The decision of the Medical Practitioners Board made on 26 October 2004 to cancel the registration of the applicant and to disqualify him from re-applying for registration before 1 January 2007, and to reprimand him, is affirmed.

1 By application for review filed with the Tribunal on 18 November 2004, Alan Storti (the applicant) sought to review a decision made on 26 October 2004 by a Panel of the Medical Practitioners Board of Victoria (the Board) to cancel his registration pursuant to s 45A(2)(h) of the Medical Practice Act 1994 (the Act).

2 The decision of the Board was as follows :

•

Pursuant to s 45A(2)(c) of the Medical Practice Act 1994 Dr Storti is reprimanded for entering into an inappropriate personal relationship with a former patient and thereafter a sexual relationship, for dishonest writing of prescriptions of codeine-containing drugs and benzodiazepines and writing an abusive, intimidatory communication to a witness in pending proceedings before the Board.

•

Pursuant to s 45A(2)(h) of the Act Dr Storti's registration is cancelled as of 1 December 2004.

•

Pursuant to s 45A(2)(h)(i) of the Act Dr Storti is disqualified from reapplying for registration before 1 January 2007.

3 The former patient referred to in the Board's decision will be identified in these reasons for decision as "BS".

4 In the proceedings before the Tribunal and before the Board the applicant did not contest the following allegations against him contained in an Amended Notice of Formal Hearing (Amended Notice) dated 30 September 2004 :

That you engaged in unprofessional conduct within the meaning of paragraphs 3(1)(a) and/or (b) and/or (c) and/or (d) of the definition of 'unprofessional conduct' in the Act in that :

(a)

Between 1 September 2002 and 25 October 2002, during the course of professional consultations with your patient, BS, you developed an inappropriate personal relationship with BS, that later progressed to a sexual relationship.

(b)

Between January 2003 and to a date unknown, you had a sexual relationship with your patient and/or former patient, BS, after purporting to terminate the doctor/patient relationship by referring BS to Dr Campbell.

(c)

Between October 2002 and March 2003, you wrote love letters and notes and gave newspaper clippings, which indicated your love and affection to your patient and/or former patient, BS.

(d)

On or about 16 November 2002, in breach of the Drugs, Poisons and Controlled Substances Act 1981, you wrote a prescription in the name of BS's husband for Valium 5 mg tablets 50 in circumstances where you provided the prescription to your patient and/or former patient, BS.

(e)

On or about 9 January 2003, in breach of the Drugs, Poisons and Controlled Substances Act 1981, you wrote a prescription in the name of BS's husband for Valium 5 mg tablets, 50 and for Panadeine Forte 50 tablets in circumstances where you provided the prescription to your patient and/or former patient, BS.

(f)

On or about 14 January 2003, in breach of the Drugs, Poisons and Controlled Substances Act 1981, you wrote a prescription in the name of BS's husband for Valium 5 mg tablets, 50 and for Panadeine Forte 50 tablets in circumstances where you provided the prescription to your patient and/or former patient, BS.

(g)

On or about 24 January 2003, in breach of the Drugs, Poisons and Controlled Substances Act 1981, you wrote a prescription in the name of BS's husband for Valium 5 mg tablets, 50 and for Panadeine Forte 50 tablets in circumstances where you provided the prescription to your patient and/or former patient, BS.

(h)

On or about 21 February 2003, in breach of the Drugs, Poisons and Controlled Substances Act 1981, you wrote a prescription in the name of BS's husband for Valium 5 mg tablets, 50 and for Panadeine Forte 50 tablets in circumstances where you provided the prescription to your patient and/or former patient, BS.

(i)

Between 3 February 2003 and 20 November 2003, you did behave inappropriately to BS in circumstances where you knew the Board was investigating your professional conduct in respect of your patient and/or former patient, BS in that you :

(i) wrote a note to BS stating, 'where the fuck are you? You better get to room 24, 13th floor 525 Lonsdale St, Melbourne by 2pm or else?

5 The Board in its reasons for decision of 26 October 2004 found that the applicant engaged in unprofessional conduct of a serious nature, namely professional misconduct and it made findings of fact that reflected the allegations in the Amended Notice. Mr Wilson, counsel for the applicant indicated in the proceedings before me that the applicant sought to review the penalty imposed by the Board whereby his registration was cancelled and he was precluded from reapplying for registration before 1 January 2007.

6 Nonetheless, his written and oral submissions indicated that the applicant disputed certain findings of the Board. Those findings were contained in paragraph 46 of the Board's reasons for decision and were that BS was very vulnerable and that [ the applicant_] exploited that vulnerability_ and that the applicant provided her with counselling and support over a lengthy period. An issue also arose as to the extent of the personal relationship that had developed between the applicant and BS prior to the cessation of their doctor/patient relationship. I will return to those matters later.

7 The applicant is aged 51 years. He graduated from the University of Melbourne with a degree of MBBS in 1977. He commenced practice in Drouin as a registered medical practitioner in 1981. In 1991 he pleaded guilty to a charge of indecent behaviour in the County Court of Victoria and he received a three year good behaviour bond. He was at that time married with 2 children. He and his wife have since separated. In 1992 he commenced to practise as a sole practitioner in Drouin. In 1991 and 2001 he appeared before the Board and on both occasions he was found guilty of professional misconduct. Particulars of that conduct are referred to later in these reasons.

8 Between July 1991 and October 2002, he treated a female patient, BS. In September or October 2002, the applicant met with his colleague, Dr Campbell, and told him he had developed feelings for BS. Dr Campbell took over the treatment of BS on or about 21 October 2002. At that time BS was married with three children. She and her husband separated in about March 2003.

9 The applicant's conduct in relation to BS first came to the notice of the Board by letter dated 23 December 2002 to the Board from Dr Campbell. In the letter Dr Campbell said that he had been asked by BS to inform the Board of the behaviour of the applicant towards her. He said :

[BS] has previously been a patient of Dr Storti and recently he has been in frequent contact with her in person and by phone and letter wherein he professes his love for her. She states that she has asked him to refrain from this behaviour but he has ignored this request. She has provided me with several letters in Dr Storti's handwriting, however she has asked me not to forward them to the board until she has had further discussion with her husband. I have informed Dr Storti on a number of occasions that his behaviour is professionally unacceptable.

