14th Greek Australian Legal and Medical Conference
Cape Sounion, Greece 2013

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Paper delivered on 3 June 2013 to the 14th Greek/Australian
International Legal & Medical Conference

Misconduct in the Medical and Legal Professions

The Honourable Justice Garde AO RFD, President of VCAT

1. INTRODUCTION

The Victorian Civil and Administrative Tribunal (‘the Tribunal’) is Australia’s largest administrative tribunal, having heard 89,470 matters in the 2011-2012 financial year, with a budget of $43 million in 2012/13. The Tribunal has a staff of 441, including 224 Tribunal Members, 17 of whom are Judges of the County and Supreme Courts of Victoria.

The Tribunal hears matters relating to disciplinary action taken against both medical and legal professionals, as well as reviewing decisions in relation to their registration. In the previous two calendar years, 95 proceedings of this nature were lodged with the Tribunal in relation to medical professionals, compared with 71 proceedings relating to lawyers. The medical proceedings include matters relating to psychologists and Chinese medical practitioners, as well as proceedings brought by the Nursing and Midwifery Board of Australia.

2. MEDICAL JURISDICTION

The Tribunal hears medical disciplinary matters in its Review and Regulation List, which also hears a wide range of matters from taxation to freedom of information, accident compensation matters and matters relating to the regulation of various other professions and occupations.

The Tribunal also hears proceedings of a medical nature in a number of other Lists. In the Human Rights List, the Tribunal hears matters under the Mental Health Act, which allows for the Tribunal to review decisions of the Mental Health Review Board in relation to involuntary treatment orders.

Also in the Human Rights List, the Tribunal reviews decisions of the Patient Review Panel as to whether to provide applicants with assisted reproductive treatment. These matters are of particular significance, as the decision of the Tribunal could effectively deprive a couple of the opportunity to have children.

In the Guardianship List, the Tribunal has the power to consent to ‘special procedures’, which are defined to include termination of pregnancy and permanent sterilisation, in relation to a person with a disability who is incapable of consenting to such a procedure.

a. DISCIPLINARY MATTERS

During the last two years, over 70% of the disciplinary proceedings finalised by the Tribunal involved a medical professional. Around 15% of proceedings involved psychologists, with a small number of proceedings involving nurses, midwives and Chinese medical practitioners.

The major issue for all kinds of medical professionals was the forming of inappropriate relationships with clients. While a number of the medical disciplinary matters involved various issues, around 25% of disciplinary cases involved a medical professional who had formed an inappropriate social or sexual relationship with a patient or former patient. One case involved a psychologist who had engaged in a sexual relationship with a female patient while seeing both her and her husband for counselling in relation to their marriage.

The next most common allegation against medical practitioners was that they had administered improper procedures or treatments to a patient. This includes the administration of a procedure that is considered to be inappropriately sexual. One example involves a patient who went to see her doctor because of pain in her hand. During the examination, the doctor conducted a thorough examination of the patient’s breast implants, and the patient complained to the Medical Board. At the hearing, it was held that the procedure had been completely appropriate and medically justified, but that the patient had simply not understood why it was being performed. As a result, the doctor was cautioned and reprimanded for failing to obtain the patient’s informed consent.

Other allegations made against medical practitioners involved the use and inappropriate prescription of narcotics and addictive drugs, failure to keep adequate records, and practising while their registration was cancelled or suspended.

b. WITHDRAWN CASES

Roughly one-third of the disciplinary proceedings that were brought against medical practitioners during the relevant period were withdrawn. This reflects the fact that the relevant Board often enters into an arrangement with the practitioner concerned, providing for further education, supervision and/or conditions being placed on their registration. In return, the Board will withdraw proceedings that have been instituted within the Tribunal. On occasion, this leads to proceedings being re-instated if there is a breach of the conditions of the agreement by the practitioner.

In one case, the Medical Board commenced disciplinary proceedings against a medical practitioner who had allegedly acted inappropriately while conducting an examination of a female patient. The Board claimed that the practitioner concerned had made inappropriate comments to the patient, had watched her undress and had conducted a physical examination in an inappropriately sexual manner.

The practitioner entered into an agreement with the Board that he would not conduct any examination of a patient under the age of 18, or a female patient aged 18 or over, without a chaperone being present. However, the Board was later notified by the practitioner concerned that he had inadvertently breached the agreement. The matter was brought back to the Tribunal and the practitioner was reprimanded for the breach.

c. OUTCOMES

Where the allegations made against a medical professional are made out, there are a number of sanctions that can be applied by the Tribunal. The least of these is a caution or reprimand, which is a formal warning and acknowledgement of the practitioner’s wrongdoing. The most severe penalty that can be given is cancellation of a practitioner’s registration, accompanied by a disqualification from being able to apply for registration entirely or for a period of time.

The orders that are made by the Tribunal depend entirely on the facts of the case and the extent to which the Tribunal believes the practitioner poses any further risk of continuing to engage in the relevant conduct. In one matter, a female practitioner was found to have engaged in an inappropriate sexual relationship with a cleaner at the medical practice, who was a former patient of hers that she had seen on seven occasions. The practitioner had ended the relationship after a short period of time, and the two had seen each other on only a handful of occasions since. The relationship was consensual and had ended over a decade before the matter came to the Tribunal. It was not alleged that the practitioner had engaged in any inappropriate relationships with patients since that time. The practitioner was cautioned, reprimanded and ordered to undergo counselling in relation to the maintenance of professional boundaries between herself and her patients.

A far more serious case involved a practitioner who was charged with professional misconduct based on allegations that he had sexually penetrated a mentally ill patient while she was in his care. In that case, the practitioner’s licence was cancelled and he was disqualified from applying for registration for a period of five years from the date of the cancellation.

