Victorian Civil and Administrative Tribunal|2003-04-11|Before: Ms P

Pettiford v Medical Practitioner's Board of Victoria [2003] VCAT 940 (11 April 2003)

Mr M Morrison of Counsel instructed by Marshalls and Dent

1. This is an application to review a decision of a Panel of the Medical Practitioner's Board of Victoria dated 9 October 2002. The Panel was appointed pursuant to s.46 of the Act.

2. On that date the Panel made the following decisions.

That the applicant who is a medical practitioner engaged in unprofessional conduct of a serious nature pursuant to s.50 of the Medical Practice Act 1994 in that he

(i) Between 5 December 1998 and 25 July 2001 engaged in a sexual relationship with his patient, Mrs C;

(ii) At Glen Iris or Burwood between 5 December 1998 and 25 July 2001 during the course of one or more consultations did not maintain appropriate boundaries between himself and the patient, Mrs C;

(iii) Did on 25 July 2001 in response to a notice of proposal to suspend his registration as a medical practitioner provided the Medical Practitioner's Board of Victoria with information that was false knowing it to be false.

3. The Panel also made adverse findings with regard to the applicant's conduct insofar as it related to another patient Ms P. The findings in respect of this patient were as follows:

A At Burwood between 1 January 1996 and 9 November 1999 during the course of one or more consultations you engaged in conduct that was inappropriate and/or unnecessary for treating your patient Ms P. Particulars -

(i) During one or more of the consultations you hugged Ms P;

(b) sat on the floor with your legs apart and invited her to sit between your legs

(d) told Ms P her parents were causing her difficulties

(e) told her that you were the only person who could help her

B Between the 1 January 1996 and 9 November 1999 on an occasion you behaved inappropriately towards your patient Ms P. Particulars -

(ii) You offered to pick her up and take her for a drive so you picked her up from near her home at Nunawading

C Between 1 January 1996 and 9 November 1999 on one or more occasions (other than that referred to in allegation (b)) you behaved inappropriately towards your patient Ms P. Particulars -

(i) On one or more occasions you picked Ms P up from near her home at Nunawading and took her for an outing.

D At Burwood between 1 January 1996 and 9 November 1999 during the course of one or more consultations you engaged in conduct that was inappropriate and/or unnecessary for treating your patient Ms P. Particulars -

(i) You asked Ms P to describe in detail sexual acts she had performed

(ii) You did so without indicating how that information was relevant to your treatment of her

(iii) You asked Ms P to remove one or more layers of clothing

(iv) You told her you knew how she could get in touch with her body

(vi) When she was lying on the floor you tapped and/or pricked her with a pin

(vii) After she told you she thought bugs were infesting her body you

(b) told her you were telling the bugs to go to one place in her body

(ix) You told Ms P it was important for her and/or her body to experience pleasure

I At Burwood between 28 September 1999 and 2 December 1999 you failed to properly manage termination of the doctor/patient relationship with your patient Ms P. Particulars

(i) You failed to refer Ms P to another appropriate treating psychiatrist or medical practitioner

(ii) You failed to ensure that adequate provision had been made for Ms P's ongoing care and/or safety and/or medication

(iii) You failed to deal adequately or at all with issues of transference that had arisen during your treatment of Ms P

4. It should be noted that the above particulars which relate to both women represent the adverse findings which were made against the applicant following a hearing before the Panel. With regard to the patient Ms P there were a number of significant and serious allegations which were made against the applicant substantially of a sexual nature. The Tribunal at the hearing was informed by the parties that there was "in essence" agreement between them as to the facts and that all that was required in the review was a determination as to the characterisation of those facts in accordance with s.50 and s.3 of the Act.

5. The Tribunal proceeded to hear the matter on the basis of that agreement. The agreement also included the procedure by which the matters would be heard, namely that all of the evidence which was taken before the Board would form the basis upon which the Tribunal would determine the issues which were outlined by the parties.

6. However the Tribunal does point out that by reason of the above agreements we are confined to a consideration of these matters in circumstances where we may not have reached the same findings whether favourable or unfavourable to the applicant if we were to determine the factual material in the way which we saw fit. This observation applies particularly to the applicant's patient Ms P.

