Patient says that the Practitioner had an affair with his wife

  • 25 Feb 2016

The appellant in this matter was suspended from practising as a registered health practitioner for a period of four months from 7 December 2015. A patient had alleged that the practitioner had an affair with his wife, who was also a patient of the practitioner. The patient also alleged that DNA testing had confirmed that the practitioner, and not him, was the father of the two children who the patient previously believed he had fathered. The Tribunal found the practitioner guilty of professional misconduct. Whilst the practitioner admitted having a sexual relationship with a patient he contested that it was unprofessional conduct (the lesser charge) and not professional misconduct.

On appeal the practitioner argued that the Tribunal had made an error as to the nature of professional boundaries, misdirecting itself as to how the patient safety could be put at risk and erred in categorising the appellant’s conduct as professional misconduct. Further, it was alleged that the penalties imposed were manifestly unjust.

The Court concluded that the basis for the Tribunal’s finding of professional misconduct was that he had failed to keep the relationships with the patient distinct and had violated patient boundaries The findings of fact were not so unreasonable that no reasonable decision maker could have made them. In relation to reliance on guidelines, the Tribunal was perfectly entitled to quote from publications of professional bodies and to take account of those guidelines. The Tribunal’s treatment of these guidelines did not elevate them to a prescription. The Court confirmed a previous Tribunal decision that guidelines simply repeat long established ethical principles relating to medical practitioners.

The Court found that there was nothing in the reasons to indicate that the Tribunal had elevated the objective of public health and safety to the prime consideration.

The Court concluded that no error of law had been made by the Tribunal and it was a matter for the Tribunal to determine what weight should be given to the different objectives in the legislation, to determine whether in all of the circumstances the practitioner’s conduct amounted to professional misconduct and to determine the appropriate consequences. As such the appeal failed and the Tribunal’s orders remain in force.

Post by Karen Kumar and Cameron Leaver 

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