SERIOUS DISCIPLINARY PROCEEDINGS AGAINST AUSTRALIAN HEALTH PRACTITIONERS FOR SEXUAL MISCONDUCT.

• Date: 01 August 2020
• Author: Millbank, Jenni

Contents I Introduction A The National Law and This Study B What Is 'Sexual Misconduct'? C Case Set Overview II Sexual Relationships III Inappropriate Contact IV Disciplinary Outcomes A General versus Specific Deterrence, Denunciation or Standard Setting B 'Time Served': Reducing Periods of Removal from Practice C Suspension versus Deregistration D 'Special Skills' E Agreed Sanctions V Conclusion I INTRODUCTION

There has been increased attention to the issue of sexual misconduct and abuse by health professionals in recent years, and on the response of regulators, particularly in dealing with serial offenders. (1) In 2016, the Medical Board of Australia and the Australian Health Practitioner Regulation Agency ('AHPRA') commissioned an independent review ('Paterson Inquiry') of the use of so-called 'chaperone' conditions, which allow doctors to practise while under (and sometimes following) investigation for sexual misconduct. (2) That review was triggered by a public scandal after a Melbourne neurologist indecently assaulted a male patient while practising under 'chaperone' conditions, imposed by reason of an earlier similar complaint; with dozens more patients ultimately coming forward after the issue was made public. (3) Ron Paterson, a former Health and Disability Commissioner in New Zealand, was appointed to conduct the wide-ranging review, with the Medical Board of Australia and AHPRA swiftly committing to implementing all recommendations. (4) Throughout 2019, public attention to such issues continued, with media reporting of a string of criminal proceedings against several doctors, each accused of inappropriately touching multiple female patients, (5) and significant adverse media reporting of a tribunal determination in which a doctor, who made a series of online comments in favour of rape and domestic violence, (6) was suspended for only six weeks. (7)

Between 2.7% and 7.2% of formal complaints about health practitioners in Australia concern sexual misconduct. (8) Research on patient experience suggests sexual misconduct by health practitioners is underreported, (9) and that patients may be even less likely to report sexual abuse than those who experience sexual abuse in other contexts. (10) Patients may be reluctant to report sexual misconduct because of ongoing loyalty to the practitioner, feelings of shame or guilt, or concern about what the complaint process entails in terms of their own participation. (11) It is also common, in instances of unwarranted intimate touching occurring under the guise of clinical treatment, for patients to be unsure about whether the conduct was a 'normal' part of treatment. (12)

This article explores how complaints of sexual misconduct against health professionals appear, and are responded to, under the Health Practitioner Regulation National Law ('National Law') regulating health professions in Australia, by examining those cases that appear at tribunal level. Tribunal cases are not necessarily representative of the incidence and types of sexual misconduct occurring in each profession or even of the balance of formal complaints made to health regulators. Rather, they represent the matters deemed the most serious by regulators and referred to an independent tribunal for public resolution. (13)

This research seeks to understand how serious sexual misconduct cases are dealt with in terms of how decision-makers characterise the seriousness of the relevant conduct and how they articulate and weigh factors used to determine appropriate protective orders. Previous work within this broader study identified variations between sanctions for sexual misconduct at tribunal level, with the likelihood of restrictive outcomes differing across the five main health professions, and across different State and Territory jurisdictions. (14) This article explores possible reasons for these differences through a qualitative analysis of available decisions.

Part I of this article first outlines briefly the structure of how the National Law regulates health professionals; the scope of the study of which this analysis forms a part; and explores how definitions of sexual misconduct appear in the National Law through legislation, regulatory guidance and professional level Codes of Conduct. It then provides an overview of the case set in order to contextualise the cases examined.