7. We turn to the facts in respect of each of the applicant's patients. Before dealing with the facts it is appropriate to refer to the various provisions in the Act. The Medical Practice Act 1994 provides in section 1 that the purposes of the Act are to:

"Protect the public by providing for the registration of medical practitioners investigations, into professional conduct and fitness to practise of registered medical practitioners."

"Unprofessional conduct means all or any of the following:

(a) professional conduct which is of a lesser standard than that which the public might reasonably expect of a registered medical practitioner;

(b) professional conduct which is of a lesser standard than that which might reasonably be expected of a medical practitioner by her or his peers, or

9. The remaining definitions of unprofessional conduct which are contained in section 3 are not relevant to the case which is before the Tribunal. Section 50 refers to the final findings and determinations of a formal hearing into conduct by a Panel but it is of course equally applicable to the Tribunal when it reviews the Panel's findings.

"(1) After considering all the submissions made to a formal hearing into the professional conduct of a registered medical practitioner the Panel may find that -

(a) a practitioner has whether by act or omission engaged in unprofessional conduct of a serious nature, or

(b) a practitioner has whether by act or omission engaged in unprofessional conduct which is not of a serious nature, or

(2) If the Panel finds that the practitioner has whether by act or omission engaged in unprofessional conduct of a serious nature the Panel may make one or more of the following determinations.

(a) Require the practitioner to undergo counselling;

(d) require the practitioner to undertake further education of the kind stated in the determination and to complete it within the period specified in the determination;

(e) impose conditions limitations or restrictions on the registration of the practitioner;

(f) impose a find on the practitioner of not more than twenty penalty points;

(g) suspend the registration of the practitioner for the period specified in the determination, or

(3) If the Panel finds under subsection 1(b) that the practitioner has whether by act or omission engaged in unprofessional conduct which is not of a serious nature the Panel may make any determination which a Panel at the informal hearing is able to make upon making such a finding. Subsections 4 and 5 deal with matters which are not strictly relevant to this hearing."

11. Before turning to the facts we wish to say something with regard to the nature of these proceedings as decided by the various decisions. Perhaps one of the most important issues to be borne in mind is that proceedings of this nature are not regarded as punitive. The purpose is not to punish the practitioner by reason of his conduct even though it may have the effect of imposing sanctions that amount to punishment. See, for example, Healthcare Complaints Commission v Litchfield, a decision of the Court of Appeal of New South Wales dated 8 August 1999 where the Court said at page 9 of its unreported decision:

"Disciplinary proceedings against members of a profession are intended to maintain proper ethical and professional standards primarily for the protection of the public but also for the protection of the profession."

12. We also refer to the decision of Sherman v Medical Practitioners Board of Victoria (unreported Victorian Civil and Administrative Tribunal, Kellam J, President, J Baker-Smith, Dr Julian Davis, Member, 17 February 2000 No. B57/1999) which in our view set out the applicable principles:

"It is submitted on behalf of the Board that it is clear from both the statutory provisions and the common law position that the purpose of these proceedings is entirely protective. It is submitted that it is protective both from the point of view of the public and from the point of view of the medical profession.

In this context we were referred by Mr Stanley to the following passage from Litchfield at page 637 -.

'The Tribunal referred to the effect of the criminal and disciplinary proceedings on the doctor and their cost "in money and emotional stress". These matters would be highly relevant if the purpose of these proceedings was punitive, but their purpose is entirely protective.'

These principles are clear, also, from a series of earlier decisions including New South Wales Bar Association v Evatt [1968] HCA 20; (1968) 117 CLR 177, particularly the passage at pages 183-4, concerning the protective nature of the Court's powers to discipline a barrister, there being no element of punishment involved.

We refer to the following passage in Mario Inglese and M Inglese Pty Ltd v Estate Agents Board and The Chief Executive Officer of The Estate Agents Board (unreported, Supreme Court of Victoria, Murphy J, 15 August 1989, 1988 No. M327/328) at page 22 -

'If an estate agent is to be disqualified, the purpose which the Tribunal should have in mind is not the punishment of the individual (though it may appear to be a punishment to him) but the importance of protecting the public and the necessity to maintain standards in the conduct of an estate agent's business.'

