Doctor disqualified for sexual misconduct despite having retired
Ruanne Brell, BA LLB (Hons), Senior Legal Adviser, Advocacy, Education and Research, Avant
Dr Rosa Canalese, MBBS, Dip Paed, FRACGP, MPH, Senior Medical Adviser, Avant
Wednesday, 7 June 2023
Most doctors are aware that commencing a sexual relationship with a patient is unethical and unprofessional, regardless of whether it is consensual. Whilst mitigating personal circumstances may be taken into account, these are unlikely to override a state tribunal’s obligation to protect the public.
In this case, there were some agreed facts between the parties, and the Medical Board of Australia (the Board) applied to the state tribunal to determine an appropriate penalty. The doctor was reprimanded, disqualified from re-registering and ordered to pay a contribution to the Board’s legal costs.
Relationship develops over time
The doctor had been the patient’s GP for over 20 years when he started engaging in inappropriate conduct and contact during consultations, including putting his arm around the patient. After several months, this evolved into a sexual relationship, initiated by the doctor during an appointment at his medical practice.
For a period of over five years, the doctor then engaged in a sexual relationship with the patient, involving multiple encounters, sometimes taking place in the doctor’s consulting rooms. During this period the doctor also exchanged numerous text messages and emails of a sexual and inappropriate nature with the patient, took her on outings and provided her with money.
Throughout their personal relationship the doctor continued to treat the patient as her general practitioner.
Doctor retires when notified of investigation
After the Board commenced its investigation into the doctor’s alleged sexual misconduct, he notified the Board that he had decided to retire from medical practice.
The doctor admitted at an early stage that his conduct was in breach of both the Code of Conduct for Doctors in Australia (in its various versions at the relevant times) and the guidelines on sexual boundary breaches. He also acknowledged that the allegations, globally, constituted professional misconduct.
The Board determined that he should still face disciplinary action.
Strong penalty required
The tribunal’s view was that this case represented “sexual misconduct of a most serious nature which strikes at the heart of the doctor-patient relationship.”
It highlighted that a sexual relationship exploits the inherently unequal balance of power in the doctor-patient relationship and significantly undermines public confidence in the profession.
The tribunal noted that:
- the doctor had admitted that the allegations against him constituted professional misconduct
- he had demonstrated remorse
- he had retired and therefore there was a low risk of repeating this kind of conduct
- there was no evidence that the doctor’s clinical care of the patient had been incompetent.
Despite these considerations, it was agreed that a strong penalty should be imposed. The tribunal noted that any penalty needed to be sufficient to deter other practitioners from engaging in similar misconduct.
Personal circumstances considered, but overruled
The doctor submitted a statement of factors to be considered in mitigation, namely that at the time of initiating the sexual relationship, he was experiencing significant family issues, including his mother falling ill, and this contributed to his error of judgement.
Whilst the tribunal was sympathetic to his personal circumstances and recognised that he had practised for 45 years with no previous disciplinary history, they noted that these factors cannot override the obligation of the tribunal to protect the public and maintain public confidence in the medical profession.
Disciplinary orders imposed
The doctor was reprimanded, disqualified from applying for registration for four years, and ordered to pay $11,000 as a contribution towards the Board's costs.
- It is always unethical and unacceptable to have a sexual relationship with a patient.
- In a situation where a doctor develops personal feelings for a patient, the patient’s care should be transferred to another practitioner. Relationships with former patients may still be unethical and unprofessional.
- Disciplinary orders can still be imposed after a doctor is no longer registered.
- A doctor’s disciplinary background and other mitigating factors, such as family stressors and ill-health, will be considered but do not override the tribunal’s obligation to protect the public.
Why breaching sexual boundaries is unethical and harmful
Medical Board of Australia, Guidelines: Sexual boundaries in the doctor-patient relationship, Section 2 (12 December 2018)
Doctors are expected to act in their patient’s best interests and not use their position of power and trust to exploit patients physically, sexually, emotionally or psychologically. Breaching sexual boundaries is always unethical and usually harmful for many reasons including:
- Power imbalance: The doctor-patient relationship is inherently unequal. The patient is often vulnerable and in some clinical situations may depend emotionally on the doctor. To receive healthcare, patients are required to reveal information that they would not reveal to anyone else and may need to allow a doctor to conduct a physical examination. A breach of sexual boundaries in the doctor-patient relationship exploits this power imbalance.
- Trust: patients place trust in their doctor. They have a right to expect that examinations and treatment will only be undertaken in their best interests and never for an ulterior, sexual motive.
- Safety: patients subjected to sexual behaviour from their doctor may suffer emotional and physical harm.
- Quality: A doctor who sexualises patients is likely to lose the independence and objectivity needed to provide them with good quality healthcare.
- Public confidence: Members of the community should never be deterred from seeking medical care, permitting intimate examinations or sharing deeply personal information, because they fear potential abuse.
The case discussed in this article is based on a real case. Certain information has been de-identified to preserve privacy and confidentiality.
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