(ii) the counselling must comprise not less than two one-on-one sessions with a counsellor;

(iii) within one month of the completion of the counselling, and prior to Dr Kelly returning to practise, the counsellor and Dr Kelly shall each provide a report to the Board detailing the content and lessons learnt from the counselling to the satisfaction of the Board; and

(iv) all costs associated with the counselling and the preparation of the reports must be at Dr Kelly's expense.

VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL

ADMINISTRATIVE DIVISION

Occupational & Business Regulation List - medical practitioner - unprofessional conduct - Health Professions Registration Act 2005 ss 3, 59 and 77

Deputy President A. Coghlan

Member Dr A Reddy

Member Dr P Molloy

Medical Practitioners Board of Victoria v Kelly (Occupational and Business Regulation) [2009] VCAT 2109

Having conducted a hearing into allegations referred to the Tribunal, the Tribunal finds pursuant to s 77(1)(a) of the Health Professions Registration Act 2005 (HPR Act) that Dr Kelly has engaged in unprofessional conduct within the meaning of s 3(1)(a) and (b) of the HPR Act.

Mr J Noonan SC with Mr S Cash instructed by Avant Law

1. Dr Bernadette Kelly is a medical practitioner who has been in general practice for the past 40 years.
2. For the week commencing 15 October 2007, she was engaged as a locum medical practitioner in a general practice on the outskirts of Bendigo.
3. Wednesday 19 October 2007 was a difficult day for Dr Kelly because she was worried about her daughter's health. Her daughter had gone to hospital that morning and was then transferred to St Vincent's Hospital in Melbourne.
4. During the afternoon, a young female patient presented requesting a script for Xanax 2mg. She had received a script for this several days previously. Dr Kelly indicated that although she was unlikely to be given another, she would telephone and check with the HIC. As Dr Kelly expected, permission was denied. The patient then left the room and created a huge commotion in the surgery foyer.
5. The receptionist describes that patient as very agitated and carrying on hysterically; very upset for some 20 minutes. The receptionist asked the patient to leave and told her if she did not, she would have to call the police. She would not go and the receptionist rang the police. The patient then left the surgery and sat on the front footpath yelling and crying.
6. That patient was either still in the consultation room or sitting on the floor in the foyer when Ms HS arrived at the surgery. Ms HS is in her early 40s and had made an appointment to see the doctor for a problem with her eye. She arrived at the surgery after 4:00 pm having collected her 4 year old daughter TS from kindergarten. TS and Miss LG, a 17 year old family friend, who was with Ms HS when they collected TS from kindergarten, both came into the surgery with Ms HS. As a group, they waited in the waiting room.
7. Dr Kelly saw another patient before Ms HS. Dr Kelly then called Ms HS. All three got up to go into the consultation room. Dr Kelly said something like "I only want to see the patient" or, because the consultation room was small, asked the young woman and the child, whom she thought was the young woman's daughter, to "wait outside the room on the seats in the hallway".
8. Ms HS went into the consultation room. There is some debate about whether Miss LG and TS actually went into the consultation room and then went back out, whether they left the waiting room at all or were in the foyer when spoken to by Dr Kelly, but not much turns on this.
9. The consultation commenced. Dr Kelly says Ms HS told her, her eye had been sore for 3 days. She recollects seeing that the eye was mild to moderately inflamed. She obtained a history from Ms HS and asked her whether she had any allergies etc.
10. According to Dr Kelly, it was at this point that TS began thumping on the door. Her recollection is that the thumping was continuous, making it very difficult for Dr Kelly to concentrate on the consultation. She did not hear TS calling out "Mummy mummy or mum mum". She got up to go to the door. Dr Kelly says by this time the consultation had been in progress for about 5 minutes.
11. Ms HS's recollection is that she had only just sat down when she heard a bang at the door and she could hear TS yelling out "Mum". Ms HS says that she was about to explain to Dr Kelly that if TS could stay in the room with her she would calm down, but she says that before she could say anything, Dr Kelly stood up, swung the door open and yelled "excuse me!".
12. Dr Kelly says she did get up to go to the door, but does not specifically recall saying "excuse me" to Ms HS. She says she may have done so and, if she did, it would have been in the context of interrupting the consultation. Dr Kelly says Ms HS did not react to the interruption and as Miss LG was not doing anything to stop TS from hammering on the door, she stood up and moved quickly from the desk towards the door.
13. What happened next is the crux of this proceeding. We will return to consider in greater detail what occurred. Suffice to say at this point, that after Dr Kelly opened the door, she either slapped or tapped TS twice on the bottom.
14. Ms HS says she heard two slapping sounds that sounded like Dr Kelly was hitting TS. She says she yelled out "What do you think you are doing? You can't hit my daughter". It was then that Dr Kelly realised TS was Ms HS's daughter.
15. Whether immediately thereafter or after Ms HS had gone out of the consulting room and then come back in, there was a heated exchange between Dr Kelly and Ms HS. It was at that point Dr Kelly became aware that TS was autistic. Dr Kelly admonished Ms HS for screaming and yelling at her and believes Ms HS was about to phone the police, accusing her of assaulting her daughter. Dr Kelly then collected her things and announced she had had enough. She left the consulting room. There were several other patients still waiting in the waiting room. Dr Kelly made no arrangements for them. The receptionist let her out the back door. As she was going out, the police arrived at the front door. They had come in response to the call made about the earlier patient.
16. The police officers had some discussion with Dr Kelly while she was in her car wanting to leave the premises. Ms HS, Miss LG and the receptionist all made statements to the police that evening, and one of the police officers made some notes at the time she spoke to the doctor. The police did not press charges against Dr Kelly.
17. In January 2008, Ms HS made a complaint to the Medical Practitioners Board of Victoria (the Board) about Dr Kelly's conduct.