In Part II, this article explores how both inherent and relational vulnerabilities are taken into account in cases concerning sexual relationships between health practitioners and patients or former patients, to determine the degree of seriousness. While the terminology of 'mitigating' or 'aggravating' factors is rarely used, explicitly, by Australian health practitioner tribunals, this Part examines the factors that tend towards conclusions of greater or lesser seriousness. It also explores what appear to be differences in approach between some health professions--particularly dentists--about whether evidence of 'extra' vulnerability or exploitation, over and above the therapeutic relationship, is required for the threshold of misconduct to be established.

In Part III, cases involving inappropriate contact between health practitioners and patients are examined. The high level of crossover with criminal proceedings is noted, and consequences of these dual proceedings for the disciplinary process are explored. These include the incorporation of criminal law norms and modes of analysis, such as: a focus on recent complaint, patient prior inconsistent statements, practitioner mens rea, as well as the use of wiretap evidence obtained by police through a process which problematically required patients to re-engage with the practitioner.

Part IV addresses sanction. In that Part the key principles in disciplinary outcomes are first noted, and then areas of divergence in sanctions across jurisdictions and professions, and possible explanations for such variation, are explored. These include: varying degrees of importance placed upon 'denunciation' or general deterrence, jurisdictional difference in 'crediting' periods of interim suspension towards sanction, variation in the use of suspension rather than deregistration, deference to 'special skills', and the role of agreed facts and sanctions.

A The National Law and This Study

The National Law enacted in all the states and territories currently regulates 15 different health professions in Australia, comprising over 700,000 registrants. (15) While there is some jurisdictional variation in terms of which agencies undertake disciplinary investigations, (16) and slight differences in definitions and legislative provisions in some states and territories, the scheme has broadly uniform rules addressing unprofessional conduct and misconduct. (17)

The vast majority of formal complaints against health practitioners (which may be made as mandatory or voluntary notifications under the National Law) (18) are handled within the professional board system, in which matters are channelled into health, performance and conduct 'pathways' within each profession, if found to have some basis. (19) Practitioners with health issues are managed by an impaired registrants panel, while those with unsatisfactory professional performance or illegal, unethical or unprofessional conduct face a performance and professional standards panel. (20) An immediate action panel can be convened by the relevant board at any time if a risk to the public is identified. (21) Each pathway may result in the imposition of conditions on a practitioner's registration or an interim suspension. (22) The specific reasoning and outcomes of these processes are largely opaque to the public, with only very limited de-identified summary information released on a small number of matters, (23) and large-scale aggregate data on complaint types and outcomes. (24)

If the matter is of sufficient seriousness, such that there is a reasonable belief that the 'practitioner may have behaved in a way that constituted professional misconduct, the panel must refer it to a legally-headed disciplinary tribunal; (25) the only body with the power to deregister a practitioner altogether. (26) Tribunals are state-based and are chaired by a legal member with one, or sometimes two professional members, in addition to a non-practitioner or 'community' member. (27) This can be contrasted with National Boards (and their respective Panels and Committees), which are overwhelmingly dominated by members of the relevant profession. (28) Tribunals are the only body in the disciplinary system in which proceedings are generally held in public and reasons are publicly released (usually suppressing the names of patients but not practitioners). (29) The tribunal setting is therefore of significance as the site of determination of the most serious health disciplinary matters in a non-peer setting which is open to public scrutiny. (30)

This work was undertaken as part of a broader study which analysed the first seven years of available tribunal cases under the National Law, with the overarching goal of mapping the relationship between type of misconduct and outcome. (31) The study analysed all publicly available Australian tribunal-level decisions concerning complaints of serious misconduct and/or impairment brought against the five most populous regulated health professions from 1 July 2010 to 30 June 2017. The professions were, in order from most to least populous: nurses and midwives, doctors, psychologists, pharmacists, and dentists. The overall dataset comprised 794 cases, of which 765 involved proved matters.

Initial analysis found that doctors were less likely than nurses and psychologists to be deregistered in cases where sexual misconduct was proved. (32) This finding is consistent with the limited international research, particularly on recent disciplinary outcomes from the United Kingdom ('UK') (33) and New Zealand. (34) While the number of cases...