Storti v Medical Practitioners Board of Victoria

Storti v Medical Practitioners Board of Victoria - [2005] VCAT 873 - VCAT 2005 case summary — Zoe

[10]

(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 :

[15]

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 :

[44]

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.

[45]

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 :

[46]

• 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.

[52]

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.

[53]

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 :

[76]

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 :

At a glance

Court

Decision date

Before

Source

Judgment (78 paragraphs)

Storti v Medical Practitioners Board of Victoria (Occupational and Business) [2005] VCAT 873 (10 May 2005)

Parties

Legislation Cited (2)

Cases Cited (1)