1. Under s 59(2)(g) of the Health Professions Registration Act 2005 (the Act), the Board has referred this matter to the Tribunal.
2. The referral is made for the Tribunal to conduct a hearing and to make findings about the following allegations -

That Dr Kelly engaged in unprofessional conduct within the meaning of sections 3(1)(a) and/or 3(1)(b) of the definition of 'unprofessional conduct' in the HPR Act and/or professional misconduct within the meaning of section 3(1)(b) of the definition of 'professional misconduct' in the HPR Act, in that on or around 19 October 2007, Dr Kelly physically abused TS who is the child of Dr Kelly's patient, Ms HS.

PARTICULARS

Dr Kelly physically abused TS by :

(i) taking hold of TS's arm; and/or

(ii) pushing TS into the doorway; and/or

(iii) pressing TS in the doorway; and/or

(iv) slapping TS.[1]

1. After a hearing, s 77(1)(a) of the HPR Act provides that we may make a finding as to whether or not Dr Kelly has engaged in unprofessional conduct or professional misconduct. Section 77(4) then sets out the determinations we can make.

1. Dr Kelly denies the allegations and the hearing before us on 10 and 11 August 2009 was about disputed versions of events which took place on 19 October 2007, which gave rise to the allegations. The hearing was confined to whether or not we should make any adverse finding, and if so what finding, against Dr Kelly. Thus, any further determination remains to be considered.
2. The Board called a number of witnesses who gave evidence and were cross-examined. Dr Kelly then gave evidence and was cross-examined. Both parties made submissions about the findings we should make.
3. The allegations against Dr Kelly are serious. We agree with Mr Noonan's submissions that the approach to the standard of proof with respect to such allegations is that which is set out in Briginshaw v Briginshaw[2]. The standard is on the balance of probabilities, bearing in mind the seriousness of the allegation. Mr Noonan referred to the well known passage from that decision because of its relevance to our findings in this case. In that passage, Dixon J said :

The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters 'reasonable satisfaction' should not be produced by inexact proofs, indefinite testimony, or indirect inferences.[3]