We agree that the principles in the above cases to which we have referred apply to medical practitioners under the Medical Practice Act. We note the reference in Inglese to the maintenance of standards as well as to the protection of the public."

13. It was conceded in the course of argument in that case that the onus was upon the Medical Practitioners' Board to satisfy the Tribunal on the balance of probabilities as to whether the practitioner has breached any of the rules of conduct. However, it is clear from that case and other authorities that it is not merely the balance of probabilities which is the civil standard of proof that is required. There is the proviso that the evidence must produce a reasonable state of satisfaction in one's mind. See the decision of Basser v The Medical Board of Victoria, O'Bryan J, [1981] VicRp 88; 1981 VR 953. In that decision O'Bryan J referred to the need to reach a state of mind when dealing with serious issues such as these which extend beyond the mere balance of probabilities. He cited, in support of that proposition, Mercer v The Pharmacy Board of Victoria 1968 VR72 and the oft-quoted and well-known decision of Briginshaw v Briginshaw [1938] HCA 34; 1928 60 CLR 336. It was common ground between the parties that the standard of proof requires "clear cogent and exact proof".

14. The Tribunal turns to the allegations against the applicant insofar as it affects Mrs C.

15. This woman was a patient of the applicant between 5 December 1998 and 25 July 2001. It is alleged that between those dates the applicant engaged in a sexual relationship with Mrs C and it is also alleged that during the same period the applicant did not maintain appropriate boundaries between himself and this patient. The applicant admits he had an ongoing sexual relationship with Mrs C which commenced on the applicant's admission in evidence before the Panel in late March or early April 2000. This allegation is referred to in the "marked up" notice of formal hearing which counsel worked from in the course of the submissions which were made. The allegation against the applicant that he engaged in a sexual relationship with his patient is referred to as A.

16. Allegation B is that during the period 5 December 1998 and 25 July 2001 during the course of one or more consultations the applicant did not maintain appropriate boundaries between himself and his patient, particulars of which are that he hugged and/or held her or allowed her to hug and/or hold him.

17. Allegation C relates to a letter which the applicant forwarded to the Board on 25 July 2001 in which he gave a false account of the relationship which existed between him and Mrs C, a fact which he then resiled from in a letter dated 2 August 2001.

18. Briefly the background to these matters is as follows. It would appear that Mrs C left her husband in approximately October 1999. At that time her husband had taken up with a new partner and the marriage ended in divorce in July 2001. It would appear that the applicant finished treating Mrs C at around about that time when he referred her to another medical practitioner.

19. It would therefore appear to be the situation that on the applicant's own admission he was involved in a sexual relationship with this patient from late March 2000 or early April 2000 until July 2001, a period of approximately fifteen months.

20. Indeed, it is agreed that such a relationship is ongoing. It should be noted that Mrs C has made no complaint about the conduct of the applicant in this regard. Indeed she has signed a letter dated 6 May 2002 admitting that the relationship is continuing and that the applicant has never been verbally or physically aggressive to her in any way and she asserts that the relationship has been one that has is mutually helpful to her. There are two other letters which are in a similar fashion. Furthermore the Tribunal notes that during the hearing before the Tribunal Mrs C, in fact, sat in the hearing room with the applicant. Mr Morrison advised the Tribunal that although the relationship is ongoing, they are not living together.

21. It is not in dispute that this relationship between the applicant and Mrs C was unethical. The Royal Australian and New Zealand College of Psychiatrists issued a code of ethics in August 1992 with regard to sexual relationships. This document has been updated since that time and it states that:-

"Such relationships between current patients and their psychiatrist are never acceptable and constitute unethical behaviour."

22. Mr Morrison, however, drew the Tribunal's attention to what he described as "non-aggravating matters", namely, the absence of exploitation and duress. He described the relationship as two adults in a mutual relationship although he conceded that there is an inequality in such a relationship.

