A health practitioner argued that his sexual assault of a friend fell under the category of personal rather than professional misconduct
The Medical Board of Australia has issued a statement about a GP who went out to celebrate his birthday and after downing 17 alcoholic drinks, sexually assaulted a colleague.
The doctor faced the Victorian Civil and Administrative Tribunal, which heard that in July 2015, the doctor had been out celebrating his 35th birthday with his wife and friends.
After dinner, the group went to several other venues and continued to drink, and it is estimated that the doctor consumed 17 drinks that night.
One of the friends was a nurse who had previously worked in the same clinic as the doctor, and the two still worked for the same organisation.
She and her two children all slept at the home of the GP and his wife that night.
The Tribunal noted that at around 4am that morning, the nurse woke to find the doctor on top of her.
He then sexually assaulted her, kissing and biting her neck and shoulder. She woke and asked him what he was doing and where his wife was, and went to another room, where he followed.
She told him to leave her alone and went back to bed.
Twenty or so minutes later she woke up to find the doctor attempting to kiss her and telling her to “come on… come on”.
This gave rise to three charges of sexual assault.
While the doctor said he had no memory of these events, he pleaded guilty to a single rolled-up charge of sexual assault in February 2017.
He was convicted and sentenced to an 18-month community corrections order, 100 hours of community work, and received treatment and rehabilitation orders for alcohol abuse.
After his conviction the Medical Board referred the matter to the Victorian Civil and Administrative Tribunal in October 2017.
The Board sought to cancel his registration as a medical practitioner and disqualify him from re-applying for three years, alleging his conduct amounted to professional misconduct and unprofessional conduct as defined by the Health Practitioner Regulation National Law.
The National Law definition of professional misconduct includes “conduct of the practitioner whether occurring in connection with the practice of the health practitioner’s profession or not, that is inconsistent with the practitioner being a fit and proper person to hold registration in the profession”.
The Board said it was “virtually self-evident” that the sexual assaults were inconsistent with the practitioner being such a fit and proper person.
But while the doctor accepted that the alleged conduct had been proven, he claimed that he had engaged in personal, rather than professional, misconduct.
He submitted that for the conduct to have fallen under the definition of “professional misconduct,” there would need to be a connection to practice, while the assaults took place in “a private capacity”.
The Board argued that the assaults were repeated and against a vulnerable person who should have been safe in her friend’s home, and that they involved a serious criminal offence with a disregard for consent and personal autonomy – “both important values for a medical professional”.
It contended that, “there is a growing realisation of the significance of ‘domestic’ events, including domestic violence, and hence of their applicability to disciplinary oversight”.
“General practitioners in particular, are often first-line responders when their patients are subject to harm from such ‘domestic’ events.”
There was also a work connection in that the victim was a nurse working for the same organisation as the doctor.
The Tribunal decided that the behaviour did indeed constitute professional misconduct under definitions (a) and (c) of the National Law.
“The seriousness of the conduct was reflected in the conviction imposed,” it said.
“To violate the victim’s personal autonomy in the way he did was a breach of trust, unacceptably disrespectful to her, and inconsistent with the qualities expected in a doctor.
“It had severe negative repercussions for her, of a type which would have been quite foreseeable to [the doctor], especially given his role as a GP.
“It cannot be divorced from the professional context.”
The Tribunal also noted that there was a professional work connection given the victim was a nurse and they shared an employer.
In its finding it noted the significant effects of his assault on the victim. This included her resulting post-traumatic stress disorder, major depression, separation from her husband and isolation from friends.
By way of mitigation, the tribunal heard the doctor had moved to a town in Western Australia in late 2017 and has since made significant changes to his lifestyle, including working day rather than night shifts and significantly reducing his alcohol intake. He was also involved in contributing to a mental health support network for other doctors.
The doctor worked in an area of high demand for doctors with mental health, poverty, domestic violence, drug and alcohol abuse prevalent, it said.
More than five years had passed since his offending and there was no suggestion he presented a risk to patients or colleagues in a professional setting.
The Tribunal noted he acted quickly to report the charges against him to the Australian Health Practitioner Regulation Agency.
He had no prior adverse findings against him and had acted to eliminate the stress factors that affected him at the time of his offending. He was therefore considered at a low probability of reoffending.
The tribunal reprimanded the doctor and imposed a suspension of his registration for three months from 22 February 2021.