1. We have approached our task of making findings with those principles in mind.

1. We are concerned here with what actually occurred in a very short space of time; whether when Dr Kelly opened the door, she took hold of TS's arm and slapped her.
2. In the drama of what happened before and after that moment, people's recollections of what actually happened understandably will not be perfect.
3. Mr Noonan submitted that we should be very concerned about accepting the evidence of Ms HS and Miss LG given the inconsistencies in their recollections which he drew our attention to, and given that some of their recollections could not be correct. We accept that we should approach their evidence with caution.
4. We observed Ms HS giving her evidence and being cross-examined. We accept that the evidence she gave was truthful to the best of her recollection. She made appropriate concessions when matters were put to her. For example, in answer to a question from Mr Noonan, she readily conceded that she thought she had told Dr Kelly at the outset who TS was, but that she could not really remember. She conceded that she could not say she had told Dr Kelly TS had to accompany her. She readily conceded she could not see Dr Kelly slapping TS, and that she had made an assumption that Dr Kelly had, because she heard two slapping sounds. Whilst she was firm that she did see Dr Kelly take TS by the arm, she agreed she did not see anything else, because her entire line of sight was obscured by Dr Kelly.
5. Miss LG gave evidence and was cross-examined. She knows TS well and we accept she had done her best to look after TS whilst Ms HS was in the consultation room. Her recollection was that she entertained TS for 10 minutes before TS went and started banging on the door. She tried to take TS away from the door but could not because she was kicking her. She gave her evidence in a straightforward manner and we accepted the evidence she gave was truthful to the best of her recollection. Both Ms LG and Ms HS made statements to police on the day of the incident.
6. The receptionist gave evidence and was cross-examined. We accept that the evidence she gave was to the best of her recollection and that the matters were fresh in her mind when she made her statement to police.
7. The two police officers who came to the surgery as Dr Kelly was leaving, gave evidence. They made concessions appropriately when certain matters that could not have been accurate were pointed out to them.
8. Dr Kelly gave evidence. We accept that the evidence she gave was according to her recollections now. Whilst she had made a response in February 2008 to the Board's inquiries about these matters, she had not been asked to, nor had she made any statement about them on the day itself. Some of her recollections were clearly wrong. For example, the location of a bench or two chairs in the foyer. However, there were other matters which she readily conceded, such as that she could not recall exactly at what point she asked for only the patient to be in the consulting room.
9. On the evidence, we are satisfied that the consultation had actually been in progress before the banging on the door commenced. We did not accept Ms HS's recollection that she had just sat down when there was a bang on the door and the doctor got up. It was not consistent with Dr Kelly's recollection, nor with Miss LG's. According to Miss LG, it was a couple of minutes, or a minute according to her statement to police on the day, or 10 minutes in to her evidence during the hearing which clearly could not be correct, before TS ran to the door and started banging on it. Dr Kelly thought it was five minutes and that the banging was continuous enough to affect her concentration. We are satisfied that the consultation had been in progress for at least one minute when the banging on the door commenced. There was not just one bang as Ms HS had stated to police on the day. She later stated to the Board's investigating officer and gave evidence during the hearing that the disturbance was a continuous knocking noise that was interrupting the consultation. Those recollection are consistent with the evidence of Dr Kelly and Ms LG who said on the day TS "started to bang on the door" and with the receptionist's evidence that "the youngest girl went to the door of the consulting room and started to bash on the door".
10. We are satisfied that at that point Ms HS had not told Dr Kelly TS was her daughter nor that she was autistic. We accepted Dr Kelly's evidence that she did not hear TS calling "Mummy mummy or mum, mum", even were that the case.
11. We accepted Dr Kelly's evidence that she had assumed Miss LG was TS's mother. Her explanation for why she assumed this rang true.
12. In her February 2008 response to the Board, Dr Kelly says this about what happened :

I went to the door and opened it, expecting to see TS facing me. She in fact had her back to me, and I assume, as the door opened she slid down it landing on her bottom. The door opened towards me from the left to right. When I pulled to open the door, TS, who must have been leaning on it, slid to the floor with her back turned away from me angled slightly to the right. She was virtually at my feet and slightly to the right.

