Professions and Trades - Health care professionals - Medical practitioners - Disciplinary proceedings - Appeals - Adequacy of penalties - Suspension and condition prohibiting practitioner from seeing female patients - Sexual misconduct.

Medical Practitioners Registration Act 1996 (Tas), s61(2)(b).

Craig v Medical Board of South Australia [2001] SASC 169; (2001) 79 SASR 545; Pillai v Messiter (No 2) (1989) 16 NSWLR 197, referred to.

Judgment Number: [2007] TASSC 69

THE MEDICAL COUNCIL OF TASMANIA v ULHAS SRINIWAS LAD

1 This is an appeal from a decision of the Medical Complaints Tribunal ("the Tribunal"), instituted pursuant to the Medical Practitioners Registration Act 1996 ("the Act"), s61(2)(b). On 13 October 2006 the Tribunal found the respondent, a medical practitioner, guilty of professional misconduct in respect of patients whom it referred to as AB and CD. On 27 November 2006, the Tribunal imposed separate penalties in relation to those patients. In relation to the misconduct concerning AB, the Tribunal suspended the respondent from practice until 30 June 2007, imposed a condition limiting his practice to consultations with male patients after that date, imposed a further condition requiring him to provide the appellant with a written authority for it to access his Medicare records in order to ensure compliance with the preceding condition, and ordered him to pay certain costs. The appellant has appealed in respect of the decision to impose those penalties. It contends that they are inadequate penalties in the circumstances, and that the respondent's name should be removed from the Register of Medical Practitioners. There is no challenge to the order for costs. The appeal does not relate to the misconduct concerning CD, which resulted in a fine.

2 The respondent is a general practitioner. Since 1987 he and his wife, another general practitioner, have practised together at Blackmans Bay. AB was a patient of his from April 2003 until July 2004.

3 In relation to AB, the Tribunal found the respondent guilty of professional misconduct in relation to conduct that can be summarised as follows:

• He required AB to fully disrobe, in particular for the purpose only of establishing her weight, when it was not necessary or appropriate that she disrobe, either fully or at all.

• On occasions when he required her to disrobe, she was required to dress and undress in his presence, in his view, and without any screening or cover. On occasions she was also required to get onto and down from an examination table while naked, in full view of him.

• He sexually assaulted AB by fondling her breasts and buttocks, and cuddling her.

• He improperly and unnecessarily required her to lie naked on her side or stomach on an examination table while he separated her buttocks, exposing her anus, saying that he "needed to have a look".

• He conducted improper and unnecessary examinations of AB, requiring her to bend over whilst fully naked and spread her buttocks so as to expose her anus, saying that he "needed to have a look".

• He told AB that he fantasised about her showering, and told her that he would pay to watch her shower.

• He improperly and unnecessarily examined, or attempted to examine, AB's genitalia, by pulling down the front of her pants, saying that he "just needed to have a look".

• On or about 10 June 2004, during an after-hours consultation with AB at his surgery when she required an injection of Pethidine, he exposed his erect penis, tried to place AB's hand on it, tried to get her to masturbate him, and then, in her presence, masturbated himself and ejaculated into a hand towel.

4 In deciding what orders to make in relation to the complaint concerning AB, the Tribunal took into account misconduct by the respondent towards three other patients whom it referred to as YZ1, YZ2 and YZ3. They had been called at the hearing to give similar fact evidence for the purpose of proving that the misconduct described by AB had occurred. The Tribunal accepted the evidence of those three witnesses. The misconduct of the respondent, as described in their evidence, can be summarised as follows:

• YZ2 consulted the respondent in 1991 when she was in her mid-20s. She asked him to check some moles that she had. He required her to take off all her clothes. She was not offered the use of a screen. After she had undressed, the respondent stood behind her, and got her to bend over and pull her buttocks apart.

• YZ3 and her family were patients of the respondent from 1988 until about October 1994. In or about that month, she took two of her children to see the respondent. After they had seen him, he suggested that they go to the waiting room while he saw YZ3 by herself. He said he should give her a general check, and that he would check her breasts and her weight. He told her to take all her clothes off. She undressed without a screen. She stood on some scales to be weighed. As she stepped off, the respondent pushed her against the wall, pressed his body against hers, attempted to kiss her, grabbed one of her breasts with one hand, grabbed her left hand with his other hand, and placed her left hand on his penis, which was erect. She rebuked him, and he let her go. She dressed, departed and never returned.

