Charge

The Tribunal considered a charge of professional misconduct against Dr Y (the Doctor).  The charge alleged that the Doctor breached sexual boundaries in the doctor/patient relationship during a consultation on 10 March 2009 and at his patient's place of employment later that day.

Background

The Doctor accepted that the charge brought against him amounted to professional misconduct on his part and that a disciplinary finding was warranted against him.  However the parties could not agree about the specific of the conduct involved.

The parties agreed that after a discussion at a consulation the Doctor asked if he could hug the patient.  During the consultation they discussed the patient's depression, life stressors, her ear complaint and the prescribing of anti-depressant medication.  The patient agreed to the hug.

The Tribunal considered that the act of the Doctor hugging his patient was a trigger for what followed.  The Tribunal considered it hard to imagine a clinical consultation where hugging a patient of the oppposite sex did not cross a professional boundary.

The situation quickly moved to the point where the Doctor recognised that appropriate boundaries were being breached.  This was evident, as after there had been some kissing and cuddling, he locked the door and closed the curtains.  The Doctor then asked the patient to bend over the table and he started to undertake thrusting motions behind her.  The Tribunal accepted the patient was shocked by what had happened.  In addition, it considered locking the door could be intimidating and frightening for a patient.

The Tribunal accepted the second meeting lasted for about an hour.  There was an intimate discussion wherein the patient explored whether they might engage in an ongoing personal relationship.  The agreed to stay in touch, exchanged email addresses and a mobile phone number.  The Tribunal found that there was then a brief encounter where the patient was persuaded to perform oral sex on the Doctor for about a minute.  This ended fairly promptly, because the Doctor had to go back to work.

Finding

The Tribunal found the charge of professional misconduct was established.

The Tribunal found the Doctor's conduct at his consultation room amounted to "sexual transgression", namely inappropriate touching of a patient that was of a sexual nature short of sexual violation.

The Tribunal found the Doctor's conduct at the patient's place of work was "sexual violation".   The sexual contact was initiated by the Doctor.  He had recognised the possibility of sex in his consultation room, avoided it there, but pursued the patient to her work where he suggested sexual activity.

Penalty

The Tribunal censured the Doctor, fined him $25,000 and ordered him to pay costs of $14,280.

The Tribunal further ordered that for three years he must practise under conditions requiring him to:

• have a chaperone present when seeing any female patient;
• notify a prospective employer that he must not see any female patient, without a chaperone being present;
• have his future employment approved by the Medical Council's Registrar and Medical Advisor;
• have in place at all times when practising a notice that informs patients and their support people that he requires a chaperone to be present when he is seeing a female patient;
• undergo an assessment by the Sexual Misconduct Assessment Team;
• undergo such course of action as the Medical Council thinks appropriate in light of the assessment; and
• meet the costs of any assessment so directed, and any course of action which he is required to undertake.

The Tribunal further directed publication of its decision and a summary.

Appeal

The Tribunal declined the Doctor's application for permanent name suppression.

The Doctor appealed that decision to the High Court.  The Court allowed the appeal and granted the doctor name suppression but added the following condition under which the Doctor must practise for three years:

• If asked by a patient, the Doctor will confirm he is the doctor who obtained name suppression, and will otherwise provide the patient with appropriate information.