23. Indeed, this was the position which was indicated by Dr Hacker who gave expert evidence before the Panel and whose evidence we are asked to adopt and apply in the course of this hearing. We do so taking into account both the medical report which was submitted in evidence, the evidence in chief of Dr Hacker and facts conceded by her during the course of cross-examination.

24. During the hearing Dr Hacker made the following general statement.

"There are a number of issues which primarily arise as a result of the inequality in the power distribution between the patient and the therapist. Those exist in boundary violation of that nature. They are secondary to a subset of issues that arise, in particular for patients who have suffered previous sexual abuse. The first issues relating to the power imbalance is that it is a major distortion of the power imbalance that two people who are entering into a sexual relationship outside a therapeutic one, bring an equality of sorts which is not affected by the issues raised to the patient/doctor relationship where the patient is seeking help from someone who is supposed to observe a professional relationship and of that professional relationship it is not to exploit the vulnerabilities of the patient concerned ... In other words that the power that the doctor brings to the relationship is far greater than the power that the patient brings and that in itself may - is frequently very destructive to patients."

25. In the course of cross-examination Dr Hacker conceded that the conduct of the applicant in having a sexual relationship with Mrs C whilst unethical was not in the worst range having regard to the fact that the applicant and Mrs C still see each other. There is an absence of violence and Mrs C would (assuming no sexual abuse had been suffered by her in the past, a fact we believe is not in dispute) not make her what Dr Hacker describes as a "sitting duck".

26. The Tribunal has considered the evidence of Dr Hacker carefully. It is our interpretation of the evidence that what took place between the applicant and Mrs C, although not the worst type of offending, was nonetheless quite unacceptable. It suffers from the defect of imbalance in the relationship and the inherent unethical nature of the relationship notwithstanding the "non-aggravating factors" referred to by Mr Morrison. Furthermore, the potential for exploitation of an acknowledged vulnerable patient must also be taken into account.

27. Furthermore, the Tribunal has had regard to the nature and extent of the illness which Mrs C was suffering at that time. This is described in detail by the applicant in a report dated 4 April 2001 to Messrs Testart Robinson & Pitts and it was in relation to Mrs C's Family Court proceedings. That report indicates that she first saw the applicant in approximately December 1998 and he found that she had an increasing depressed mood following a prolonged grief reaction concerning the still birth of twin girls in 1997.

28. Thereafter the applicant treated Mrs C on many occasions as an inpatient at Delmont Hospital and saw her as a private patient. In that medical report certain matters were noted by the Tribunal. Firstly, Mrs C had made several attempts to end her life, the last one taking place according to the report, in September 2000 which was not long after the commencement of the sexual relationship. Secondly, at one time the applicant felt the need to certify her because of her suicidal ideation. The certification led to her admission to Upton House, the public psychiatric unit at Box Hill Hospital and this took place in about April 1999. Thirdly, apart from the management of her condition with drugs, the applicant treated her on a number of occasions with electro-convulsive therapy. Fourthly, and from the Tribunal's point importantly the applicant was informed in February 2000 as a matter of urgency that Mrs C was in a distressed condition as a result of her marriage separation. This information was conveyed by the community nurse. The applicant said in that report that at around this time Mrs C "continues from time to time to cut at her forearms and early April 2000 reported to me during a recent visit from her husband he spoke of her depressed mood."

29. It is the Tribunal's view from the report to which we have referred that Mrs C was a person who over a period of time suffered as described by the applicant himself, as a person with a substantial problem with depression and possibly with some psychotic symptoms from as early as December 1998 and which continued through until September 2000. The Tribunal notes that during this time he entered into a sexual relationship with her in approximately late March or early April 2000 and continued such a relationship until his treatment of her ceased which was around the time his conduct was exposed.

30. The commencement of a sexual relationship between a psychiatrist and his patient at any time is both unethical and serious. It is even more so in the circumstances which we have outlined above which demonstrate in our view that at the relevant time Mrs C was and had been in a very vulnerable state.