10 At a meeting of the Board on 6 March 2003, following receipt by the Board of Dr Campbell's letter referred to above, the applicant was asked to attend in order to show cause why his registration should not be suspended pursuant to s 27(1) of the Act pending a formal hearing into his professional conduct. The applicant attended the meeting with his counsel, Mr Wilson. In answer to the questions asked of him by members of the Board present at the meeting, the applicant said that in October/November 2002, he referred BS to Dr Campbell as he had become aware over the preceding few weeks I was developing an emotional attraction to her and I was attracted to her and I realised that you ... can't treat a patient who you are in love with and that I admitted that I was falling in love with her so that, as soon as I was aware of those dealings, I made it known to her that I couldn't treat her any longer, and so then I arranged for her to see one of my colleagues.

11 The applicant told the Board that the first time he went out with BS was at Christmas 2002 and that he developed a sexual relationship with her towards the end of January 2003. He said that BS saw him daily and the plan was that she and her nine year old son would move in with him.

12 On 12 March 2003, the Board informed the applicant it had determined not to suspend his registration pending a formal hearing. On 20 October 2003, the matter came before a formal hearing of the Board. The Notice of Formal hearing set out a number of allegations in connection with his relationship with BS. It appears that on that day, the applicant offered to plead guilty to the allegations in the Notice of Formal Hearing subject to date changes, but this offer was refused by the Board because counsel assisting the Board, Ms Dixon, wanted BS to give evidence as it was anticipated that further allegations would arise from such evidence.

13 BS gave sworn evidence before the Board over a lengthy period. Her evidence included that in June 2002 (some three or four months before he ceased treating her), the applicant started writing her letters telling her she was beautiful and that he loved her. She said some of the letters were left by him on her front door, some he gave to her at her home and others were left in the mail box. She said that on most occasions when he delivered the letters, she would hide and not open the door. She said there were occasions when she went to Pakenham to her mother's home and her husband would return home before she did and he would find the letters which the applicant left at the door. She said that this occurred in August/ September 2002. She said she kept telling the applicant to stop coming to her home and leaving letters.

14 BS gave evidence that at the time the applicant sent her a letter dated 16 March 2003 (referred to in allegation (c) in the Amended Notice), she was depressed and she wanted to commit suicide because her husband had left and taken her son. She said that the applicant told her that if the Board asked her about the letters he sent her he should say he gave them to her after he sent her to Dr Campbell. She also gave evidence that the applicant wanted her to see his solicitors and lie and say she lived with him and that they were in love.

15 BS said in evidence that prior to the applicant sending her the note which is the subject of allegation (i) he broke the front window of her door because she would not speak with him about the proceedings before the Board. She described an occasion three or four months prior to the hearing of 20 October 2003 when he came into the house, threw her on the bed and pinned her down.

16 Dr Campbell, in an affidavit sworn 15 July 2003 and provided to the Board said that around September/October 2002, the applicant telephoned him and advised him he had something important to discuss with him. They met within a few days and had a conversation during which the applicant told him he had fallen in love with BS. Dr Campbell said that during the conversation he asked the applicant whether he had had sexual intercourse with BS and BS told him that he had not but said that they had slept together the day before but that they had not had sexual intercourse. Dr Campbell said that the applicant did not mention any other physical contact he had had with BS but that it was clear to me that he had discussed his feelings with her.

17 At the conclusion of the first day's hearing before the Board, the hearing was adjourned and not resumed until approximately a year later on 26 October 2004. On the resumed date counsel for the applicant indicated that the allegations in the Amended Notice (prepared subsequent to the first day of hearing) were not contested. The applicant did not give evidence but his counsel called evidence from Dr Fitzgerald, a general practitioner from Traralgon who said that the applicant enjoyed a good reputation as a doctor in the district and that as Drouin was an area of need, he would be very difficult to replace. The Board also heard evidence from Ms Van Hoof, Ms Scroup and Mr Crook, patients of the applicant who had travelled considerable distances to give evidence for him. It also received a series of letters from patients of the applicant in and around Drouin including from a person employed part-time as his receptionist. The Board had before it the affidavit by Dr Campbell sworn on 15 July 2003, an affidavit by BS's husband sworn 23 January 2004, and affidavit by BS's daughter sworn 19 February 2004, and letters, notes and news clippings referred to in the Amended Notice.

18 The reasons for decision for the Board dated 26 October 2004 set out the following findings :

The Panel finds all allegations in the amended Notice of Formal Hearing established and that in respect of each one of them Dr Storti's conduct amounts to unprofessional conduct of a serious nature, namely professional misconduct, as it is behaviour that would be regarded by peers of good repute and competency as disgraceful, dishonourable, worthy of strong reprobation and substantially falling short of the professional standards expected of a registered medical practitioner.

19 There had been two previous decisions of panels of the Board in relation to the applicant. The Board at paragraphs 23 to 28 of its reasons for decision gave the following description of those proceedings :

The first was a hearing in which Dr Storti admitted having indecently exposed himself on six occasions in 1989-1990 before three members of his staff at the Drouin Medical Centre and one of inappropriate conduct with a patient. With respect to the latter he was found to have brought his body closer than was proper or necessary to a female patient in 1988 who was partially undressed for the purposes of an examination of a mole on her bra-line and shortly thereafter to have asked her on two occasions to kiss him. The patient swore that Dr Storti stood very close to her back 'sort of breathing down my neck' and when asked what he was doing responded, 'You know I've fancied you for a long time, how about a kiss, just one kiss'. She immediately upbraided him but, not deterred, he asked again for a kiss. She declined treatment from him and reported being 'very shaken'.

Dr Storti was found to have engaged in seven instances of professional misconduct. For the inappropriate behaviour with his patient he was reprimanded and otherwise received a condition on his registration that he receive treatment from the psychiatrist, Dr Serry. Dr Serry gave evidence before the Board in 1991. He continued to treat Dr Storti until 1994 when Dr Storti ceased treatment.