• YZ1 saw the respondent on about four occasions in late 2002 and early 2003. She was 20 years old. He unnecessarily asked her questions as to whether she was sexually active, whether she had ever had oral sex, and whether she had ever had sexual encounters with women. At least twice, for no apparent reason, he insisted on weighing her, and asked her to take all her clothes off, but she did not do so. On her last visit, although she did not have any very obvious moles and was not concerned about moles, the respondent asked her to undress so that he could look at her moles. He got her to take off all her clothes. He went behind her, put his hands on her buttocks, pulled them apart abruptly and without warning, and held them apart for a couple of seconds.

5 The Tribunal also had before it the evidence of CD, which it accepted, as to misconduct by the respondent towards her. She saw the respondent only once, in March 2004, when she wanted to obtain antibiotics to treat a chest infection. The evidence accepted by the Tribunal can be summarised as follows. The respondent twice asked her to take off all her clothes, but she refused to do so. He pulled down the top of her dress and her bra, and commented on her moles. He asked her to let him examine her tummy. She lay on her back and lifted her dress above her waist for that purpose. He examined her abdomen, and then asked her to roll over so that he could check her back. She turned onto her stomach, with her dress still lifted above the waist, whereupon the respondent said, "Oh you are very hairy."

6 Counsel for the respondent provided the Tribunal with an enormous quantity of references, emails and letters establishing that the respondent was generally of excellent character, and was highly regarded professionally and in the community.

7 The Tribunal also took into account the following factors:

• A shortage of general practitioners in Tasmania.

• The impact of the respondent's suspension on his patients, and on his practice.

• The fact that the respondent had been prohibited from seeing female patients since June 2006. (Apparently the appellant imposed that condition upon his registration as a medical practitioner while the Tribunal proceedings were pending.)

8 The principal contentions of the appellant, as reflected in the grounds of appeal, can be summarised as follows:

• That the misconduct towards AB was so serious that the only appropriate penalty was removal from the Register of Medical Practitioners.

• That suspension was an inadequate penalty for the misconduct towards AB.

• That the Tribunal, having found that the misconduct towards AB "was prolonged and opportunistic and was further an abuse of a highly susceptible and vulnerable person", did not give adequate weight to those findings.

• That the Tribunal did not give adequate weight to its findings concerning YZ1, YZ2 and YZ3.

• That the Tribunal gave undue weight to the support for the respondent professionally and in the community, and the fact that he was well regarded as a contributing member of the community, and should not have taken those matters into account at all.

• That the penalties did not adequately protect the public.

• That the penalties did not secure the maintenance of proper professional standards.

• That the Tribunal gave undue weight to the fact that the respondent had been prohibited from seeing female patients since June 2006, and should not have taken that fact into account at all.

• That, in determining the duration of the period of the respondent's suspension, the Tribunal erred in taking into account the fact that it would be prohibiting him from seeing female patients after his return to practice, and should not have taken that matter into account at all.

• That the Tribunal gave undue weight to the shortage of general practitioners, and should not have taken that matter into account at all.

9 The respondent contends that the penalties imposed by the Tribunal were not inadequate; that no error has been demonstrated in relation to the exercise of the Tribunal's discretion; and that its decision, as the decision of a specialist tribunal, should be respected.

Penalties in professional disciplinary proceedings

10 It is common ground that the conduct towards AB that the Tribunal found proven amounted to professional misconduct. Under the Act, s52(1), the penalties that the Tribunal can impose consist of an order that a practitioner's name be removed from the Register; suspension of registration, totally or partially, for a period not exceeding 12 months; a fine not exceeding $5,000; the imposition of a condition on a practitioner's registration; an order requiring a practitioner to take, or refrain from taking, specified action; a caution; or a reprimand.

11 There is a substantial body of case law concerning the nature and purpose of disciplinary proceedings in relation to various professions, including the medical and legal professions. It is well established that the purpose of such proceedings is the protection of the public, rather than punishment for wrongdoing. In Craig v Medical Board of South Australia [2001] SASC 169; (2001) 79 SASR 545 at 553 - 554, Doyle CJ, with whom Williams and Martin JJ agreed, said:

"41 The purpose of disciplinary proceedings is to protect the public, not to punish a practitioner in the sense in which punishment is administered pursuant to the criminal law. A disciplinary tribunal protects the public by making orders which will prevent persons who are unfit to practise from practising, or by making orders which will secure the maintenance of proper professional standards. A disciplinary tribunal will also consider the protection of the public, and of the relevant profession, by making orders which will assure the public that appropriate standards are being maintained within the relevant profession.

...

