual relationship between himself and Ms Wood.

(a) During this period, on various occasions, Dr Skehan went out to dinner with Ms Wood and her husband, Mr Wood; and/or

(b) During this period, Dr Skehan accepted an invitation to obtain a mobile phone as part of Ms Wood's business mobile phone plan; and/or

(ba) During this period, from at least 15 October 2003, had frequent telephone contact with Ms Wood; and/or

(c) In or around 1998, Dr Skehan and members of his immediate family went on a holiday to Port Douglas with Ms Wood and her immediate family; and/or

(d) Between in or around 1999 and 2001, Dr Skehan and members of his immediate family went on holiday to the Grampians with Ms Wood and her immediate family; and/or

(e) In or around February 2007, Ms Wood changed the mailing address for her business mobile phone bills to Dr Skehan's home address; and/or

(ea) Between 25 February 2007 and 27 February 2007, met with and associated with Ms Wood in Sydney and on the flight back to Melbourne by prior arrangement with Ms Wood; and/or

(f) In or around March and April 2007, Dr Skehan and his two daughters went to Bali to holiday with Ms Wood and the following members of her family:

(iii) her sister, Hannah and her two children; and/or

(g) In or around early 2008, Dr Skehan and his two daughters went on a holiday to Thailand with Ms Wood and her son, Matthew; and/or

(h) From in or around February 2008, following Ms Wood's separation from Mr Wood, on numerous occasions, Dr Skehan has gone out to dinner with Ms Wood, including with her son and with other friends.

In so far as Dr Skehan's conduct occurred in the period between 1998 and 30 June 2007, Dr Skehan engaged in unprofessional conduct within the meaning of paragraph (a) and/or (b) and/or (c) of the definition of 'unprofessional conduct' in section 3(1) of the MP Act.

In so far as Dr Skehan's conduct occurred on or after 1 July 2007, Dr Skehan engaged in unprofessional conduct within the meaning of paragraph (a) of the definition of 'unprofessional conduct' in section 3(1) of the HPR Act or professional misconduct as defined in paragraph (b) of the definition of 'professional misconduct' in section 3(1) of the HPR Act.

Since in or around January or February 2008, Dr Skehan has engaged in unprofessional conduct within the meaning of paragraph (a) of the definition of 'unprofessional conduct' in section 3(1) of the HPR Act or professional misconduct within the meaning of paragraph (b) of the definition of 'professional misconduct' in section 3(1) of the HPR Act, in that he has engaged in an inappropriate sexual relationship with his patient and/or former patient Ms Wood, which included betraying the trust of Ms Wood's husband, Mr Wood, who is also one of Dr Skehan's former patients (from whom Ms Wood is now divorced).

Between in or around March 1997 and in or around November 2007, Dr Skehan failed to exercise the skill and care of a reasonably competent medical practitioner in relation to his clinical management of his patient and/or former patient, Mr Wood.

(a) In or around 1997 and/or May 2002 and/or December 2004, Dr Skehan did not adequately report test results to Mr Wood and/or did not explain to Mr Wood the significance of test results in relation to Mr Wood's prostate-specific antigen levels; and/or

(b) Between in or around March 1997 and in or around November 2007, Dr Skehan did not conduct a digital rectal examination of Mr Wood and/or undertake further investigation into Mr Wood's elevated prostate-specific antigen levels and/or reported rectal bleeding; and/or

(c) Between in or around March 1997 and in or around November 2007, Dr Skehan did not provide Mr Wood with a referral to a specialist in relation to his elevated prostate-specific antigen levels and/or reported rectal bleeding.

In so far as Dr Skehan's conduct occurred in the period between March 1997 and 30 June 2007, Dr Skehan engaged in unprofessional conduct within the meaning of paragraph (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 so far as Dr Skehan's conduct occurred in the period on or after 1 July 2007, Dr Skehan engaged in unprofessional conduct within the meaning of paragraph (a) and/or (b) of the definition 'unprofessional conduct' in section 3(1) of the HPR Act or professional misconduct within the meaning of paragraph (a) and/or (b) of the definition of 'professional misconduct' in section 3(1) of the HPR Act.