The second appearance of Dr Storti before a panel of the Board was in 2001. ... The Panel found that Dr Storti had engaged in professional misconduct in two respects in that he had exposed his penis in view of his receptionist, Ms H, on or about 22 February 1994 and then on 31 July 2000 in view of his receptionist Ms B. In respect of the latter matter a magistrates' court found him guilty of wilful and obscene exposure in public and without conviction, adjourned the proceedings for 12 months upon Dr Storti giving an undertaking to be of good behaviour during that period. ....

In respect of these matters Dr Storti wrote to the Board that his behaviour had not involved his patients and that he did not believe that his patients were at any risk from him. A report by Dr Pathe, psychiatrist, opined that Dr Storti appeared not to have engaged more generally in acts of sexual deviancy and that he had regarded his deviant behaviour as entirely impulsive and without much sexual gratification. She commented that: 'Dr Storti impresses as a man who well appreciates he had far too much to lose in life by continuing to deny his problems and his responsibility for these. His apparent motivation for treatment, intelligence, lack of psychopathic character traits, some degree of victim empathy and the circumstances and frequency of relapses of his behaviour, point to an encouraging prognosis'.

Dr Storti gave evidence to the previous Panel and 'made it absolutely clear that he understood that if he were to re-offend in any way it would be 'the end of the road' for him as a medical practitioner'. The Panel concluded that Dr Storti needed further treatment and placed reliance on Professor Ball's assessment that there was a 'minimal risk' of a recurrence of Dr Storti's behaviour. ....

20 The material before me included a transcript of the hearing before the Board on 24 August 2001 (the previous Board) and the previous Board's reasons for decision. This was the occasion of the applicant's second appearance before the previous Board referred to by that Board in its reasons for decision. The previous Board referred to the expert evidence provided by Dr Pathe and the applicant's treating psychiatrist Professor Ball, and stated that it believed that the applicant's aberrant behaviour needed further treatment rather than further punishment. The previous Board expressed the view that the applicant should be allowed to continue to practice particularly in light of the optimistic report provided by Dr Pathe and Professor Ball. The Board went on to say :

The panel is also of the opinion that Professor Ball is a specialist in the field of aberrant and deviant sexual behaviour and has the requisite skills to apply appropriate treatment strategies, and there is already evidence that Dr Storti is benefiting from these. The panel notes Professor Ball's statement as set out above that in his opinion there is 'minimal risk' of a recurrence of Dr Storti's behaviour.

21 The reasons for decision of the previous Board indicate that it cautioned and reprimanded the applicant and imposed conditions on him which included that he continue treatment from Professor Richard Ball or in his absence another Board-approved psychiatrist, and that it be provided with reports from Professor Ball on a 3-monthly basis for the first 12 months and thereafter as determined by the Board. It is not clear if Professor Ball provided those reports but they were not tendered in evidence before me, or, it would appear, before the Board at the hearing the subject of his present misconduct.

22 "Unprofessional conduct" is defined in s 3 of the Act. For the present purposes the following part of the definition is relevant :

"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; or

(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

45A. Finding and determinations of a formal hearing into conduct

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

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

(c) the practitioner has not engaged in unprofessional conduct.

(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 and complete specified further education within a specified period;

(e) impose any condition, limitation or restriction on the registration of the practitioner;

(f) impose a fine on the practitioner of not more than $2000;

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

(i) disqualify the practitioner from applying for registration under section 5 within a specified period if the practitioner's registration is cancelled by the Board or by a medical registration authority of another State or Territory of the Commonwealth or of New Zealand.

24 Section 60 of the Act permits the applicant to seek a review of the Board's decision by the Tribunal.

25 The hearing before the Tribunal is by way of a re-hearing or hearing de novo without any presumption as to the correctness of the decision under review (see McDonald v Guardianship and Administration Board [1993] VicRp 36; [1993] 1 VR 521 at 528). It is appropriate for the Tribunal upon review to consider all of the evidence before the Board and any fresh material relied on by the parties.

26 In the proceedings before the Tribunal, both parties relied on the four volumes of material filed by the Board pursuant to s 49 of the Victorian Civil and Administrative Tribunal Act 1998. The material included the material before the Board when it conducted its hearing and a transcript of the hearing.

27 The applicant did not give evidence before me. However, in addition to the material before the Board he relied on a letter from Ms Dot Mullett, Aboriginal Hospital Liaison Officer for West Gippsland Healthcare Group and a petition signed by some 600 residents of Drouin. Ms Mullett said in her letter that she had been employed for the past 19 years as the liaison between Aboriginal communities and health professional within the Baw Baw area and that most of her clients were also the applicant's patients. She said that the applicant has a better understanding (sic)of the Aboriginal culture and health needs and a very good relationship with his Aboriginal patients. She said that the Aboriginal community was finding it very difficult to find another doctor with understanding and consideration of Aboriginal patients and that it was important to have a doctor like the applicant within the area. The signatories to the petition expressed utter amazement and disappointment in relation to the penalty imposed on the applicant by the Board. They stated that a lot of his patients were elderly and now very worried about health care being withdrawn from them and they referred to him as a very competent and caring family doctor.

28 The Tribunal also received a letter from Mr and Mrs Poulton who live in Drouin. They spoke highly of the applicant and said that he was welcoming courteous and business like in his approach. They said there had been no hint of impropriety, that he listened attentively to their concerns and questions and explained clearly his assessment. They referred to his competent, caring oversight of their health and said that they had full confidence in his professional integrity. The Tribunal also received a letter from Mr and Mrs Adams of Drouin. They said they found the applicant to be a very caring and diligent doctor and probably the best that they had been treated by. They said if the applicant was suspended, they would resume as his patient as soon as they could. They expressed concern as to the effect of the threat of suspension on the applicant and his family and they expressed the view that the length of the suspension was unwarranted and vindictive.