43 ... sometimes the protection of the public will require the making of an order with a greater adverse effect on the practitioner than might be warranted if punishment alone were the relevant consideration."

12 In Pillai v Messiter (No 2) (1989) 16 NSWLR 197 at 201, Kirby P (as he then was), referring to New South Wales legislation, said the following:

"In giving meaning to the phrase 'misconduct in a professional respect' in the context within which it appears, it must be kept in mind that the consequence of an affirmative finding is drastic for the practitioner. And the purpose of providing such a drastic consequence is not punishment of the practitioner as such but protection of the public. The public needs to be protected from delinquents and wrong-doers within professions. It also needs to be protected from seriously incompetent professional people who are ignorant of basic rules or indifferent as to rudimentary professional requirements. Such people should be removed from the register or from the relevant roll of practitioners, at least until they can demonstrate that their disqualifying imperfections have been removed."

13 In Dickens v Law Society unreported 42/1981, Cosgrove J said the following at 15 - 16:

"There is high authority for the proposition that the powers given to the Disciplinary Committee to discipline a practitioner are entirely protective in character and no element of punishment is involved. ... But to say that is merely to say that the powers are to be exercised for the purpose of, and in a manner seen to be likely to achieve, the maintenance of that high standard of conduct within the profession which will continue its good reputation, and so protect, not only the future of the profession, but also protect its clients from harm. With this object in mind, the Committee is required to look to the future. Even if the practitioner's misconduct be relatively slight, he may yet be struck off, if his capacities and attitude have been revealed to be such that his continuance in practice constitutes a threat to the profession. On the other hand, conduct which is itself more grave in nature, may not warrant striking off, if it is seen as a temporary and explicable departure from the practitioner's own high standards. The Committee's task is to uphold the dignity and standards of the profession. To enable them to do so, they have been given powers to fine, to order payment of costs, to suspend, and to strike off. The exercise of any of these powers inevitably involves a deprivation of one kind or another to the practitioner. But the deprivation is merely part of the exercise of the discipline of the profession. There is in it no retributive element, no intention to express outrage, as there sometimes is in sentences for crime. The order which the Committee is called upon to make is that order which, in its opinion, is necessary, and no more than is necessary, to maintain professional discipline and high standards of conduct. It is not entirely incorrect to describe such an order as punishment, and that term is often used. ... But it is punishment of a special kind, for a special purpose."

14 Although the authorities contain references to the need to protect the various professions, it is not an objective of professional disciplinary legislation to confer a benefit on any profession. By protecting the reputation of the medical profession, a disciplinary tribunal will promote and maintain public trust and confidence in the profession. Members of the public should not be hesitant about seeking medical treatment when they might need it, fully disclosing their symptoms, and submitting to physical examinations. Otherwise medical problems will sometimes not receive timely and appropriate treatment. Thus it is in the public interest for the public to have full trust and confidence in the medical profession, and to have a medical profession that deserves the full trust and confidence of the public.

15 Under the Act, s61(2)(b), the appellant may appeal against a decision of the Tribunal imposing penalties on a practitioner under s52(1) if it "considers that the action to be taken pursuant to the decision is an inadequate penalty in the circumstances". That provision speaks of the appellant's opinion of the penalty, not to the Court's opinion of the penalty. Under s62, the Court has an unfettered discretion to affirm, vary or quash the decision of the Tribunal. Under s62(2), if the Court quashes the decision, it may substitute its own decision or remit the matter to the Tribunal. Under s62(3), the Court may make any further order that it considers just in the circumstances.

16 As the appeal is one from a discretionary decision of a statutory tribunal, it should be determined in accordance with the principles stated in House v The King [1936] HCA 40; (1936) 55 CLR 499 at 504 - 505 in the following passage:

"The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred."

17 Pursuant to the Act, s50, the Tribunal consisted of a senior legal practitioner, three medical practitioners, and a lay member. It was a specialist tribunal, well qualified to evaluate the seriousness of particular acts of misconduct and to determine what penalties were appropriate to secure or promote the protection of the public and, for that purpose, the maintenance of the standards of the medical profession. I think I should take the nature of the tribunal into account when considering whether its orders were "unreasonable or plainly unjust".