TS is a very small child, and although I now know she is 4 years old, she looked more like a toddler to me. I recall well what TS was wearing. She was wearing a dress, or pinafore over a tee-shirt, and had on blue plastic pants, presumably over a nappy. She was not wearing hipster pants and her midriff was not bare. I squatted down to lift her up. I moved my right arm to place it under her bottom and my left to steady her left shoulder in order to scoop her up and hand her to the young woman in the hallway. As I did this TS's right shoulder moved towards the left. This brought her hips around and lifted her bottom off the floor away from me. While she moved, and in the process of attempting to pick her up, I tapped her twice on the bottom.

I categorically deny that I slapped, smacked, hit or struck her. We have different words in our language because they describe different actions, intents and outcomes. At no stage did TS scream, cry or whimper. In fact I recall her being quite unperturbed. Again, I adamantly deny grabbing TS, swinging her around or raising my hand. I find these allegations incredibly offensive.

As I have stated, my intention was to scoop TS up and hand her to the woman whom I assumed was her mother to take care of her. Whilst still squatting on the floor I was then interrupted by Ms HS who started screaming 'don't you touch my child don't you lay a finger on her'. Ms HS then came forward to my right, crouched down and took the child. At this point I stood up and stepped back into the consulting room. I either closed the door or virtually closed it.

1. Dr Kelly's evidence during the hearing was that she patted TS on the bottom so that she would go over to Miss LG. Her recollection which she described vividly when she was giving evidence, was that Miss LG was sitting on a bench when she opened the door, and that she had stared across at her expecting her to do something. She would not concede she may have been wrong about this.
2. As we observed before, Ms HS saw nothing other than Dr Kelly grabbing TS by the shoulder. Yet she heard two slapping sounds, and according to Dr Kelly Ms HS had interrupted and started screaming "don't touch my child".
3. The receptionist could not see the door of the consultation room from where she was, but she could see the foyer area in front of her. In her statement made on the day, she says Miss LG followed TS to stop her from going in. She could hear them but not see them. She then heard the door of the consulting room open. The next thing she heard was Dr Kelly say "go and wait in the waiting room". Her evidence about where Miss LG was, when the door opened is important because Dr Kelly's recollection during the hearing is that Ms LG was at that point sitting on a bench in the foyer.
4. Miss LG's recollection, consistent with the receptionist's evidence, is that she was standing behind TS when the door opened and we accepted that evidence. The weight of the evidence is such that we are satisfied that she was standing behind TS not sitting on a bench doing nothing as Dr Kelly recollects. Miss LG was well placed to see what happened.
5. In her statement to police made on the day she says :

The Doctor grabbed TS by the arm and turned her around so TS's back was facing the Doctor. The Doctor then hit TS on her back and then again on her bottom. This made a slapping noise. I do not recall what hand the Doctor used to hit her. It was an open hand.

1. In her evidence in chief she explained it was just mild slaps like a warning and that TS reacted in shock and just screamed. When Dr Kelly's version of what happened was put to her, she firmly disagreed that TS had her back to the door when it was opened. She disagreed that TS slumped to the floor. She did not recall Dr Kelly squatting down to scoop TS up and that TS moved and that Dr Kelly tapped her twice. She was firm in her recollection she was standing behind TS when the door opened and not sitting on a bench. She confirmed she did not see Dr Kelly pushing TS into the door frame or that TS was in between the doorway and Dr Kelly so she could not move.
2. Given that Miss LG was so well-placed to see what happened and has been consistent in her recollections of what happened, we find her version the more reliable.
3. Her version is also generally consistent with the version in the notes made by Constable Bannan of a conversation the Constable had with Dr Kelly, as Dr Kelly was about to drive away from the surgery. Those notes, made at the time, record -

Child banging on door ....

Removed child from away door, by the shoulders & moved away ....

I pushed the child away.