31. The Tribunal finds that the conduct of the applicant constitutes unprofessional conduct within the meaning of s.3(1) of the Medical Practitioners Act such conduct taking place between March/April 2000 and July 2001. In making this finding, there is no evidence that the conduct took place earlier as alleged by the Board namely between December 1998 and 25 July 2001. The only evidence as to the date of the commencement of the sexual relationship was that given in evidence by the applicant. There was no evidence from Mrs C and as far as the Tribunal is aware there is no other evidence to establish the commencement of that conduct. In those circumstances the Tribunal finds it took place between the dates we have referred to. The Tribunal notes, however, that at page 517 of the transcript before the Panel the date April 2001 is mentioned whereas at page 522 in examination -in-chief the applicant conceded that the date was late March/April 2000.

32. The Tribunal finds that such conduct was in breach of paragraphs (a) and (b) and (c) of s.3(1) of the Medical Practitioners' Act 1994 and borders on unprofessional conduct of an infamous nature. However, the Tribunal is not satisfied as to the necessary standard to maintain such a finding. The Tribunal is, however, satisfied the conduct was serious within the meaning of s.50(1).

33. Paragraph B relates to the hugging by the applicant of Mrs C during consultations. There was evidence that Mrs C would throw her arms around the applicant at the beginning and/or end of some consultations. Dr Hacker gave evidence as to the dangers which lie in such conduct insofar as it contains dangers particularly where a person has been the subject of sexual abuse in the past. The Tribunal finds that this conduct is one which is unprofessional but on the information available not of a serious nature.

34. We turn now to allegation C. The applicant admits that in his letter of 25 July 2001 in response to a notice of a proposal to suspend his registration as a medical practitioner, he provided the Medical Board with information that was false and which he knew to be false. His explanation for that conduct is contained at page 523 of the transcript. He stated in evidence that when he wrote the incorrect material he did so because at that stage Mrs C had told him that her husband had been confronted by the applicant's wife and he was in quite a rage about things and he had threatened Mrs C that he would go back to the Family Court and take her children from her and with his (the applicant's) knowledge of the situation realise that if that were ever carried out Mrs C would really have a very bad outcome. She wouldn't cope with that situation and although he realised that he was wrong not to tell the truth to the Board that dominated his thinking at that particular point in time. He said, however, that over the following week he came to realise that it was a bit of a pointless exercise because he realised the Board would ask Mrs C a whole series of questions about it and she would not cope with that situation either and he thought that it would be better to tell the Board the exact truth and to admit the full relationship with Mrs C.

35. In the Tribunal's view the applicant has lied to the professional body that is required to monitor and assess the conduct of medical practitioners in this State. The function of the Board is clearly to uphold proper professional standards and to ensure that there is no breach of ethics or of proper professional standards. The conduct of the applicant in telling a deliberate lie to such a body in the obvious hope that it would not lead to further investigations into his unethical conduct is serious. His explanation, is that he was doing so to protect Mrs C, although at page 603 of the transcript before the Panel, he also agreed that there was a secondary purpose, namely to protect himself. He said that such action was in the context of refuting allegations that his wife was making about the relationship that he was having with Mrs C as well as other accusations.

36. It is the Tribunal's view when the two letters are read the applicant was attempting, as previously indicated, to deflect the Board's enquiry as well as to look after the interest of Mrs C and also his own interest. Furthermore, the fact that the second letter followed very soon after the first letter may be regarded as a mitigating factor but that must be tempered by his evidence that he realised that the Board would ask questions of Mrs C.

37. The Tribunal finds that the conduct of the applicant as outlined above meets the definition of unprofessional conduct in paragraphs (a), (b) and (c) of s.3(1) and that it was of a serious nature pursuant to s.50(1) of the Act.

38. We now turn to the issue of the allegations made by Ms P. Again the Tribunal records that due to the agreement between the parties we have not had the advantage of determining these issues with the benefit of hearing the applicant, the complainant or any professional witness. Furthermore, we are constrained insofar as we have to make an analysis of the conduct of the applicant by the agreement referred to above. We can understand why the respondent has agreed not to have the issues of fact re-litigated. It is apparent, for example, that the stress imposed upon Ms P were she be required to give evidence again would be significant. At the hearing before the Panel her evidence took several days. The time taken was caused substantially by the fact that Ms P became upset and time had to be given to her to compose herself. However, the findings of the Panel, in effect, dismissed the allegations that the applicant's conduct towards Ms P involved sexual impropriety.