29 At the conclusion of the hearing it became apparent that Mr Crook, a former patient of the applicant, wished to give evidence for the applicant. He had travelled from Drouin for the hearing and he had previously given evidence before the Board. He was given leave to give viva voce evidence and during his evidence he said that he had been a patient of the applicant since 1978. He referred to the difficulty in obtaining appointments with other doctors in the area and he spoke of his confidence in the applicant. He agreed that the applicant now had a locum in his surgery but he said that the locum had not been in the area that long and that the applicant knew his patients' histories and the senior citizens of the area were confident in him.

30 In his written submissions Mr Wilson argued the more serious the misconduct, the more likely the interest of the public dictated removal of a medical practitioner from the register. He submitted that the relationship between the applicant and BS was at the lesser end of the spectrum, the other end being the psychiatrist/patient relationship where the psychiatrist had delved deeply into the emotional life of the patient. He argued that there could be no suggestion that the applicant preyed on BS in the sense of a predator on a vulnerable patient and he referred to her evidence before the Board that the applicant was utterly professional towards her when he treated her. Further, he argued that BS's evidence before the Board, particularly in relation to her repeated denials that a sexual relationship existed with the applicant, did not suggest she was a particularly vulnerable patient. [This was in the context of the applicant conceding the correctness of the allegation in the Amended Notice that they had a sexual relationship between January 2003 and a date unknown].

31 Mr Wilson said that in about September/October 2002 the applicant found himself developing romantic feelings towards BS and that such feelings had not existed before this time. He asserted that this was clearly a case of a doctor suddenly developing romantic feelings towards a patient after a long period of treatment. Dr Storti appreciated the pitfalls of the situation and referred BS to Dr Campbell. He said that Dr Storti clearly had insight into the need to put distance between the doctor-patient relationship in his personal feelings towards her. He said that the applicant should not have pursued those feelings after referral but affairs of the heart run irrational and perilous courses and that is what happened here.

32 Mr Wilson submitted that the applicant's plea of guilty before the Board without cross-examination of BS once the Notice of Formal hearing had been finalised and the plea of guilty at the reconvened hearing in the face of BS's denials that they had a sexual relationship was reflective of remorse and insight that what he had done was wrong, despite the denials of BS. He said that the applicant had never sought to suggest that he was not solely responsible and to blame for the sexual relationship.

33 He submitted that the past findings against the applicant of unprofessional conduct involved sexual impropriety. In the present case, it is a relationship between two adult consenting persons and that the problem for Dr Storti has been generated entirely by romantic feelings towards the patient and his acting on those feelings and [BS] obviously responding to those romantic feelings.

34 Mr Wilson, in arguing that there was financial hardship in the Board's decision, stated :

• The cancellation of Dr Storti's registration is for an indeterminate time. Dr Storti is currently aged 51 years and has no other qualification other than his medical registration. He has conducted a sole practice in Drouin since 1992. The practice had approximately 3,000 patients 'on the books' mostly older patients. Dr Storti also saw most of the Koori population in the Drouin area. There is no Koori clinic in the area. Dr Storti was also on the roster as a visiting medical officer at the local hospital and had been for approximately twenty years. The roster works on a week about basis and usually involves about one call per night. There has been general difficulty in getting doctors to perform this task in the area. In 1982 when Dr Storti first went to the area there were about ten on the roster currently there are now six.

• Since de-registration Dr Storti has prevailed upon his locum (a female overseas registered doctor) who previously worked six sessions a week in his practice but now works nine sessions a week in the practice. This is a very tentative arrangement. Locums are almost impossible to obtain. In fact when Dr Storti's current locum went on holidays in January 2004, he was unable to obtain a replacement locum.

• The current fee arrangement with the locum is that the locum is paid 60% of the total fees that she generates. The remaining 40% equates to approximately $3,000 gross per week. From this amount of money Dr Storti must meet all practice overheads and support his wife and children from whom he is separated. His children are aged eighteen years and thirteen years. The eighteen year old student is a first year aviation student which requires Dr Storti to meet some $58,000 in fees over and above the HECCS component. The thirteen year old is in Year 8 at a private school. Dr Storti lives in rented accommodation himself.

• Dr Storti believes that he may be able to hang on for up to twelve months by utilisation of savings and sale of assets. Thereafter he will not be able to sustain the practice and be financially ruined.

• If the period that Dr Storti is unable to practice for is defined he has more chance of being able to sustain the practice. If the period is open ended, as it currently is, he has no chance of keeping it going. The reality is that Dr Storti has incurred, and is continuing to incur, a massive fine on top of this cancellation. His financial situation is precarious but with an indeterminate period of cancellation it will be ruinous. Protection of the public interest and maintaining of standards of the profession do not call for such an outcome for Dr Storti for these offences.

• The period of cancellation is for an indeterminate period of time. There is no guarantee that Dr Storti will be able to become re-registered shortly after or at any time after January 2007. The difficulty for him is after such a long period of cancellation establishing to the satisfaction of the Medical Practitioners Board that he is technically capable of returning to practice. Further, to be re-instated he must demonstrate under s 7 of the Act that he is of good character. Once a character is stained it is difficult to re-establish good character.

• Dr Storti has a significant patient following in Drouin. A group of patients spontaneously took up a petition for him subsequent to the Medical Practitioners Board hearing. Between November 2004 and January 2005 some 600 patients signed the petition.

• Patients travelled to Melbourne and gave evidence for Dr Storti at the hearing and the Tribunal is referred to the evidence at T 156 to T168.

• Drouin has a population of some 5,000 people. Warrigal has some 12,000 people and there are of course the surrounding areas. Drouin has four doctors and the area is generally poorly served with medical facilities.

35 In his oral submissions Mr Wilson said his primary submission in relation to an appropriate penalty was that a period of suspension of up to another seven months (making a total of 12 months) would adequately protect the public interest. He argued the protection of the public embraced using and retaining the professional skills of medical practitioners, particularly in country areas, where those resources were scarce. The public interest embraced the interest of the applicant's approximately 3,000 patients and, in particular, the 600 patients that appeared on the petition. He said that the applicant could probably keep his practice going if there was a definitive period of suspension of up to 12 months as this would keep the patient base intact and allow him to return to them at the end of a specific suspension period.