18 Counsel for the respondent made a submission to the effect that, in considering the grounds of appeal, I should take into account the findings of fact made by the Tribunal, and not go behind those findings to consider evidence that was before the Tribunal but not expressly referred to in its findings. The Tribunal delivered lengthy reasons for its findings of professional misconduct. It gave long summaries of the evidence of the various patients who experienced the respondent's misconduct. Generally speaking, it accepted the evidence of each of those witnesses in preference to the evidence of the respondent. In making its ultimate findings of fact, it gave very short summaries of the essential facts that it found proven. For example, in relation to the after-hours consultation with AB, the Tribunal said, "... we find this matter of complaint made out." The formal allegation in the referral to the Tribunal alleged that the respondent had masturbated himself and ejaculated in AB's presence, and that he had attempted to have AB masturbate him. It did not go into greater detail. For example, it did not specify that the way he attempted to have AB masturbate him was to take her hand and place it on his erect penis. I think that is a fact that I can take into account, since the Tribunal also said that, in general terms, it preferred AB's evidence to that of the respondent. Given the structure of the Tribunal's published reasons, I think it is appropriate for me to take into account all evidence that the Tribunal plainly accepted, including matters of detail that are not specifically referred to in the Tribunal's succinct conclusions.

19 Some cases involving sexual misconduct by medical practitioners are no doubt so serious that the only appropriate orders are orders for deregistration. For example, I would think that cases involving the seduction and sexual exploitation of vulnerable patients by psychiatrists or hypnotherapists would fall into that category. In such a situation, factors that would otherwise have to be taken into account in mitigation of penalty are not able to have any impact.

20 When a case of misconduct is not so serious, and there is room for mitigating factors to be taken into account, it is appropriate for a disciplinary tribunal to take into account such matters as the practitioner's general character, his or her standing in the profession and the community, and the likely impact of penalties on the practitioner's patients and colleagues and the public generally.

21 In the Tribunal's reasons for imposing the penalties that I have referred to, after referring to the misconduct towards AB, YZ1, YZ2 and YZ3, the fact that the respondent was otherwise of excellent character, the fact that there was strong professional and community support for him, and the shortage of general practitioners, the Tribunal concluded that alternatives to deregistration were open, on the basis of its assessment of the level of the seriousness of the misconduct, and of the level of professional and community support for the respondent. In determining the length of his period of suspension, it took into account the fact that the statutory maximum was 12 months; the fact that he had been prohibited from seeing female patients since June 2006; the fact that it would be imposing a similar restriction to take effect upon the expiration of his suspension; and the difficulties created by the shortage of general practitioners upon his patients and his practice generally. There is authority for the proposition that the impact of a suspension on a medical practitioner's patients is not irrelevant, but is of limited weight: Craig v Medical Board (supra) at 557. The Tribunal referred to that case as authority for those propositions.

22 If the respondent's misconduct was not so serious that deregistration was the only appropriate order, then I do not think it can be said that the Tribunal erred in taking into account any of the mitigating factors that I have referred to, nor in the way that it took them into account. The fundamental and critical question in this appeal is whether the respondent's misconduct was so serious that deregistration was the only appropriate order.

23 Counsel for the appellant submitted that I should take into account the respondent's misconduct towards CD, YZ1, YZ2 and YZ3 in determining whether the penalties imposed on him were inadequate. He relied on the Act, Sch 5, cl 12(1), which reads as follows:

"12 (1) In making its decision in a formal inquiry, the Tribunal may take into account any evidence that has been given in the formal inquiry concerning any matter that the Tribunal is satisfied could constitute grounds for a further complaint against the defendant."

24 Counsel for the respondent submitted that this provision went no further than allowing the Tribunal to take into account similar fact evidence when making findings of fact. He argued to the effect that it did not authorise the Tribunal, when imposing penalty in relation to AB, to increase the penalty because of misconduct towards CD, in respect of which it imposed a separate penalty, nor to increase the penalty because of misconduct towards YZ1, YZ2 and YZ3.

25 In criminal law, it is absolutely clear that a sentencing judge must impose a penalty only for the crime of which the offender has been convicted, and must not take uncharged conduct into account so as to increase punishment: The Queen v De Simoni [1981] HCA 31; (1981) 147 CLR 383. If the offender has not offended on any other occasion, that is a mitigating factor that can be taken into account. If the offender has committed crimes on other occasions, and not been charged with them or convicted of them, then that mitigating factor is absent. However I do not think those principles should always be applied in professional disciplinary proceedings, whose focus must be on the protection of the public, rather than retributive punishment of an offender. In determining what order is necessary, and no more severe than necessary, for the protection of the public, a disciplinary tribunal should take into account whether the misconduct in question was an isolated episode and, if not, the nature, extent and duration of other similar misconduct on the part of the practitioner. It is clear from the authorities that I have referred to that deregistration can be appropriate even in a case involving relatively minor misconduct, depending on the level of threat that the practitioner poses. It is not simply a question of whether deregistration is proportionate or disproportionate to the seriousness of the misconduct giving rise to the disciplinary proceedings.