1. When it was put to Dr Kelly that the officer had recorded that Dr Kelly had said she pushed the child away, she disagreed that she had said that to the officer. She gave that evidence even though shortly after, she said she could not recall having any conversation with the officer.
2. It may not be surprising Dr Kelly does not recall any conversation because the officer's observations of Dr Kelly noted at the time, were that Dr Kelly was shaking, anxious and abrupt. Given the officer made the notes at the time it is more likely than not that Dr Kelly did say that she moved the child away from the door by the shoulders and pushed the child away.
3. We are satisfied that when the door opened, Dr Kelly took TS by the arm, and slapped her twice. We did not accept Dr Kelly's evidence that she simply tapped her twice on the bottom. Whilst there is nothing to suggest that Dr Kelly did this to hurt or punish TS, we are satisfied it was done to exert some physical discipline to stop TS interfering with the consultation.
4. We were left with the impression that Dr Kelly could not admit that on this occasion she had grabbed the child and exercised some summary discipline. She made it very clear in her evidence at the hearing that she regarded herself as the one who was being abused when Ms HS took her to task.
5. We are satisfied that allegations (i) and (iv) are proven.
6. At the commencement of his submissions Mr Maidment indicated that because there was no reliable evidence that Dr Kelly had pushed TS into the doorway, or pressed her in the doorway, the Board did not press allegations (ii) and (iii). We agree with Mr Noonan that such findings were not open on the evidence.

IS THE CONDUCT "UNPROFESSIONAL CONDUCT" OR "PROFESSIONAL MISCONDUCT"?

1. The HPR Act defines "unprofessional conduct" and "professional misconduct". Relevantly for this proceeding "unprofessional conduct" includes -

(a) conduct of a health practitioner occurring in connection with the practice of the practitioner's health profession that is of a lesser standard than a member of the public or the health practitioner's peers are entitled to expect of a reasonably competent health practitioner of that kind;

(b) professional performance which is of a lesser standard than that which the registered health practitioner's peers might reasonably expect of a registered health practitioner;

(b) conduct that violates or falls short of, to a substantial degree, the standard of professional conduct observed by members of the profession of good repute or competency;

1. Mr Maidment submitted that essentially the difference between the two findings is a matter of degree.
2. What Dr Kelly did was wrong. Hers was not an appropriate response to resolving disruptive behaviour. Any general practitioner would know not to have physical contact with a child, let alone a child who was not one's patient, without first making oneself known to the child and establishing some rapport.
3. To have behaved in this peremptory fashion and to have taken matters into her own hands is a departure from what most general practitioners and the public would regard as a reasonable standard of behaviour. It is common for children to misbehave when they are distressed, and someone with Dr Kelly's maturity and experience should have known better.
4. Whilst there may be cases where physical force or restraint is unavoidable, this was not such a case. Patients and people visiting the surgery who are vulnerable, the frail elderly and the disabled, have a right to attend a medical practice without fear of unwarranted and undue force being put upon them.
5. To make a finding of professional misconduct we would need to be satisfied that the conduct violates or falls short of, to a substantial degree, the standard of professional conduct observed by members of the profession of good repute or competency. In this case, although the conduct was unprofessional and completely inappropriate, it does not fall within the spectrum of conduct that should be regarded as professional misconduct. Professional misconduct encompasses those extremes of unprofessional behaviour which have been seen in other proceedings. Dr Kelly's behaviour does not lie at the extreme end.
6. We are satisfied the conduct is of a lesser standard than a member of the public and her peers might reasonably expect and that Dr Kelly has engaged in unprofessional conduct within the meaning of section 3(1)(a) and (b) of the definition of "unprofessional conduct" in the HPR Act.

[1] The names of the notifier and her daughter have been replaced with initials. Orders were made at the commencement of the hearing pursuant to s 101(3)(c) of the VCAT Act that any information which may enable the notifier in this matter to be identified, not be published and/or made available to the public in general.

[2] [1938] HCA 34; (1938) 60 CLR 336