36 He submitted that against the maintenance and integrity of the standards of the profession, there must be weighed the applicant's right to earn a living. He had no other skill and with an indeterminate period of cancellation there was a strong likelihood he would never be able to return to practice. This was a grossly unfair penalty given the level of impropriety involved in the offences. He submitted there was no inappropriate behaviour in the intervening period between when the offences occurred in January 2003 and October 2004 which was the second day of hearing.

37 He argued that the Board had imposed the most severe punishment it was empowered to impose. It was indeterminate punishment without guarantee of reinstatement and would almost certainly lead to his financial ruin and his patients would lose their doctor. He submitted that the penalty went beyond any need to protect the public and maintain the standard of the profession, bearing in mind the level of impropriety in the offences.

38 It was submitted by Ms Dixon, on behalf of the Board, that the absence of any report from Professor Ball was a significant matter that should be taken into account by the Tribunal. She said that before the Board, the applicant's counsel tried to make something of the fact that Professor Ball was required to provide reports to the Board. However, the panel of the Board conducting the hearing did not receive copies of the reports provided to the Board from which they might find some comfort. She argued that it was open for the applicant to make the reports available to the Board and to the Tribunal, particularly as Professor Ball might have been in a very good position to comment as to the applicant's insight into his conduct.

39 She said it was conceded that the applicant had pleaded guilty and this was to his credit. However, this did not mean he was remorseful or that he recognised the wrongfulness of what he had done or demonstrated insight, and the Tribunal might form the view that the guilty plea was a forensic decision.

40 In relation to Mr Wilson's submission as to the consensual nature of the relationship, Ms Dixon referred to evidence of BS before the Board that she was pressured by the applicant to say the relationship was happy and consensual. Ms Dixon referred to the evidence of BS as to the circumstances in which she received letters from the applicant that were stuck on the front door of the home in which she was living with her husband and son. She submitted that one might conclude there was a campaign by the applicant to destabilise her marriage in circumstances where BS said she was not happy at the way he left the notes. She also referred to an affidavit sworn by BS's daughter where she said that the applicant would telephone BS up to 4 times per day.

41 It is necessary for me to make findings of fact in relation to the following matters in the light of Mr Wilson's submissions generally and his indication as to the factual matters in issue :

•

whether BS was a vulnerable person and whether that vulnerability was exploited by the applicant, as found by the Board, and

•

whether the applicant provided BS with counselling and support over a lengthy period as found by the Board and

•

the point in time at which the applicant developed an inappropriate relationship with BS.

42 BS was the only person who gave sworn evidence as to those matters. The applicant elected not to test her evidence by cross examining her before the Board. The applicant also elected not to give evidence before the Board or the Tribunal.

43 The applicant's failure to give evidence before the Board might be explicable on the basis that he pleaded guilty to the allegations against him which confined the development of an inappropriate relationship with BS to between 1 September 2002 and 25 October 2002 in circumstances where he ceased treating her in October 2003. He had also given some details of his relationship with BS to the Board at the meeting of the Board on 6 March 2003 although BS's subsequent evidence before the Board in relation to the nature of their personal relationship prior to her being referred to Dr Campbell put him on notice that his version was disputed. He had told the Board in effect that he referred BS to Dr Campbell a few weeks after realising he was attracted to her (in October 2002), thereby acting promptly in ceasing their therapeutic relationship. BS said in evidence that he started sending her letters telling her he loved her in June 2002.

44 The failure of the applicant to give evidence before the Tribunal to refute BS's evidence on these and others matters is less explicable. It was open to the Tribunal to make findings of fact which did not accord with the Board's findings or with the factual background underpinning Mr Wilson's submissions as to penalty.

45 In the circumstances outlined above I have accepted the sworn evidence of BS before the Board where it relates to those factual matters referred to in paragraph 41 above, there being no sworn evidence or other persuasive evidence to the contrary. I have not made findings in relation to other aspects of BS's evidence before the Board given it was unnecessary for the purpose of dealing with the submissions and I have not had regard to that evidence in considering the question of penalty. That evidence included her assertions that the applicant told her to lie to the Board, and the matters referred to in paragraph 15 of these reasons.

46 I am satisfied that BS was in a vulnerable condition at the time the applicant treated her by virtue of the variety of physical and psychological symptoms from which she suffered. The applicant variously recorded in his clinical notes for BS that she was depressed, she had an anxiety state, she had neurotic fears and on one occasion he described her as mildly paranoid. She was a victim of several transport accidents and she suffered from a pain condition. The applicant gave her regular prescriptions for such drugs as Valium and Panadeine Forte, and it is apparent from BS's medical file that she was admitted to West Gippsland Hospital in 1996 with the principal diagnosis being withdrawal from Codral Forte in the context of a nine year addiction to the drug.

47 I am also satisfied that the applicant exploited B's vulnerability by professing his love for her, and subsequently entering into a sexual relationship with her in about January 2004 in the knowledge of her physical and psychological symptoms and against the background of their therapeutic relationship.

48 Mr Wilson asked me to find that the applicant did not provide counselling and support to BS, contrary to the Board's finding that he did so over a lengthy period, presumably to support his submission that the applicant's conduct was not as serious as might be the case involving a treating psychiatrist or psychologist and a patient. I accept that the applicant did not provide support and counselling of that nature. However, I am satisfied that the applicant gave her medical advice and support in relation to her medical issues over the long period he treated her, including treatment, referrals to other doctors and arranging numerous investigations for her.

49 Mr Wilson argued that BS's evidence before the Board, particularly in relation to her denial that a sexual relationship existed with the applicant, did not suggest she was a particularly vulnerable person. However, as Ms Dixon argued, her denial may have been explicable by the fact that she was concerned about her husband's reaction to an admission of such a relationship in light of her evidence that she was still hoping to reconcile with her husband. Although my findings are in no way dependent on the Board's findings, it is of some significance, in my view that the Board, comprising 2 medical practitioners, and with the advantage of hearing evidence from and seeing BS formed the view that she was a vulnerable person.

