Guerrero-Diaz, Naty --- "Sexual misconduct, doctors and patient protection reform" [2017] PrecedentAULA 71; (2017) 143 Precedent 28

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The case of sexual abuse allegedly perpetrated against scores of patients by senior Melbourne neurologist, Dr Andrew Churchyard, made national headlines. The matter was the subject of disciplinary action by the Medical Board of Australia (MBA) through its administrative arm, the Australian Health Practitioners Regulation Agency (AHPRA). The case was also the subject of police investigation and prosecution; and civil proceedings were issued posthumously against his estate by a number of his former patients. Following significant media coverage and public outrage, the Independent review of the use of chaperones to protect patients in Australia was launched.^[1] The review was conducted by Professor Ron Paterson with the final report delivered in February 2017.^[2] The report made 28 recommendations which have been accepted by the MBA, and their implementation has commenced. However, questions remain about the adequacy of patient protection measures and the avenues for compensation available to victims.

In August 2016, news broke that Dr Churchyard had been accused of sexually assaulting two patients. It was further revealed that Dr Churchyard had in fact been committed to stand trial in relation to charges of sexually assaulting a 19-year-old patient, Tom Monagle. Before the charges could be determined, and after a magistrate had found that there was enough evidence for a jury to find him guilty, Dr Churchyard committed suicide.

Criticism was quickly levelled at the MBA and AHPRA, as it came to light that they had received Tom Monagle’s complaint of sexual misconduct by Dr Churchyard in May 2015, but had allowed him to continue to practise for a further 10 months (with restrictions). His medical registration was cancelled in February 2016, after AHPRA had received a notification from another patient – also alleging sexual assault – and while Dr Churchyard was restricted to seeing male patients, with a chaperone.

The case prompted AHPRA to release a statement confirming that the neurologist had been sanctioned as set out above, and also that he had received a caution in 2007 in relation to what the regulator termed ‘boundary violations’.^[3] As a result of that notification, the Medical Board of Victoria (as it then was) cautioned the neurologist to ensure that more information was provided to patients about the clinical indication for examinations that he conducted.

Due to his suicide, the criminal and disciplinary proceedings against Dr Churchyard were never finalised.

Victims did, however, avail themselves of the civil law and proceedings were issued posthumously on behalf of a number of former patients against Dr Churchyard’s estate.

The allegations against Dr Churchyard are shocking, by reason of both the nature of the alleged abuse and of the vulnerability of the patients who have come forward.

Court documents reveal that patients allege, among other things, that Dr Churchyard:

In respect of the restricted conditions that were imposed following Mr Monagle’s notification in May 2015, it is alleged by some of Dr Churchyard’s patients that:

Media outlets reported that some of the alleged victims also described nude examinations of gait, genital examinations, rectal examinations and, in some cases, examinations of erections and penile anaesthesia.^[4] In total, over 100 patients came forward with allegations of abuse by Dr Churchyard.^[5]

Unfortunately, allegations of sexual ’boundary violations’ by health practitioners are not uncommon. Some estimate the prevalence of sexual boundary violations by health practitioners may be as high as 6-7 per cent of all complaints.^[6] As at August 2016, AHPRA confirmed that 47 health practitioners were currently the subject of chaperone conditions due to concerns about inappropriate sexual behaviour.^[7] This figure does not disclose how many health practitioners have been the subject of such conditions historically, nor does it reveal why or when those conditions were lifted. For example, conditions may have been lifted due to allegations not being confirmed; the doctor’s registration being cancelled, suspended or restricted in other ways; or simply because the doctor was found to no longer pose a risk to patients.

The case of R v Medical Board of Australia^[8] resembles the allegations against Dr Churchyard. That case involved allegations of inappropriate sexual conduct against multiple patients, all of whom were of the same gender and of a young age. Chaperoning conditions were imposed following the initial notification but they were breached. In some instances, a chaperone was not even provided. There was also an allegation that inappropriate sexual conduct took place while a chaperone (the patient’s mother) was in the room but on the other side of the examination curtain. The disciplinary hearing involved nine victims and similar allegations of medically unnecessary and sexually motivated physical contact with patients. The case involved a review of the MBA’s decision to suspend the doctor’s registration in circumstances where he had been charged by police in relation to the allegations made by the victims.

The case of Young v Medical Board of Australia^[9] also involved sexual contact with multiple patients and breaches of undertakings and conditions imposed in relation to those improprieties.