On or about 17 March 2007, Dr Skehan engaged in unprofessional conduct within the meaning of paragraph (a) and/or (b) and/or (c) of the definition of 'unprofessional conduct' in section 3(1) of the MP Act in that he created clinical notes of a consultation and/or produced a medical certificate in relation to his patient, Mr Wood, in circumstances where no consultation and/or examination by Dr Skehan of Mr Wood relating to that date had actually occurred.

Jane Wood's medical consultations with Dr Skehan 1988-2007 [199]

John Wood's medical consultations with Dr Skehan 1986-2007 [200]

Combined total for each week either side of the Sydney visit in 2006

*Only start and end times of contact and total duration available for Jane Wood on these days.

Combined total for each week either side of the Sydney visit in 2007

[1] Formerly, the Medical Board of Victoria.

[2] The referral was made pursuant to s.59(2)(g) of the Health Professions Registration Act 2005.

[3] The parties are agreed that the meaning of each expression is the same under either legislation.

[5] Section 52(2) and (3), MP Act and section 77(4), HPR Act.

[6] Both submissions were dated 1 December 2010 (applicant - exhibit W, respondent - exhibit 3).

[7] Ms Wood's mother made no statement and did not give evidence.

[8] At the same time, the failure of these witnesses, and also the Wood's housekeeper and neighbours to see any signs of improper behaviour between Ms Wood and Dr Skehan is of little or no weight as the couple could be expected to have hidden their inappropriate relationship from bystanders.

[10] R v Rowton [1865] EngR 53; (1865) 169 ER 1497; Melbourne v R (1999) 198 CLR 1; Attwood v R [1960] HCA 15; (1960) 102 CLR 353; and R v Murphy [1985] 4 NSWLR 42.

[11] Exhibit R - Dr Skehan said he presumed that the form had been filled in by Ms Wood.

[15] One of those recorded consultations, on 17 March 2007, is very much in dispute and concerns the fourth allegation.

[17] Dr Skehan referred Ms Wood to the counsellor (he had received counselling from the same psychologist concerning his own marriage in 2005). The counselling notes are at TB 967A.

[24] TB 657. These principles were reaffirmed by the AMA Code of Ethics promulgated in 2004 (revised 2006), TB 659.

[27] [1995] 2 Qd R 154, 163.

[28] The case concerned a medical practitioner who maintained a sexual relationship with his patient.

[29] Supreme Court of Victoria, unreported, 21 June 1985.

[32] Bar-Mordecai v Hillston [2004] NSWCA 65, [12], per the Court (Mason P, Tobias JA and Davies AJA).

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

[34] [1981] VicRp 88; [1981] VR 953, 969, citing Briginshaw. See also: Anderson v Blashki [1993] VicRp 60; [1993] 2 VR 89, 95-96, per Gobbo J.

[35] Summary of interview with Mr Wood dated 27 March 2008, TB 19.

[39] T 619-625. The 2006 visit had not been specified under the first allegation at the outset of the hearing, although a similar visit the following year had been specified in the amended particulars.

[41] Exhibit S (mobile number ending 068 for Ms Wood and 069 for Dr Skehan).

[42] Exhibit N for Ms Wood's mobile from 28 June 2005 to 1 January 2010, and exhibit O for Dr Skehan's mobile from 15 October 2003 to 1 January 2010.

[43] No doubt there was further significant text messaging, as there were no records of texts sent by Ms Wood between January 2006 and September 2007, or of texts sent by Dr Skehan between January 2006 and October 2007.

[44] A 'prank' call occurs when the caller phones the other party but hangs up before the call is answered. Presumably, the other party sees the caller ID and knows who to call back.