3. LEGAL JURISDICTION

Under the Legal Profession Act 2004, the Tribunal is able to hear various types of matters that involve legal practitioners. In the previous two calendar years, there were 316 matters of this kind heard and determined by the Tribunal. Broadly, these can be broken down into three categories: proceedings relating to costs, proceedings relating to civil disputes, and proceedings involving disciplinary action against the legal practitioner.

Costs disputes typically involve either a complaint by a client that a bill of costs rendered was excessive, or a complaint by a client that a costs agreement entered into with a practitioner is invalid and unenforceable. 123 legal matters of this nature were finalised in the Tribunal during the relevant period.

The Tribunal’s civil disputes are often heard in the Civil List, and involve any kind of civil claim against a practitioner in relation to the conduct of proceedings. These matters may also involve a practitioner taking proceedings against a client for failing to pay legal fees after a bill of costs has been rendered. 122 of the matters relating to legal practitioners during 2011 to 2012 involved civil disputes of some kind.

The Tribunal’s disciplinary proceedings, on the other hand, are typically disputes between a practitioner and either the Legal Services Board, the Legal Services Commissioner, or the Law Institute of Victoria. These matters may involve an application for disciplinary action to be taken against a legal practitioner in relation to allegations of professional misconduct or unsatisfactory professional conduct. Alternatively, a legal practitioner may apply to the Tribunal for a review of a decision of the Legal Services Board refusing to renew his or her practising certificate on the basis of professional misconduct or unsatisfactory professional conduct. 71 of the 316 matters relating to legal practitioners during 2011 and 2012 related to disciplinary action.

a. WITHDRAWN CASES

As with the medical professional cases, a large number of proceedings in the legal jurisdiction are withdrawn. In the 2011 to 2012 calendar years, roughly 20% of legal practitioner proceedings were withdrawn or struck out. A further 10% of these matters were dismissed as the claims had not been proven on the facts. Nearly all of the matters that were withdrawn, struck out or dismissed were costs disputes. In contrast, nearly all of the allegations in the disciplinary proceedings were found to have been made out, and penalties imposed on the legal practitioners as a result.

b. DISCIPLINARY MATTERS

The most common issue in dispute in legal disciplinary proceedings is inadequacy in the running of trust accounts. Around 30% of all legal disciplinary matters involved a practitioner who had in some way caused a deficiency in a trust account. A typical sanction in these circumstances is to make the practitioner’s practising certificate subject to the condition that he or she is not entitled to receive trust monies for a period of time. A small number of matters involved practitioners who had had such a condition placed on their practising certificates, and yet continued to receive trust monies.

The second most common issue to arise in relation to legal disciplinary proceedings is that of misleading statements, with a number of practitioners having disciplinary action taken against them for making false or misleading representations to the Court or to clients. Other issues that arise in applications for disciplinary action against legal practitioners are conflicts of interest, misappropriation of disbursements, breaches of undertaking and failure to communicate.

One issue that arose in the course of disciplinary proceedings involved a legal practitioner who had acted improperly during the course of family law proceedings. The practitioner had acted for himself in divorce and property settlement proceedings that had become quite bitter over the course of time. It was held that the practitioner had acted improperly in conducting the proceedings, and that he had made false allegations against Court officials in various affidavits that were put to the Court. The practitioner’s practising certificate was cancelled, and he was disqualified from applying for another practising certificate for a period of 2.5 years.

c. OUTCOMES

The sanctions applied in legal disciplinary proceedings are very similar to those applied in relation to medical professionals. In legal proceedings, practitioners can be reprimanded, fined, have their practising certificate suspended or cancelled, or be subject to any other orders the Tribunal considers appropriate. During the 2011 to 2012 calendar year, the majority of matters resulted in the legal practitioner concerned being reprimanded, with a fine also being imposed in a large number of matters.

The most severe penalty that was imposed over the course of the relevant period involved a party who did not hold a practising certificate. He had held himself out as being a legal practitioner, had been retained to act in a legal proceeding by a client on this basis, and had then misled the Court as to the capacity in which he appeared in the matter. The party was declared to be a disqualified person for a period of three years.

Monetary issues that involved an element of dishonesty typically resulted in suspension, with legal practitioners having their practising certificates suspended in relation to tax offences and the deliberate retention of money that was to be paid to third parties for work performed for a client on the instructions of the legal practitioner.

4. ANTI-DISCRIMINATION JURISDICTION

One important area of law in which the Tribunal hears and determines matters in relation to misconduct is the Human Rights List, in which matters can be commenced under the Equal Opportunity Act 2010. Medical and legal practitioners may find themselves in this List if they are subject to complaints of sexual harassment, as occurred in a recent case in the Tribunal.

In this particular matter, the principal of a legal practice had allegedly sexually harassed a law graduate who was completing her placement there in order to gain admission as a legal practitioner in Victoria. It was alleged that the principal legal practitioner had subjected her to conduct over a period of months that constituted sexual harassment,  including but not limited to inappropriate sexual comments and conduct, persistent requests for sexual intercourse and viewing and showing the complainant pornography in the workplace. The complaint was made out, and the legal practitioner involved ordered to pay $100,000 in compensation to the law graduate.

5. CONCLUSION

During the 2011 to 2012 calendar years, more than three times as many proceedings were heard and determined in the Tribunal that involved legal practitioners, when compared with medical practitioners. However, when looking solely at disciplinary action taken against the professions, medical practitioners are the subject of allegations more often than legal practitioners.

The outcomes and sanctions involved in these matters are similar, but the nature of the allegations is different. Medical practitioners are most often alleged to have engaged in an inappropriate relationship with a patient, whereas legal practitioners are most often the subject of allegations relating to mismanagement of money and/or dishonest conduct.