H v Medical Practitioners Board of Victoria [2007] VCAT 526 was a rehearing of a case before the Medical Practitioners Board (the decision of which is here). VCAT, constituted by Vice President Harbison and Associate Professor Davis, reduced the severity of the outcome of an unprofessional conduct prosecution for an intimate relationship with a former patient, which continued after the psychiatrist had paid her $100,000 conditional on her not suing him or lodging a disciplinary complaint. VCAT suspended him for 18 months in lieu of the deregistration imposed on him by the Board, the majority of which had concluded that:
‘Dr [H] is unlikely to engage in unprofessional conduct of the nature of a sexual relationship with a patient or former patient again. … However we note that some of factors in Dr [H’s] personal background that formed the context within which this relationship developed remain unresolved. … on balance, … there is likely to be a benefit to the public in Dr [H] continuing to practise his profession. However, through our knowledge as members of this Board, we are aware that the predictive capacity of bodies such as ours in relation to repetition of sexual misconduct is poor. Therefore it is incumbent upon us to be cautious.’
That conclusion was recounted in VCAT’s judgment as a finding ‘that it was unlikely that Dr Honey would be likely to engage in unprofessional conduct of the nature of a sexual relationship with a patient again [sic.]’.
The Board’s decision is notable for containing a dissenting opinion. Disciplinary tribunals are often constituted by panels of lawyers and non-laywers, but I do not recall ever seeing a legal disciplinary tribunal publish majority and minority reasons.Dr H, a senior Footscray psychiatrist with substantial teaching responsibilities, had an affair, twice broken off and resumed, over 6 and a bit years, described by VCAT with undesirable imprecision as a “personal and/or sexual affair”, with a psychologically vulnerable woman who told him during therapy that she was infatuated with him. Relatively recently, professional guidelines were published asserting that sex between psychiatrists and former patients was always unethical. The Board found that the psychiatrist was himself vulnerable at the time because of personal problems of his own. Despite the psychiatrist’s initial protestations of the impossibility of a romantic relationship, he failed to resist the woman’s advances successfully.
When the woman later rang his wife and advised that the psychiatrist had been having an affair with her for two years, the affair ended for a while. The relationship had commenced a month after their professional relationship was terminated, and progressed to what the Medical Practitioners Board called “a full sexual relationship” within 2 months of that termination. After the doctor-patient relationship ended, the psychiatrist continued to prescribe prescription drugs to the woman, but did not refer her to another doctor. He identified two other patients’ identities to her in circumstances where the woman enquired why he had been in the presence of other young women and the psychiatrist explained that they were patients.
When it became clear to the woman that the psychiatrist did not intend to leave his wife for her, she demanded he pay her $100,000. She got solicitors to draw a document styled as a pre-proceedings release of a cause of action for emotional distress. The solicitors inserted a clause by which the woman promised not to lodge a complaint with the Board. The pyschiatrist gave evidence that he did not think that promise was enforceable, one assumes because it was against public policy, but the psychiatrist acknowledged that the signing of on the agreement would make a complaint less likely even if it was unenforceable. The psychiatrist’s wife witnessed his execution of the document, and he paid the money without seeking legal advice. A dissenting member of the Board, a former barrister, said:
‘[171] I am not as concerned as the other Panel members about the payment to Ms MB for two reasons. First, the payment was made with so many motives that it may have been difficult for Dr [H] to isolate the different reasons which led him to make the payment, so as to appreciate the serious nature of the professional misconduct involved in offering a financial incentive to induce a potential complainant not to proceed with a complaint. Secondly, the agreement was drawn up by Ms MB’s solicitor. There is no evidence that the solicitor alerted Dr [H] or Ms MB to the fact that it was improper, and possibly against public policy, to make a payment, in part, to induce Ms MB not to complain to the Board. If the solicitor did not appreciate the fact that, in that respect, the payment was improper, it is not surprising that Dr [H] himself did not recognise that fact.’
I find the reasoning somewhat surprising coming from a legal member of a professional disciplinary tribunal, particularly in light of the psychiatrist’s own evidence that he thought the controversial promise would be unenforceable. Who would have led evidence that the solicitors alerted their client to the impropriety of the clause in the agreement? Such advice would probably have been privileged. Why would the woman’s solicitors have alerted the psychiatrist to the impropriety and risked the loss to their client of $100,000? One would expect them not to do so. VCAT found the entering into of the document, and the payment of the money to be “unprofessional in the extreme”.
The woman stalked the psychiatrist. She gained entry to the psychiatrist’s matrimonial home through a window and was discovered outside the bedroom where the psychiatrist and his wife had been sleeping. On another occasion, the psychiatrist found the woman in a “very dishevelled” state on his arrival at work. He rang her solicitor and said he was worried she was a danger to herself. The solicitor rang the Medical Board and sought advice. The Board told the woman’s solicitor that if the psychiatrist thought the woman was at risk, the psychiatrist should take ‘appropriate action’, without elaborating. So the solicitor told the psychiatrist that, and the psychiatrist called the CAT team — the mobile mental health crisis team. These are extraordinary facts suggesting a whole constellation of mixed up professional relationships.
It gets worse. Having taken the money but complained about the psychiatrist to the Board nevertheless, the woman offered to refrain from swearing an affidavit of evidence for use in the Board proceedings if he left his wife for her. He declined, and said consistently that whether she swore the affidavit was entirely a matter for her.
The Board deregistered the psychiatrist and told him not to apply for re-registration for two years. VCAT decided an 18 month suspension, backdated to the operative date of the Board’s decision, and a public reprimand, was more appropriate. The difference between deregistration with a period of ineligibility to apply for re-registration, and suspension for the same period was spelt out:
’42 … once the doctor’s registration is cancelled, he must reapply after the period specified. He is not guaranteed that he will be so re-registered. He must still satisfy the Board that registration is appropriate and that he fulfils the qualifications for general registration set out in section 7 of the Medical Practice Act.
43 Cancellation of registration sends a clear message of unsuitability to practice. Suspension may be thought to indicate confidence in the doctor’s future ability to practice once the period of suspension is served.’
The Board’s decision is a rich resource on the law relating to when deregistration is appropriate and when suspension is appropriate.
