GP’s sexual assault conviction outside work leads to suspension
Caroline Tuohey, BA, LLB, Practice Manager Legal (Professional Conduct), Avant Law, VIC
Tuesday, 27 April 2021
This article has been updated following member feedback.
This is a distressing case involving a doctor who was convicted of sexually assaulting a former work colleague in a social setting, which led to a finding of professional misconduct and disciplinary action.
This decision highlights that a doctor’s personal conduct outside of work, in this case the serious criminal offence of sexual assault, can also have serious professional repercussions. The decision supports the Medical Board of Australia’s Code of Conduct, which notes the importance for doctors to behave in an ethical and trustworthy manner, in light of the trust the community places in them. The case also reinforces that the standards of personal behaviour required to satisfy a doctor is a “fit and proper” person to hold a registration, have evolved around domestic incidents.
A doctor and his wife had become close friends with a nurse and her family. The doctor had previously worked in the same clinic as the nurse and they still worked at the same organisation. The couple had been particularly supportive of the nurse after she had been diagnosed with a serious illness.
One night, the families went out to dinner and it was planned the nurse and her children would sleep at the doctor’s house. After dinner, the children returned to the doctor’s house and the trio went drinking until late. The doctor, it was later estimated, consumed about 17 drinks during this time.
When the evening concluded, the nurse returned to the doctor’s home where her children were sleeping. She went to bed but awoke in the early hours to find the doctor sexually assaulting her. She asked him to stop but he made two more attempts over the next half hour.
Naturally this grave assault and trespass had a devastating effect on the nurse, both professionally and personally. The nurse was unable to continue working at the clinic where the doctor also worked. She separated from her husband and was diagnosed with PTSD and major depression.
Although the doctor said he had no recollection of the assaults, he pleaded guilty to one charge of sexual assault in court.The doctor was convicted and sentenced to an 18-month Community Correction Order. This included 100 hours of community work, and treatment and rehabilitation orders for alcohol abuse.
The doctor advised Ahpra of the sexual assault charge. Under the National Law, if a medical practitioner or student is charged with an offence which is punishable by 12 months imprisonment or more, or convicted or found guilty of an offence punishable by imprisonment, they are required to report it to the Medical Board of Australia within seven days of becoming aware of the event.
Doctor argues against professional misconduct
The doctor argued the incident had nothing to do with any patients and did not occur in a public or medical setting.
He submitted that his conduct could not be defined as professional misconduct because:
- the incident was a “one-off” and he had an otherwise exemplary career record
- the conduct occurred in a private setting
- it could not be said that he was not a fit and proper person to be registered
- when his whole history and character was considered
- the sexual assault outside of work did not affect his suitability to practise.
Tribunal finds conduct linked to professional capacity
The tribunal highlighted a growing realisation of the significance of domestic events, including domestic violence, and their relevance to doctors when applying disciplinary oversight.
Although the incident occurred outside of the work setting, the tribunal concluded the doctor’s conduct, “cannot be divorced from the professional context” as he and the nurse still worked at the same organisation.
The tribunal indicated it was “comfortably satisfied” the doctor’s behaviour amounted to professional misconduct given the conduct:
- Involved a serious criminal offence.
- Involved repeated assault on a vulnerable person, who should have been safe in the home of her friend.
- Showed a disregard for consent and personal autonomy, both important values for a medical professional.
- Was inconsistent with the expectations of the Board’s Code of Conduct which stipulates doctors must be “ethical and trustworthy.”
- Was inconsistent with the expectations of the AMA Code of Ethics, which states, “Recognise that your personal conduct may affect your reputation and that of your profession.”
- Had some connection with the doctor’s work, in that it was perpetrated on a nurse working for the same organisation as him.
The tribunal took into consideration that the doctor had expressed remorse for the pain and trauma the incident had caused for the nurse, her family, and his wife, and the harm to the profession. The doctor had also given the nurse a letter of apology and undertaken rehabilitative steps. This included no longer working long, late-night shifts which were contributing to stress, reducing his drinking and regular counselling.
Ultimately, the tribunal found the doctor guilty of professional misconduct and his registration was suspended for three months.
When personal misconduct amounts to professional misconduct
The Medical Board of Australia referred the matter to the state’s tribunal who examined the question of when a doctor’s personal misconduct has implications on their professional capacity.
The case centred on the nature of the doctor’s conduct and whether it constituted ‘unprofessional conduct’ or the more serious, ‘professional misconduct’.
The law distinguishes unprofessional conduct as being of a lesser standard than might reasonably be expected of the doctor by the public or the doctor’s professional peers whereas professional misconduct is a substantial departure from the standard (whether occurring in connection with the doctor’s profession or not).
- Criminal convictions and other serious misconduct in your personal life can have a devastating impact on your reputation and career.
- Under the National Law, if a medical practitioner or student is charged with an offence which is punishable by 12 months imprisonment or more, or convicted or found guilty of an offence punishable by imprisonment, they are required to report it to the Medical Board of Australia within seven days.
- Disciplinary action can follow a ‘one-off’ incident where your behaviour is otherwise exemplary.
- It is increasingly likely that domestic issues will be considered in relation to disciplinary oversight. This includes domestic violence or any form of conduct not consistent with being a trustworthy member of the community.
- Vulnerability of individuals (whether they are patients/colleagues or not) in view of the position of trust held by registered doctors is treated with the utmost importance.