50 The applicant did not dispute that between 1 September 2002 and 25 October 2002 during the course of professional consultations with BS he developed an inappropriate personal relationship with her as specified in the allegations in the Amended Notice. The Board did not make a specific finding of fact as to the nature of the applicant's behaviour towards BS whilst he was still treating her although it noted her evidence at paragraph 5 of its reasons that she told the panel that around June 2002 her relationship of patient and doctor with Dr Storti started to change when he commenced to write her love letters and to telephone her at home. She indicated that from her point of view this was not a welcome development. Further, the Board's decision does not indicate that it made a finding of fact that an inappropriate relationship commenced prior to the cessation of the therapeutic relationship between the applicant and BS.

51 The nature of the applicant's behaviour towards BS prior to BS ceasing to be his patient in October 2002 and his state of mind at that time is relevant in the context of Mr Wilson's submissions that the applicant suddenly developed feelings for BS in September /October 2002, that he appreciated the pitfalls of the situation and referred BS to Dr Campbell and that such actions demonstrated insight on the part of the applicant. That submission was consistent with the applicant's assertion before the meeting of the Board on 6 March 2003 that he referred her to Dr Campbell as he had become aware over the preceding few weeks he was developing an emotional attraction to her. The submission also accorded with the submission of the applicant's counsel before the Board disputing Ms Dixon's submission to the Board that an inappropriate personal relationship began as early as 1 September 2002.

52 I am satisfied from BS's evidence that the applicant sought a relationship with her that went beyond the boundaries of a doctor/patient relationship at least several months prior to their therapeutic relationship ceasing. Her evidence, referred to earlier included that he started writing her love letters in June 2002. This evidence satisfies me that the applicant failed to act promptly in ceasing the therapeutic relationship with BS when he realised he had feelings for her, and that he acted on those feelings whilst he was treating her. He also treated her after Dr Campbell took over treatment, by writing prescriptions for her as indicated in allegations (d) to (h) whilst having a personal relationship with her.

53 Mr Wilson relied on the fact that none of the letters or notes tendered in evidence before the Board from the applicant to BS were dated prior to the date the applicant ceased treating BS. This is not of great assistance to the applicant in circumstances where some of the correspondence was undated and not all the correspondence from the applicant was produced to the Board.

54 I have already referred to BS's evidence regarding her poor psychological state at the time the applicant wrote the note of 16 March 2003. That note states in part :

You know I love you more than anyone else on God's earth - I am having difficulty understanding what's going on. First you stole my heart, now you've broken it - I feel overwhelming sadness today. You and only you, can relieve it. I believe you still love me, and that our 'pillow talk' still holds true. I need you honey, and want you to come back to me.

I just wanted to tell you how happy I am honey, and how good it was to see you and your mum tonight. But as I love you so much, it was very painful for me saying goodnight to you and having you go ... As I have told you before , you are the best thing that's ever happened to me (and I thank God for that), and as you well - know .... you truly are 'the love of my life'!!! Sometimes I wonder how I can stand it knowing you spend 5 or 6 nights a week with your husband - I only hope and pray that you can extricate yourself from HIM soon, and come with me for the rest of our lives - I will wait for you (as you are definitely worth waiting for)!

57 An undated note from the applicant to BS states:

I just want to know what is in your heart, and mostly, WHY did you move everything out? All I do know is that you suddenly changed on Wednesday when I refused to write a script from Andmorph ... Have the jealous Sonia and that prick Campbell finally won ie that we have broken apart? I only hope you reconsider, and continue to love me, and that we can be together soon. I love you, Al.

58 Another undated note from the applicant to BS says :

What is wrong [with] you - why don't you open the door - talk to me??? Good luck (with) your mammogram and U/S today - let me know the results. Call me later today at the clinic .... Are we finished?? If you think so, I'll be heartbroken (but what do you care)? I still love you and need to talk to you.

59 The tenor of these notes in the context of a past therapeutic relationship and where BS was distressed about the state of her marriage tells against Mr Wilson's submission that there could be no suggestion that the applicant preyed on her.

APPROPRIATE DETERMINATIONS UNDER S 45A OF THE ACT

60 In considering the appropriate determinations under s 45A of the Act, a question arose as to the weight to be given to the reasons for decision of the Board and to the Board's views of the standard to be expected of a practitioner's conduct. Mr Wilson referred me to HA v Pharmacy Board of Victoria [2002] VSC 322, a decision of Gillard J and he relied in particular on paragraph 84 of his Honour's reasons. There, his Honour stated :

In my opinion, the true rule is that this Court ultimately makes its own decision on the issues raised in the appeal, but the reasons for the determination by the Board may be of some weight depending on the circumstances. Where the issues raise matters relating to the practice of pharmacy, the standard that one would expect of the reasonable competent pharmacist or the good character and reputation expected of a pharmacist, the members of the Board are usually in a better position than this Court to make an assessment of those matters, and in those circumstances, the Court should attach substantial weight to their findings. The members of the Board in the present matter, are experienced in the profession of pharmacy, and any issues relevant to the question of penalty, which are concerned with matters peculiar to the profession, must be accorded considerable weight. But where the issues involve matters that do not depend upon the practice of pharmacy, then the Court is in as good a position as the Board to make its own assessment of the penalty.

61 I accept that this Tribunal is in as good a position as the Board to make its own assessment of the penalty. However, it is clear that the Board's determination should be given some weight. The Board in its reasons for decisions found that the applicant had engaged in unprofessional conduct of a serious nature. At paragraphs 46 to 52 the Board said :

The Panel regards Dr Storti's latest unprofessional conduct most gravely. Having regard to Ms BS's clinical records generated by Dr Storti, it is apparent that Ms BS was a very vulnerable person and that he exploited that vulnerability. She is described at various times as depressed, and as suffering from anxiety and neurosis. Ms BS was a victim of a series of transport accidents and was prescribed by him substantial amounts of pain-killing medication and benzodiazepines over a significant number of years. In addition, he provided her with counselling and support over a lengthy period.