Many other decided cases involve doctors engaging in sexually inappropriate examinations of patients in circumstances where the doctor has deceived or attempted to deceive the patient into thinking that examinations of an intimate nature are medically necessary.^[10] There is yet another category of cases where a doctor has used his or her therapeutic relationship with a patient to commence a consensual (albeit arguably exploitative) sexual relationship with a patient or former patient.^[11]

While one may wish to distinguish those cases from that of Dr Churchyard on the basis of the number of patients involved, it is important to remember that in the case of Dr Churchyard, despite over 100 patients eventually coming forward, if the disciplinary hearing had progressed it would have only involved the notifications of two patients: the first, Mr Monagle, whose complaint was the subject of the initial chaperoning conditions being imposed; and an unnamed second patient who notified AHPRA that he was assaulted in the presence of a chaperone in February 2016. This is because the other patients who eventually came forward did so after Dr Churchyard’s death and did not make individual notifications to AHPRA.

Further, it is widely accepted that the incidence of sexual misconduct on the part of doctors is likely to be under-reported.^[12] It has also been commented that even in cases of ‘consensual’ sexual contact (and even more so in the case of deceptive sexual behaviour), once media outlets report on disciplinary or criminal prosecutions, more patients come forward to report that they, too, have suffered at the hands of that doctor.^[13] The consulting room provides a unique opportunity for intimate contact, which coupled with the recognised power imbalance between doctors and patients, puts the patient in a particularly vulnerable position.

In April 2017, following the final report of the Independent review of the use of chaperones to protect patients in Australia,^[14] AHPRA released a statement to the effect that it planned to implement all 28 recommendations contained in the report.^[15] The recommendations fell into three categories:

‘[We] accept all of the recommendations of the report given Professor Paterson’s conclusion that the continued use of chaperone conditions in response to allegations of sexual misconduct is no longer consistent with community expectations and they are not always effective in safeguarding patients.

In August 2017, AHPRA and the MBA issued a media release reporting on their progress in implementing the recommendations. The media release states that:

While the implementation of the recommendations is commendable, doubts remain about the regulators’ ability to protect the public. In particular, criticisms regarding information provided to patients continue to be levelled at the regulator, even in cases of sexual misconduct being investigated by the regulators after the release of the commitments to implement the recommendations. In a case currently being investigated by the MBA, it was reported that the notifier had waited a year without an update of the progress of the matter, while the doctor in question continued to practise without any restrictions having been placed on his registration.^[18]

A further difficulty remains for victims of sexual assaults at the hands of doctors: accessing compensation. For all the changes that the MBA and AHPRA have promised, those changes cannot lead to compensation for victims. Currently, the Health Practitioner Regulation National Law (Victoria) Act 2009 (Vic) (the National Law) does not empower the Regulators to seek, nor the Tribunal or court hearing the case to order, any compensation for victims.

Where the doctor is charged and convicted of a criminal offence, the victim or victims can access compensation by making an application under the provisions set out in s85B of the Sentencing Act 1991 (Vic). While that provision aims to provide a low cost and straightforward avenue for compensation, it requires that the doctor be convicted and sentenced before compensation can be awarded. A review of the decided cases suggest that relatively few doctors are convicted of sexual offences against patients. Therefore, this avenue is available only to very few patients. Additionally, this avenue can only be accessed by the specific patients in respect of whom the doctor is convicted. Using the case of Dr Churchyard as an example, had the criminal prosecution ended in a conviction, the only patient who could have accessed compensation through this avenue would have been Mr Monagle. In order for the other victims to have been able to make an application under the Sentencing Act, Dr Churchyard would have had to have been charged and convicted in respect of the allegations of each of the remaining patients who came forward.

As has been reported, civil proceedings were issued against Dr Churchyard by a number of his patients. A confidential settlement, including a denial of liability, was released in August 2017.^[19] The settlement exemplifies the most common way that patients can access compensation from abusive doctors: through the common law. However, roadblocks still exist in accessing compensation in this manner. The primary roadblock is the doctor’s financial ability to pay any compensation.

It has long been recognised that in order to protect patients it is necessary to ensure that doctors are able to meet any compensation orders made by courts in cases where negligence is found. To this end, the National Law requires doctors to be insured in order to be registered as medical practitioners.^[20] However, the major medical insurers all exclude cover in relation to intentional or criminal acts of the nature discussed in this article.^[21] What this means for patients is that they are left in a precarious position if they are to institute proceedings because they cannot be assured that the practitioner, outside their insurance, would be in a financial position to meet any order made by a court. This is of particular concern when the practitioner has not worked for a period either due to suspension, cancellations or retirement, or when there are multiple victims such that the compensation to be paid is more than can be met by the assets, or where the practitioner’s assets have been depleted or are low. This results in the somewhat absurd situation that, when it comes to compensation, a patient is more assured of being able to access compensation if a doctor is found to have been negligent than if a doctor is found to have committed an intentional act of a sexual nature. Arguably, this leaves the most vulnerable patients in a position of further uncertainty and creates additional barriers to coming forward with sexual misconduct disclosures. Regrettably, no remedies to these issues have been discussed in this context to date.