39. As was indicated during the course of the argument before the Tribunal, if we are asked by both parties to accept the findings of fact, and further that we are to confine ourselves to the seriousness of the Acts, we do not believe that we can safely conclude that certain conduct engaged in by the applicant was necessarily designed to lead to sexual activity of the type which the Panel also was unable to make adverse findings against the applicant two of which were very serious matters. However, having said that, regard must be had by the Tribunal to the amended guidelines issued in October 1995 and which were distributed to all members of the profession and would have been available and known to the applicant and which contains the following definition:-

"The term sexual relationship is not restricted to sexual intercourse. In this guideline sexual relationship includes ... any form of physical conduct whether instituted by the patient or psychiatrist which has as its purpose sexual gratification or which might reasonably be construed by the patient as having that purpose."

40. It would be open to the Tribunal to find that it was so designed if we were required to consider all of the matters originally in dispute. However we believe that such a course of reasoning would be unrealistic and would fail to give proper weight both to the findings of the Panel favourable to the applicant and the agreement which has been reached between the parties who appeared before us.

41. We turn to the allegations. Firstly, it was agreed that the applicant on more than one occasion hugged Ms P. Secondly, that the applicant sat on the floor with Ms P and with his legs apart and invited her to sit between his legs. Further, when she was in this position he put his arms around her.

42. It would appear from the material that at first the applicant when treating Ms P would shake hands with her and later on he would do this as well as giving her a hug. That conduct standing alone we would consider viewed in its worst light as professional misconduct. Dr Hacker thought that any touching with regard to a sexually abused girl is dangerous and it could create re-traumatisation. However, given the views we take about the second aspect of how the consultations were conducted we regard this as no higher than poor judgment and that it is not unprofessional conduct as defined in s.3.

43. The conduct of the applicant, however, went further and the Tribunal regards the next step very seriously. It is clear that this girl was extremely vulnerable. There is a history of sexual abuse as a very young girl; inappropriate sexual behaviour by her; drug and alcohol abuse; episodes of probable psychotic behaviour and problems with regard to dissassociation. Further, she was a relatively young woman when she was in her second period of treatment with the applicant.

44. The applicant admits to sitting on the floor with his legs apart with the patient, also sitting on the floor with her back to him and in circumstances where he would then put his arms around her. This conduct, we find constitutes professional misconduct of a serious nature. We do so despite the fact that there is evidence that Ms P was happy to sit on the floor, certainly on her own, and further that she denied that there was any sexual connotation. Nonetheless we are satisfied that such conduct crosses the professional boundaries that should be maintained between a patient and a psychiatrist as indicated by Dr Hacker and the College guides and can lead to the development of inappropriate transference feelings, jeopardising the patient and the therapeutic relationship and also placing the therapist at risk.

45. Insofar as the further allegations made against the applicant are concerned it is alleged that the applicant told Ms P that her parents were causing her difficulties and that he was the only person who could help her. Further, that he behaved inappropriately towards her in that he telephoned her, offered to pick her up, take her for a drive and picked her up near her home in Nunawading and drove her home after a consultation. At that time he was dealing with a very psychologically vulnerable patient. In respect of these allegations the Tribunal finds that they constitute extremely poor judgment on the part of the applicant but do not amount to unprofessional conduct.

46. It is further alleged that during the course of one or more consultations the applicant engaged in conduct which was inappropriate and/or unnecessary for treating the patient. These allegations are set out in the marked up notice of hearing paragraph 4 and are described as follows:

"At Burwood between 1 January 1996 and 9 November 1999 during the course of one or more consultations you were engaged in conduct that was inappropriate and/or unnecessary for treating your patient, Ms P. Particulars -

