Having previously made findings of "unprofessional conduct" against Dr Didier Luc Marie Grolaux in the terms of the Tribunal's order and reasons dated 15 May 2009, the Tribunal now determines as follows:

1. In respect of the conduct in Allegation 1 of the Notice of Referral that occurred on or prior to 30 June 2007, and pursuant to s 45A(3) of the Medical Practice Act 1994, Dr Grolaux is reprimanded.
2. In respect of the conduct in Allegation 1 of the Notice of Referral that occurred on or after 1 July 2007, and pursuant to s 77(4) of the Health Professions Registration Act 2005:
   • (a) Dr Grolaux is reprimanded; and
   • (b) Dr Grolaux is required to undergo counselling in accordance with Order 4.
3. In respect of the conduct in Allegation 3 of the Notice of Referral, and pursuant to s 77(4) of the Health Professions Registration Act 2005, Dr Grolaux is reprimanded.
4. The counselling required under Order 2(b) must be as follows:
   • (a) The counselling must be undertaken by Dr Grolaux with a senior psychiatrist with consultation liaison skills, such psychiatrist to be appointed by or approved by the Chief Executive Officer of the Medical Practitioners Board of Victoria.
   • (b) The counselling must be undertaken at Dr Grolaux's own expense, and commence within three months of the date of this determination.
   • (c) The counselling must comprise intensive one-on-one counselling with a minimum of 12 sessions within the first three months. Any ongoing counselling beyond these 12 sessions will be at the discretion of Dr Grolaux and the psychiatrist.
   • (d) Without limiting the matters to be addressed in the counselling, the counselling must cover the following issues:
     • Dr Grolaux's own insight into his behaviour, and any underlying causes or personal development issues;
     • Dealing with patients with particular difficulties, needs or vulnerabilities;
     • Professional boundaries; and
     • Cultural or practice-related issues for a non-Australian trained doctor practising in Australia.
5. Without imposing any formal condition on Dr Grolaux's registration or practice, Dr Grolaux is encouraged to maintain appropriate professional training and development, and to seek out a mentor within the profession from whom he can seek occasional advice or assistance.

Mr Andrew Clements of counsel, instructed by Minter Ellison, Solicitors.

Dr Ian Freckleton SC of counsel, instructed by Tress Cox, Lawyers.

1. Through our decision on 20 May 2009 following a 4 day hearing in April 2009, and in relation to the allegations set out in a Notice of Referral from the Medical Practitioners Board of Victoria dated 18 December 2008, we made several findings of unprofessional conduct against Dr Grolaux[1].
2. A further hearing was convened on 2 June 2009 to hear submissions on further orders that the Tribunal should make given its findings, including the determination(s) that may be made under s 45A(3) of the Medical Practice Act 1994 and s 77(4) of the Health Professions Registration Act 2005. At the conclusion of that further hearing, we gave an outline of our determination, which we now record (with brief reasons) in written form.

1. We agree with the Board that separate determinations are required for the periods pre and post 1 July 2007, given the different legislative regimes in force.
2. For the period of unprofessional conduct on or prior to 30 June 2007, where the unprofessional conduct is not of a serious nature, the determinations available to the Tribunal arise through s 45A(3) of the Medical Practice Act 1994. That sub-section essentially empowers a determination to be made as if the matter had been determined through an informal hearing of the Board under s 43 of that Act. A determination may be made that the practitioner be cautioned or reprimanded and/or that the practitioner undergo counselling or further education.
3. For the period of unprofessional conduct on or after 1 July 2007, the range of determinations available to the Tribunal is set out in s 77(4) of the Health Professions Registration Act 2005. These include (but are not limited to) a requirement that the medical practitioner undergo counselling, a caution or reprimand, a fine up to $50,000, suspension or cancellation of registration, and/or an order that the medical practitioner do or refrain from doing something in connection with the practice of his or her profession. The Tribunal can make one or more of these determinations.