It was grossly wrong for Dr Storti to court Ms BS given his long-term therapeutic relationship with her. The fact that he suddenly afflicted her with his romantic imprecations after having behaved properly toward her for many years avails him little. A romantic relationship between them could not just become equal against the background of their therapeutic relationship. Moreover, after he transferred her care supposedly to Dr Campbell, it is significant that he continued to prescribe her medications, using the device of notionally prescribing them for her husband. In other words, a significant ongoing treating relationship persisted even when a romantic and sexual relationship had come into being. Dr Storti's artifice of transferring his patent to Dr Campbell bears all the hallmarks of having been done in order to endeavour to legitimise his romantic quest.

The Panel heard and accepts that Dr Campbell, upon being told of Dr Storti's notions in respect of Ms BS, tried to dissuade him and to point out how seriously unethical it would be to pursue his aspiration of a romantic relationship with his patient. Dr Storti appears to have paid scant regard to the good advice given to him. Likewise, he did not avail himself fruitfully of the counsel of his psychiatrist, Professor Ball. Instead, he did exactly what his attractions to Ms BS motivated him to do. He put his own interests ahead of those of his long-term patient. He did not reflect ethically upon what his obligations were. What advice he received he rejected. This constituted grossly improper behaviour that would be castigated by professional colleagues and members of the community alike in the contemporary environment. It is incompatible with ongoing registration.

Moreover, his dishonest and fraudulent prescription of pain killers and benzodiazepines in the name of Ms BS's husband was a device to try to hide the fact that he was continuing to treat a patient with whom by then he was engaging in a sexual relationship. His threat to her when she failed to attend his barrister, as he wanted her to do, is likewise very serious. It constitutes an attempt at intimidation of a witness to try to advance his own position before this Panel. As such, it is seriously improper conduct suggestive of a wanton lack of judgment and a preparedness to do whatever occurs to him to cater to his own needs, regardless of the impact upon others.

Dr Storti's conduct in respect of Ms BS takes on an even more sinister aspect when viewed longitudinally. This present hearing constitutes Dr Storti's third appearance before panels of this Board and the third time he has been found guilty of professional misconduct. It needs to be emphasised that this is an extremely serious adverse findings as it has as its essence an evaluation that a practitioner's conduct has been disgraceful, dishonourable, worthy of strong condemnation and substantially falling short of the ethical conduct expected of registered practitioners. Dr Storti's previous appearances before panels of this Board do not seem to have exercised a salutary effect. They have not deterred him from repeating various forms of sexualised behaviour that are distressing to those adversely affected by them, grossly inappropriate and incompatible with basic standards of behaviour to be expected of a registered practitioner.

On each occasion, Dr Storti's professional misconduct has been committed in the context of h is practice of medicine. On multiple occasions over a period of some 11 years he has obscenely exposed himself to workers within his practice, no doubt to their considerable distress and embarrassment. This behaviour is criminal but it is also highly problematic in terms of the way Dr Storti has run his practice as a doctor. In addition, in 1988 he pressed his attentions on a partially clad patient in a sexualised and indefensible way. Most latterly, now in 2002/2003 he has entered into a sexual relationship with a former patient/patient after hounding her for her romantic and sexual responses in a way that was shameful, harassing and utterly improper. Each time, Dr Storti's behaviour has been sexually inappropriate and disinhibited, exhibiting indifference to matters other than his own immediate needs and gratifications. This panel owes it to the community to ensure that Dr Storti does not put any further persons at risk by his sexualised behaviour and that he does not further damage the standing and reputation of the profession of medicine. It is apparent that some aspects of Dr Storti's practice have been sound and have been appreciated by his patients. We are conscious too that his practice is in a rural area of need. However, these factors do not justify the panel responding to his serially grossly improper conduct other than by imposing a determination which builds upon prior determinations imposed upon him, which learns from the ineffectiveness of earlier sanctions, and which this time attempts robustly to deter him and others minded to behave repeatedly like him. It is important too for the panel to do what it can to protect the good standing and ethical reputation of the profession.

Dr Storti's repeated professional misconduct has reached a point where this panel would be derelict in its responsibilities if it allowed Dr Storti to remain in practice. He has not been deterred by previous determinations of the Board. His unprofessional behaviour has been flagrant, recidivist and has a consistency in its disinhibition and preparedness to give primacy to his own needs. We make it clear that our determinations are not directed at punishing Dr Storti. Rather, they are directed toward protecting the public and in particular to deterring him and others minded to behave similarly from conduct that is unethical and incompatible with the standards of practice of an honourable profession.

62 I agree with the Board's conclusions as they accord with my own. In my view, the applicant's conduct constitutes unprofessional conduct of a serious nature. He took advantage of BS's psychological vulnerability and of his special position as her treating doctor in entering into an inappropriate personal relationship whilst she was his patient, and later into a sexual relationship with her. He did so in circumstances where BS had been dependent professionally on him as her treating doctor for a period of some 11 years between July 1991 and October 2002. In that period she saw him on a frequent basis. He wrote prescriptions for her in her husband's name, when she was being treated by Dr Campbell. He sent her correspondence which on its face sought to intimidate her by writing the note which is the subject of allegation (i).

63 The applicant's behaviour occurred in the context of previous determinations by the Board referred to earlier and where the previous Board stated at paragraph 24 of its reasons dated 2 October 2001:

By way of conclusion, the Panel states that whilst to has no power or authority to bind any future Panel formed to deal with any misbehaviour by Dr Storti the members of this Panel find it very hard to imagine circumstances whereby Dr Storti would ever be permitted to practise medicine again if there was (sic) any future occurrences of behaviour giving rise to these proceedings'..

64 In his evidence before the previous Board on 24 August 2001, the applicant was asked to tell the Board how it might be assured that if he was tempted to re-offend that he would report that fact to Professor Ball or to the Board. The applicant replied :

Just that I'm - the dire consequence of any re-offence is - just that it would have such a devastating impact on my life, as it is now, even. And as I said before, I've got no more chances left. I'd lose my family, career and probably home and everything I've got. That's the main thing, the dire consequences of it. And that I feel completely in control and capable of performing my duties, which I have done in the last 12 months since that offence, the last offence, and I think that the combination of the medical - the medication is helping and continuing to see Professor Ball. (p 60 transcript).