1 You asked Ms P to describe in detail sexual acts she had performed

2. You did so without indicating how that information was relevant to your treatment of her.

3. You asked her to remove one or more layers of clothing.

4. You told her how she could get in touch with her body.

6. When she was lying on the floor you tapped her or pricked her with a pin.

7. After she told you she thought bugs were infesting her body you -

b. told her you were telling the bugs to go to one place in her body

47. The Tribunal intends to deal with allegations 1 and 2 together. The applicant concedes that he asked Ms P to describe detailed sexual activities that she had performed and did so without indicating how that information was relevant to her treatment. The sexual acts related to assaults by her brother upon her initially. It appears that only later in her treatment did she describe other sexual acts which she performed for drugs. Ms P in evidence conceded that the applicant was asking her about her history and getting her to talk about past problems. She said she felt that this was helpful. Dr Hacker agreed that such conduct if done properly is an accepted technique. She said, however, it must be planned. It must be done carefully and as a matter of degree. She indicated it depends upon the level of disturbance of the patient and this will determine its therapeutic benefit. It also depends upon whether the plaintiff wants to relate such a history. In fact, this type of therapy was precisely that which was adopted by Dr Miller who was Ms P's subsequent psychiatrist.

48. The Tribunal finds that the applicant's conduct indicates a lack of professional therapeutic planning. At no time was the patient informed as to why such information was being sought or acquired. This was a matter which was dealt with by Dr Hacker in her evidence. The Tribunal regards this failure on the part of the applicant during the therapy as demonstrating poor judgment. It represents a lack of professional expertise in dealing with a complicated and vulnerable patient who could suffer adverse consequences in the absence of an appropriate explanation conveyed in a timely manner. However, we do regard such conduct when viewed in isolation as being professional misconduct but not of a serious nature.

49. The reference to layering is one which the Tribunal finds to be in the same category. The request by the applicant that she remove layers of clothing is one which Dr Hacker concedes would not be inappropriate for a medical practitioner to suggest to a patient. The suggestion to remove layers of clothing can be seen as a device to indicate to the patient that there is no harm in removing that clothing. The Tribunal notes that in fact this conduct was one which Ms P engaged in since her schooldays and was not something which was initiated by the applicant. There was a suggestion that such conduct on the part of Ms P was designed to protect her from a predatory psychiatrist and indeed she gave evidence along those lines before the Panel but it would appear that she retracted that aspect of her evidence. Again, Dr Hacker criticised this aspect of behaviour from a professional point of view. It is noted that Ms P did not complain to Dr Miller of this conduct. Dr Hacker's criticism is that such a method should reduce the patient's anxiety rather than increase it (as it did at times) and that the applicant was not organised and that it appeared the patient was not in charge. She said there was no real awareness of the risk being run by this conduct.

50. The Tribunal on the evidence can only conclude such conduct as non-predatory and again, as so often applies with the applicant, probably represents inappropriate and poorly planned treatment. It demonstrates, in the Tribunal's view, a lack of judgment and planning and is misconduct not of a serious nature when viewed in isolation.

51. We return to the other aspects of the treatment, namely paragraphs 4, 5 and 6. Dr Hacker thought that asking Ms P to touch herself may be an appropriate process as part of the treatment but again that there was the lack of a clearly therapeutic plan. Similarly, the use of a pin to determine the issue of sensory loss should not be performed except by a psychological therapist in an emergency situation. Dr Hacker said that Ms P should have been referred to a GP or a neurologist if such a physical examination was to take place. These activities, which included getting her to lie on the floor are, when viewed in isolation, professional misconduct which is of a lesser standard than that which might reasonably be expected of a medical practitioner by his peers but we would not regard it to be of a serious nature.

52. Insofar as the reference to bugs and their removal from one part of the body to another is concerned, we note that this was a suggestion carried out under hypnosis. Dr Hacker thought that such a process could work very briefly but is not curative. Nor could Dr Hacker really understand what the bugs were about and as she had not had the advantage of examining Ms P she was unable to take the matter any further. Finally, there does not appear to be any finding by the Panel as to this and the Tribunal accordingly will make no finding as to this aspect of the allegations.

53. Finally, the allegation is that the applicant failed to properly manage termination of the doctor/patient relationship.