Remedies to this situation are required if there is to be a true commitment on the part of government, regulators and the medical profession as a whole, to the safety and protection of the public. Similar remedies already exist in other areas, and could easily be adapted to ensure that vulnerable patients who have been preyed on by unscrupulous medical practitioners receive the financial assistance they deserve. Initiatives such as fidelity funds have proven successful in providing financial protection in legal services. Similarly, a requirement that insurers pay out claims to patients in the first instance and seek indemnity from the doctors themselves would shift the burden from the patient to the doctor (and through premiums, likely to the profession as a whole). Additionally, the ability of the MBA and AHPRA to seek payment of compensation to patients when a finding of sexual misconduct is made in a disciplinary context would also assist in streamlining the process and ensure that victims of sexual misconduct do not have to instigate separate legal processes in order to access compensation.

Following the shocking allegations of abuse reported in the media relating to Dr Andrew Churchyard, the MBA and AHPRA made commitments to change the system to provide more rigorous protections to patients. Unfortunately, despite adopting all recommendations made by Professor Ron Paterson in his review, the impact of these changes have barely been felt by patients whose notifications are currently under investigation. Additionally, no changes to the unsatisfactory situation faced by patients seeking compensation have been proposed to date. A true commitment to patient protection requires more radical changes to both the MBA and AHPRA’s processes and improvements to the victims’ compensation rights. The alternative leaves us in the position we currently face; much talk about change, but little in the way of practical improvements.

Naty Guerrero-Diaz is an Accredited Specialist in Personal Injury Law and a Senior Associate at Adviceline Injury Lawyers, Melbourne. PHONE (03) 9321 9721 EMAIL Naty.Guerrero-Diaz@alil.com.au.

Insurer policy wording current as at July 2017	Exclusion clause
MIGA	We will refuse or reduce a claim for cover under the Policy which relates to any Claims, Claim Costs or Expenses: other than in respect of Expenses, in any way related to Inappropriate Practice. Inappropriate Practice Means conduct by You such that We reasonably conclude that: (a) the conduct would be unacceptable to the general body of practitioners in the Category; or (b) the conduct would be unacceptable to the general body of the members of Your profession, including, but not limited to, sexual misconduct
MDA National	We will not indemnify you or make a payment under your Policy when: ...the matter for which you claim indemnity or payment arises in any way out of any actual or alleged: (a) sexual misconduct or criminal conduct
Avant	We will not cover you in connection with: ...any claims, any criminal or dishonest act or omission or deliberate or wilful breach of any statute, contract or duty of care by you [and] ...Sexual, bullying or discriminatory conduct any claims or circumstances under Part A: Civil liability arising from sexual harassment, sexual assault, sexual misconduct or any form of bullying or discriminatory conduct by you.
MIPS	We will not insure you: for any claim, investigation or proceeding arising out of or connected with any actual or alleged sexual harassment, sexual misconduct or unlawful discrimination by you. However, if it has been alleged that you sexually harassed, sexually misconducted yourself in relation to, or unlawfully discriminated against a person in the course of, or in connection with, your provision of healthcare and: (a) you deny the allegation or allegations; and (b) you have not been criminally charged in relation to the allegation or allegations; and (c) until there has been a court or tribunal finding against you in relation to the allegation or allegations we will cover the defence costs you incur in any disciplinary proceeding, proceeding before an administrative tribunal, inquiry or investigation, but only if you have obtained our consent to incur the costs before you incur them.

^[1] National Health Practitioner Ombudsman and Privacy Commissioner, Independent review of the use of chaperones to protect patients (2016) <https://nhpopc.gov.au/chaperone-review/> .

^[2] Professor Ron Paterson, Independent review of the use of chaperones to protect patients in Australia (2017) <https://nhpopc.gov.au/wp-content/uploads/Chaperone-review-report-WEB.pdf>.

^[3] AHPRA, ‘Statement from the Medical Board of Australia and AHPRA’ (Statement, 2 August 2016).

^[11] See for example XG v Medical Board of of Australia [2011] VSC 638, Re a Psychologist [2009] TASSC 70, Medical Board of Australia v Dr ZOF No. 2 (Review and Regulation) [2015] VCAT 379,

^[15] MBA and AHPRA, ‘Response: What we will do; Response to the Independent review of the use of chaperones to protect patients in Australia’ (Statement, 11 April 2017).

^[17] AHPRA, ‘Significant progress made on chaperone recommendations’ (Media Release, 4 August 2017) <https://www.ahpra.gov.au/News/2017-08-04-chaperone.aspx>.

Precedent (Australian Lawyers Alliance)

Guerrero-Diaz, Naty --- "Sexual misconduct, doctors and patient protection reform" [2017] PrecedentAULA 71; (2017) 143 Precedent 28