Warning! This blog post and links discuss sexual misconduct and may be disturbing to some people.
This week ABC TV’s Four Corners program – Do No Harm shone a much-needed spotlight on the issue of Australian doctors being allowed to practice despite breaking their sacred oath.
A six-month investigation into the health complaints handling process has found 500 health and medical practitioners have been sanctioned by tribunals for sexual misconduct involving patients since 2010. Around 160 are still registered to work.
In the program, several patients share harrowing stories from patients who were betrayed by their doctor – groped, dated, and even raped – and how the health regulatory system is failing to protect them and other patients.
The professional boundaries for doctors and health practitioners are pretty clear
The national boards for almost all health practitioners publish a Code of Conduct, which spell out the standards expected in the profession including expectations regarding professional boundaries.
The underlying basis of all therapeutic relationships is that the welfare of the patient is paramount. Health practitioners should dedicate themselves to meeting the needs of the patient above all.
The rules are in place for good reason. There is an inherent power inequality between a health practitioner and a patient. Patients are vulnerable for a range of reasons. A doctor’s office or health facility should be a safe place.
Having a personal or sexual relationship with a patient (even a former patient) is one of a number of professional boundaries that medical practitioners should not cross. There is recognition that, in limited circumstances such as in smaller communities such as rural towns, relationships with former patients may be acceptable. But the cases discussed by Four Corners go way beyond that.
The regulation is failing
In NSW, Australian Health Practitioner Regulation Agency (AHPRA) investigates complaints for 15 professional boards, such as the Medical Board and the Nursing and Midwifery Board. The Health Care Complaints Commission (HCCC) manages most NSW complaints.
Four Corners makes the point that while regulators investigate complaints, they can only recommend actions for professional boards or councils to take. The system isn’t set up to punish doctors, its role is to assess whether patients are at risk.
Conditions placed upon practitioners with proven disciplinary findings — such as mandatory education on professional boundaries — have never been independently tested to ensure they work.
Doctor and University of Melbourne law and public health professor Marie Bismark says the investment in training doctors is one reason to keep some practitioners working if they are rehabilitated, but she worries there’s not enough data on how practise conditions protect the public.
Former NSW Health Care Complaints Commission, Merrilyn Walton, says the only appropriate action for proven sexual misconduct is to permanently remove a person’s registration.
Practitioners assessed as posing a potential risk to public safety can be removed from AHPRA’s national register and disqualified from applying to return for a set time frame.
In every state and territory except NSW, the decision to allow a deregistered practitioner to return to work can be a secret. No one – not even AHPRA – knows how many people have been reinstated after losing their registration for sexual misconduct. This is another example of the lack of transparency in data for patients in Australia – an issue about which our firm has frequently called out.
AHPRA’s CEO told Four Corners that he supports making the process public, but laws would likely have to change. A regulator should have more certainty than that and governments should be changing laws.
The failure of chaperoning
One of the mechanisms historically in place to help prevent sexual misconduct from occurring is chaperoning by another practitioner or person. Our firm is running – and has run – cases for clients who have experienced sexual misconduct by doctors and other practitioners. It is clear from these cases – and the medical literature and research supports this – that chaperoning does not work.
One of the patients in the Four Corners program told how his neurologist Dr Churchyard asked him to strip naked during an appointment to discuss his Tourette syndrome. After it happened again in a subsequent appointment, he complained.
The Medical Board permitted Dr Churchyard to continue to practise while under investigation on the condition he treat male patients under the supervision of a chaperone. His registration wasn’t suspended until another man notified the regulator he too had been allegedly assaulted. More than 50 former patients settled against Dr Churchyard’s estate after he took his own life.
AHPRA and the Medical Board have since scrapped the use of mandatory chaperones and established a specialist committee that deals with sexual misconduct complaints after a review.
What to do if you feel your doctor or practitioner has behaved in a sexually inappropriate way?
Our team of health and medical lawyers has successfully helped a number of clients to make complaints and to seek redress and compensation after experiencing sexual misconduct by a health or medical practitioner.
Please contact us for a confidential discussion and advice on the best options to meet your needs. Call us on 1800 874 949 or fill out the contact form below, and we will be in touch.