65 It is apparent from the applicant's evidence before the previous Board at that time that he was in no doubt as to the personal, financial and professional consequences of re-offending. However, notwithstanding that awareness and ongoing treatment from Professor Ball, he engaged in unprofessional conduct in the following year by entering into a relationship with his BS.

66 Whilst the re-offending behaviour was of a different nature to the previous misconduct, it was as Ms Dixon submitted, behaviour likely to be viewed by the Board in a serious light. If the applicant was unable to grasp the seriousness of his actions he was nonetheless warned by Dr Campbell. Dr Campbell said in his affidavit that he told the applicant his behaviour was inappropriate and that he reminded him of the implications for his family, his ethical duties as a doctor and he told him the Board might suspend him. Notwithstanding, the applicant pursued the relationship.

67 Mr Wilson submitted that the past offences of the applicant dealt with sexual impropriety and that the present offences were of a different nature in that the offences arose out of a consensual relationship between two consenting adults. I have already found that the relationship between the applicant and BS cannot be characterised thus. Further, the behaviour of the applicant the subject of previous adverse findings by the Board and his professional misconduct in the present case was committed in the context of his practice of medicine in the sense that BS was at all material times a patient or former patient and he wrote prescriptions for her in breach of the Drugs, Poisons and Controlled Substances Act 1981 for the purposes of treatment. In addition, at an earlier hearing of the Board and in the present case, his conduct involved a patient.

68 I reject Mr Wilson's assertion that the applicant's plea of guilty before the Board in the face of BS's denials of sexual intercourse reflected insight and remorse on his part. Apart from the fact that it was difficult for him to resile from his statement to the Board on 6 March 2003 that he started a sexual relationship in January 2003, he told the Board at that time that there was no boundary violation of the doctor patient relationship. I am not satisfied on the material before me that he has insight into his conduct or that he feels remorse. On the contrary, his statement to the Board indicates little insight into the essence of the relationship.

69 There was an absence of compelling evidence as to his present state of mind concerning his behaviour. The applicant failed to give evidence either before the Board or the Tribunal in relation to his insight or remorse, or call Professor Ball. I accept Ms Dixon's submission that Professor Ball would have been a valuable witness in relation to such matters. He first commenced treating the applicant in September 2000 having diagnosed him with a form of sexual deviation called exhibitionism and he has continued to treat him. Notwithstanding a requirement of the previous Board that Professor Ball provide reports to the Board, the applicant did not produce those reports to this Tribunal.

70 As the applicant's treating doctor for several years, Professor Ball was in a unique position to express a view as to whether there was any relationship between the applicant's conduct relating to BS and the condition for which Professor Ball has been treating him since 2000. It would also have been valuable to hear Professor Ball's evidence as the nature of the treatment he currently provides. It would appear from the previous Board's reasons at that time that it had some optimism about the benefits of Professor Ball's treatment and it was partly on the basis of his evidence that the applicant was allowed to continue to practice.

71 Mr Wilson submitted that a factor weighing in the applicant's favour was that there was no inappropriate behaviour in the period between the first day of the hearing on 20 October 2003 and the second day of the hearing in October 2004. I accept that reformation of character and behaviour can occur but there was no evidence before me to indicate that the applicant had become a changed person in that period.

72 I have had regard to the evidence before me and before the Board as to financial hardship that would be suffered by the applicant if his registration is cancelled. I accept that cancellation will have a devastating effect on him and there is uncertainty as to whether he will be able to re-register. As Ms Dixon submitted however, the period of cancellation will enable him to reflect on the reasons for cancellation, take steps to rehabilitate himself and provide evidence to the Board of that rehabilitation.

73 I have also had regard to the applicant's significant patient following in Drouin and the support provided to him by those patients by signing a petition, sending letters to the Board and to the Tribunal and travelling to Melbourne to give evidence for him at the hearing before the Board, and in the case of Mr Crook, before the Tribunal. I accept that his patients find him to be a competent and caring family doctor and that he is held in high regard by his patients. I have also had regard to the fact that the applicant practices in a rural area of need.

74 The object of disciplinary proceedings is not to punish the practitioner but to protect the public, maintain standards within the profession and protect the reputation of that profession. (See New South Wales Bar Association v Evatt (1968) 117 CLR 17). Harper J in Morris v Psychologists Registration Board (6208 of 1997 unreported) made the following observations in relation to an appeal by a psychologist under the Psychologists Registration Act 1987 by Mr Morris :

I accept that this affair has had a significantly detrimental effect on Mr Morris. However in my opinion the overriding issue for the Board must be whether Mr Morris should practice as a psychologist. In coming to an answer to that question the Board should have regard to the circumstances of the case and the nature of the misconduct, the degree of remorse and insight demonstrated by him, and the likelihood that the conduct may reoccur. Above all else I think that the Board is required to regulate the profession to ensure public confidence in it and to protect people seeking therapy who are generally vulnerable and in need of help.

I respectfully adopt his Honour's comments.

75 Both counsel referred me to decisions where lesser or more severe penalties were imposed in disciplinary proceedings, including a decision of the Court of Appeal in Healthcare Complaints Commission v Litchfield [1997] NSWSC 297; 1997) 41 NSWLR 630. In Litchfield the Court noted at 637 that the effect of disciplinary proceedings on the doctor and their cost "in money and emotional stress" would be highly relevant if the purpose of the proceedings was punitive, but their purpose was entirely protective. The court's observations are apposite here in relation to Mr Wilson's submissions as to the effect of a cancellation of registration on the applicant.

76 In the present case, given the serious nature of the misconduct, the applicant's failure to heed the earlier determinations of the Board, a regrettable incapacity on his part to understand the need to deal with his own desires in the context of a professional relationship, my lack of satisfaction as to any remorse or insight on his part and the need to protect the public and maintain the standards of the profession, I have formed the view that his conduct warrants determinations pursuant to s 45A of the Act in the same terms as those made by the Board. Accordingly, I affirm the decision under review.