1. We note that counsel for the Board and Dr Grolaux both indicated no disagreement on the legal principles relevant to our determination.
2. Although often termed a 'penalty', when considering what determination is appropriate, the Tribunal should not consider its determination as punishment. As has been indicated in many other cases, the objectives of the determination are primarily the protection of the public and the maintenance of professional standards in the eyes of the public[2], although the general role of deterrence in protecting the public is a factor to be taken into account in this consideration[3].
3. As in other cases, we also consider the degree to which the practitioner has insight into his or her professional misconduct or unprofessional conduct is also of potential relevance to the determination[4]. We also agree that important to our consideration is the degree to which the practitioner has insight into his or her unprofessional conduct[5]. In context, this 'insight' might be reflected in a variety of ways, such as an understanding of the nature of the conduct, an acceptance that the conduct was seriously wrong, an appreciation of why the practitioner engaged in that conduct, empathy with the consequences, and /or a willingness to take measures to identify risk factors and to avoid similar behaviour.
4. This aspect of the matter has concerned us. We accept the submission from Dr Grolaux's counsel that Dr Grolaux now accepts that his conduct was wrong, and that he has shown some empathy for the impacts of his conduct on Ms AB. However, we are not necessarily convinced that Dr Grolaux has demonstrated sufficient insight into his own behaviour. This was not readily apparent to us at the main hearing. We also note the concession from Dr Grolaux's counsel that Dr Grolaux did not yet have complete insight into his behaviour, and was still on somewhat of a personal journey reflecting on such issues.
5. In considering our determination, we have also taken into account other relevant issues, including the following:
   • Dr Grolaux has a previously unblemished record. The events of mid-2007 appear to have occurred at a difficult time in his personal life, and when he was suffering a degree of professional isolation in not having a good peer network with whom he could discuss the issues confronting him.
   • We have had regard to the three character references provided on Dr Grolaux's behalf by other practising medical practitioners. We were informed that those practitioners had notice of our findings when providing those references.
   • We have had regard to the personal embarrassment caused to Dr Grolaux by media reporting of our findings, and the impact this may have on his practice and professional reputation.
6. In respect of Allegation 1 (i.e. the transgression of professional boundaries by Dr Grolaux), and for the period of conduct on or prior to 30 June 2007 we had found the unprofessional conduct to be not of a serious nature. We agree with the Board that the appropriate determination is nonetheless a reprimand rather than a caution. Within the 4 day period prior to 30 June 2007, we found that Dr Grolaux had commenced and maintained an inappropriate personal relationship with Ms AB through some 41 SMS messages and phone calls, some initiated by Dr Grolaux late at night or early in the morning. The conduct was inexcusable, and deserving of a level of reprobation beyond a caution in the circumstances of this case.
7. In respect of Allegation 1 for the period of conduct on or after 1 July 2007, the transgression of professional boundaries and unprofessional conduct became much more serious. Having regard to our particular findings, we agree with the Board that the appropriate determination is nonetheless a reprimand. The conduct was again inexcusable, and deserving of a high level of reprobation. However, we do not consider this the sort of case where a fine would ordinarily be appropriate, and we note that the Board did not agitate for any suspension of Dr Grolaux's registration in the particular circumstances of this case. We will deal separately below with an additional determination for counselling arising from the unprofessional conduct under Allegation 1.
8. In respect of Allegation 3 (i.e. the failure to refer Ms AB to another practioner), we again agree with the Board that the appropriate determination a reprimand. As reflected by our findings, this conduct was also inexcusable, and deserving of a level of reprobation beyond a caution.
9. We note that Dr Grolaux's counsel did not contest a reprimand as being the appropriate determination in the three circumstances described above.
10. As noted in other cases, a reprimand should not be considered to be a 'slap over the wrist'. In this regard, we adopt and endorse the views of Marks J in Peeke v Medical Board of Victoria[6]. A reprimand certainly does not trivialise a serious lapse of professional standards, and has the potential for serious adverse implications for the medical practitioner. A finding of unprofessional conduct, combined with the reprimand, is a serious form of censure and condemnation for Dr Grolaux's conduct.

1. Apart from a reprimand, another of the discretionary determinations available to us under s 77(4) of the Health Professions Registration Act 2005 is to require that the medical practitioner undergo counselling. For the unprofessional conduct in Allegation 1 occurring on or after 1 July 2007, the Board requested that we make a determination that Dr Grolaux undergo counselling by a medical practitioner on the maintenance of professional boundaries. This was not opposed by Dr Grolaux's counsel, and we were told that Dr Grolaux in fact 'embraced' the suggestion for counselling.
2. We agree that counselling for Dr Grolaux should form a key part of our determination. At the hearing on 2 June 2009, we openly canvassed with the parties issues such as who might undertake the counselling (i.e. whether it be within Dr Grolaux's own discipline as a cardiologist, or by a psychiatrist or other practitioner), and whether it should be limited to professional boundary issues. The transgression of professional boundaries is, in our view and experience, likely to be the consequence or manifestation of other underlying personal issues. Preferably, the counselling should also attempt to identify and deal with these underlying causes or issues, particularly given our opinion that Dr Grolaux still lacks full or sufficient insight into his behaviour. Given our findings, it also appears to us that Dr Grolaux's has had difficulties in dealing with an extremely vulnerable patient, and perhaps has some difficulties as a non-Australian born or trained doctor in dealing with the Australian 'culture' in the practice of medicine and dealings with patients.
3. We consider it would be appropriate for the counselling to cover all of these issues. For this reason, we believe a senior psychiatrist with consultation liaison skills would be best placed to provide this counselling. The Board had initially suggested one-on-one counselling of four to six sessions, but ultimately left the matter to the Tribunal. So too did Dr Grolaux's counsel. As we indicated at the conclusion of the hearing, we consider a more intensive level of counselling is warranted if it is to address all of these issues reflected in our determination. We consider the counselling should occur approximately weekly, with a minimum of 12 sessions within an initial 3 month period. This will, in our view, best serve the protection of the public, in an endeavour to prevent any possible re-occurrence of any unprofessional conduct by Dr Grolaux. Moreover, we consider the more intensive counselling will materially assist Dr Grolaux in his personal and professional development, and thus enable him to overcome the past events of this case, and to make a positive contribution to his continuing practice of medicine. We consider Dr Grolaux may well benefit from longer term counselling beyond this initial intensive period. However, we leave that to the discretion of Dr Grolaux and the counsellor.
4. Although we agree with the Board that there be no additional restriction placed on Dr Grolaux's practice or registration, we also encourage him to maintain appropriate professional training and development, and to seek out a mentor within the profession from whom he can seek occasional advice or assistance in the future, if the need arises.

[1] This earlier decision is now reported at [2009] VCAT 901

[2] Following Ha v Pharmacy Board of Victoria [2002] VSC 322 at para [91] and [97]

[3] Following Papps v Medical Board of South Australia [2005] SASC 345 at paras [54]-[65]

[4] Following Williams v Medical Board of Victoria [2008] VCAT 1784 at para [99]

[5] Following Morris v Psychologists Registration Board (unreported decision of the Supreme Court, Harper J, 19 December 1997)

[6] unreported, Supreme Court No. 10170 of 1993, 19 January 1993, at p 6.