26 It follows that the Tribunal was obliged to take into account the respondent's misconduct towards CD, YZ1, YZ2 and YZ3 for the purpose of determining what penalty or penalties in respect of the misconduct towards AB were appropriate for the purpose of the protection of the public and the maintenance of the standards of the medical profession. It did take into account the respondent's misconduct towards YZ1, YZ2 and YZ3, but the appellant contends that it gave too little weight to the misconduct towards those patients. It dealt separately with the misconduct towards CD, and did not mention her when considering the appropriate penalties for the misconduct towards AB, but I do not think anything turns on that. If, taking into account the misconduct towards YZ1, YZ2 and YZ3, deregistration was not the only adequate penalty for the misconduct towards AB, I do not think the further episode of misconduct towards CD would make any difference.

27 An order for the deregistration of a medical practitioner protects the public in a number of ways. It prevents the practitioner from re-offending. It can deter other practitioners from offending in a similar manner. It also maintains public confidence in the medical profession.

28 In this case, I think the orders made were sufficient to prevent the respondent from re-offending. There can be no more misconduct on his part towards female patients if, for the rest of his life, he has no more female patients.

29 The orders made in this case should also have sent a very powerful message to the rest of the medical profession. The proceedings against the respondent were conducted in public. His identity was not kept secret. There was publicity about him and his misconduct, which led to YZ1, YZ2 and YZ3 coming forward and giving evidence against him. He was suspended for months. For the rest of his career, he will have to maintain arrangements whereby his staff prevent females from making appointments to see him. For the rest of his career, many of his male patients will be aware of the restriction on his practice and, to some degree, of the reasons for it. Those facts should deter any similarly inclined male practitioners from sexual misconduct towards female patients. It is unlikely that deregistration would have the incremental effect of further deterring doctors in general from committing acts of sexual misconduct towards their patients.

30 I think it follows that the penalties imposed by the Tribunal must be considered adequate unless the respondent's misconduct towards AB was so serious that, taking into account his misconduct towards his other patients, the only reasonable course was for him to be deregistered in order to maintain public trust and confidence in the medical profession. That is a point about which minds are likely to differ.

31 The misconduct towards AB took place during a series of consultations over a period of more than a year. It involved unnecessary undressing, indecent examinations of her anus, indecent fondling of her breasts and buttocks, and acts of gross indecency during the after-hours consultation. His conduct was humiliating, degrading and frightening. There was unchallenged evidence that AB had been a victim of sexual abuse as a child, and that the respondent knew that. Over a period of some 13 years, from 1991 to 2004, there were intermittent acts of misconduct on his part in relation to five female patients.

32 However, the respondent did not go so far as to form a sexual relationship with any of the patients in question. None of his misconduct involved any sort of act of penetration. YZ2, YZ3 and CD were each molested by him on only one occasion. Generally speaking, his acts of misconduct seem to have been spontaneous and unplanned. His worst acts of misconduct - his physical encounter with YZ3, and the occasion when he masturbated in front of AB - are of such a nature that they tend to trigger an emotional response on the part of any decision-maker. In determining whether the penalties were inadequate or unreasonable, it is important not to attach undue weight to any natural feelings of disgust in relation to the respondent's conduct.

33 If the Tribunal, bearing in mind its specialist nature, had decided that deregistration was required in order to protect the public from the respondent, provide general deterrence to other medical practitioners, maintain the trust and confidence of the public in the medical profession, and maintain the standard of the medical profession, I expect no one would have regarded such a decision as unreasonable. However, bearing in mind the specialist nature of the Tribunal, I am not persuaded that deregistration was the only reasonable course that the Tribunal could have taken, particularly in the light of the impressive body of evidence as to the respondent's general character. I am not persuaded that the respondent's misconduct towards AB was so serious that, even after taking into account his misconduct towards his other patients, the only reasonable or just course was for him to be deregistered. If other courses were open to the Tribunal, it cannot be said that the Tribunal erred in taking into account factors favourable to the respondent, nor in attributing to such factors the weight that it did. Since the maximum period of suspension under the Act was 12 months, I do not think it can be said that the period of suspension ordered by the Tribunal was unreasonable or plainly unjust. I am not persuaded that any error has been shown in the reasoning of the Tribunal, nor in the way it exercised its discretion. The appeal must therefore be dismissed.