54. In fact the Tribunal was handed a copy of a referral dated 22 October 1999 where Ms P was referred to an activity-based counselling program at Delmont Hospital. It is obvious, however, that the gravamen of this complaint was a failure to refer her to a psychiatrist or to a general practitioner who could properly arrange her ongoing treatment. Clearly the applicant thought that she would not agree to be referred to another GP for treatment. We conclude that given this young girl's background and the cessation of her treatment which had taken place over a considerable period of time, that to simply refer her to a group program at the Delmont Private Hospital was quite inadequate, and such conduct would be judged by professional peers as such. The Tribunal is of the view that given Ms P's general history and, in particular her vulnerability and the various matters we have mentioned, she should have been treated in a professional manner which recognised her complex problems and risk. She should have been referred to a skilled psychological therapist in an appropriate and professionally accepted manner. We regard what took place as not simply a misjudgement on the part of the applicant but was professional misconduct which we regard as being of a serious nature.

55. We have dealt rather reluctantly with these specific issues individually rather than globally. However, when we deal with the appropriate penalty we propose to consider each finding in a global sense and we make the observations that they demonstrate, in our view, a considerable degree of incompetence and unprofessional conduct whether judged by the applicant's peers or the public in general.

56. We have been asked by counsel for both parties to make findings as to the seriousness of the allegations which have been made and we have done so. We shall now hear from the parties as to the appropriate disposition which we should adopt having regard to the various adverse findings referred to above.

57. The Tribunal refers to paragraph 56 of our reasons. We have now had the opportunity to hear from both the applicant and the respondent with regard to the appropriate disposition and we now do so.

58. The Tribunal in this matter has made very serious findings against the applicant in the course of his practice as a psychiatrist. They include two patients of the applicant in respect of which we find that he engaged in unprofessional conduct of a serious nature. Furthermore we find that he has been guilty of various activities which amount to unprofessional conduct although not of a serious nature. Our findings are such that those latter activities demonstrate poor professional judgment, a significant lack of therapeutic planning and expertise. The applicant has not followed the explicit codes of behaviour expected from all medical practitioners in this State and particularly of consultant psychiatrists where his own College has explicitly and clearly stated that the conduct engaged in by him was unethical and likely to cause harm to his patients. We do not believe he is a fit person to carry on practice either as a medical practitioner generally or as a consultant psychiatrist. Our view is reinforced by a previous finding of the Medical Practitioners' Board who suspended his registration on 20 January 1992 for a period of nine months in circumstances where he engaged in sexual activities with a patient. We note that this was his first attendance before the Board. The current matters indicate he has a pre-disposition to further offending and there has been a failure to deter him from doing so.

59. We have heard plea material from Mr Morrison suggesting that he be granted registration with conditions which would limit his practice to deal only with male patients. We have also read material which has been filed which deals with his past good character.

60. We have also given consideration to a number of cases which were provided by Mr Morrison. Each case, of course, depends upon its own facts. We agree that his conduct could be such to be of a kind that a disposition other than cancellation would be open.

61. However, having considered all of the matters, our response is brief. We concur with the sentiments in the Litchfield decision where at p.639 paragraph (f) Gleeson CJ (as he then was) said as follows:

"The majority thus found that the appellant could not be trusted to observe proper professional standards in his conduct towards female patients unless a female chaperone was present throughout. With the greatest of respect the necessity of imposing such a condition upon the appellant's registration demonstrates that he is unfit to practise medicine."

62. The Tribunal finds that the applicant's behaviour and professional standards falls within that category. To impose the condition suggested by Mr Morrison that he only treat male patients in our view clearly demonstrates that he is unfit to practise as a medical practitioner.

63. We therefore uphold the decision that his registration be cancelled and the decision of the Panel appointed by the Medical Practitioners' Board of Victoria is affirmed.

64. We reserve the question of cost and grant liberty to apply.

Medical Practitioners' Act 1994

Pettiford v Medical Practitioner's Board of Victoria [2003] VCAT 940

At a glance

Court

Decision date

Before

Source

Judgment (128 paragraphs)

Pettiford v Medical Practitioner's Board of Victoria [2003] VCAT 940 (11 April 2003)

Parties

Legislation Cited (2)

Cases Cited (1)