[49] The records suggest that Ms Wood's flights were booked on 2 February 2007 and Dr Skehan's on 6 February. No evidence was led from the airline as to the date of the bookings or who made them although Ms Wood's sister, Hannah, said she booked Ms Wood's flights in 2007.

[51] Senior counsel for the applicant explained that he only became aware of the possibility of the February 2006 visit on the morning of 22 November, having examined relevant phone records that day. Subsequently the applicant obtained the reservation records for that visit, which were tendered on 25 November (Exhibit P).

1. [63] For instance, on that Wednesday Ms Wood made three calls and sent two texts to Dr Skehan between 7.25 am and 8.33 am. Dr Skehan made six calls and sent one text to Ms Wood between 8.16 am and 6.20 pm that day. Four of those calls involved discussions longer than 5 minutes.

[64] For instance, between 7.28 am and 8.39 am on that day, Ms Wood contacted Dr Skehan on five occasions, including two conversations in excess of 5 minutes. She again contacted him twice at around 5 pm that afternoon. Dr Skehan contacted Ms Wood at 8.11 am that day for a 5minute conversation, and then twice in the afternoon.

[66] We note that Dr Skehan had no difficulty recalling the name of his accommodation, 'Villa Jodie', at Seminyak, when he went on holiday to Bali in March 2008 (T 1092), and he recalled staying in a chain hotel in Phuket, Thailand in March 2008.

[67] See generally, T 623-632, 1067-1070.

[68] [2010] VSCA 340 (Buchanan, Ashley and Weinberg JJA), citing with approval a passage from the judgment of Isaacs and Rich JJ in Gould v Mount Oxide Mines Ltd [1916] HCA 81; (1916) 22 CLR 490, 517.

[70] Sections 97 and 98, Victorian Civil and Administrative Tribunal Act 1998.

[71] There was no objection by the respondent to the tender of the 2006 airline records (Exhibit P), at which time it was made clear they went not only to Ms Wood's credit but also generally to facts in issue in that they supported the applicant's contention that there was an improper relationship between the couple in February 2006 (T 783-784).

[73] A photo of the message on Sarah's phone was tendered but is not possible to determine the identity of the sender from this material (TB 966 - 967).

[74] Sarah statement 22 June 2009, TB 323.

[82] T 655-656. The existence of any such song was never revealed at the hearing.

[95] The first transcript was Exhibit DG-2 in Sarah's statement dated 22 June 2009 (TB 331), and the second, Exhibit Q. Certain extracts were provided by the respondent (TB 347A, 351A and 352A).

[102] T 476, she noted this in her file (TB 601).

[107] John Wood statement dated 19 May 2009, TB 89.

[108] Ms Wood said Dr Skehan might not have paid for his phone for up to two years (T 867, 879).

[109] The assertion that Ms Wood, and, impliedly, Dr Skehan, were trying to hide an inappropriate emotional relationship had been made by Hannah (TB 376).

[112] Sarah's statement, 22 June 2009, TB 321.

[116] Counsel for the respondent made clear his evidence was not contentious (T 881).

[118] Statement 11 November 2009, TB 709-710.

[120] It may well be that Dr Skehan confined himself to his computer-generated progress notes, which commence on 24 November 2000; however, rectal bleeding was referred to in his handwritten notes: see TB 75.

[160] Statement dated 20 April 2010, TB 701.

[161] Statement dated 4 January 2010, TB 719.

[164] This expression was first used by the witness in her statement dated 4 January 2010, TB 719.

[197] For example, no fee was charged for the consultation on 5 March 2006.

[199] Dr Skehan's handwritten notes (TB 514A-514Z) and typed notes (TB 515-531).

[200] Dr Skehan's handwritten notes (TB 75-81) and typed notes (TB 45-50).

[201] Dr Skehan (exhibit O) and Jane Wood (exhibit N).

[202] Dr Skehan (TB 158 - 160) and Jane Wood (TB 147 - 153).

[203] Dr Skehan (exhibit K) and Jane Wood (exhibit K and N)