Medical Board of Australia v Vucak
[2015] QCAT 367
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- Medical Board of Australia v Vucak[2015] QCAT 367
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Medical Board of Australia v Vucak[2015] QCAT 367
Medical Board of Australia v Vucak[2015] QCAT 367
CITATION: | Medical Board of Australia v Vucak [2015] QCAT 367 |
PARTIES: | Medical Board of Australia (Applicant) v Mark James Vucak (Respondent) |
APPLICATION NUMBER: | OCR117-14 |
MATTER TYPE: | Occupational regulation matters |
HEARING DATE: | 18 August 2015 |
HEARD AT: | Brisbane |
DECISION OF: | His Honour Judge Horneman-Wren SC, Deputy President |
DELIVERED ON: | 20 August 2015 (ex tempore) |
DELIVERED AT: | Brisbane |
ORDERS MADE: |
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CATCHWORDS: | PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – MEDICAL PRACTITIONERS – DISCIPLINARY PROCEEDINGS – PROFESSIONAL MISCONDUCT AND UNPROFESSIONAL CONDUCT – DEPARTURE FROM ACCEPTED STANDARDS – where registered plastic surgeon engaged in a sexual relationship with a patient during the course of the therapeutic relationship – where medical practitioner admits to conduct that constitutes unsatisfactory misconduct – where medical practitioner not found to have engaged in a sexual relationship with a patient at the end of the therapeutic relationship Health Practitioner (Disciplinary Proceedings) Act 1999 (Qld) Chiropractic Board of Australia v Brubaker [2015] QCAT 30 Medical Board of Australia v Jones [2012] QCAT 362 Medical Board of Australia v North [2012] QCAT 546 Medical Board of Australia v Putha [2014] QCAT 159 |
APPEARANCES and REPRESENTATION (if any): | |
APPLICANT: | Ms K McMillan QC instructed by Rogers Barnes & Green Lawyers. |
RESPONDENT: | Mr G Diehm QC instructed by Ashurst Lawyers. |
REASONS FOR DECISION
- [1]Dr Mark James Vucak is a specialist plastic and reconstructive surgeon who, through is medical business, Queensland Plastic Surgery, practices in Townsville, Mount Isa, Mackay and Rockhampton. The Medical Board of Australia’s referred disciplinary proceedings to the Tribunal in which it alleges that Dr Vucak has engaged in conduct which constitutes unsatisfactory professional conduct under the Health Practitioner (Disciplinary Proceedings) Act 1999. The Disciplinary Proceedings Act has been repealed, but these proceedings were able to be continued and determined under that Act as though it had not been repealed.
- [2]The conduct of Dr Vucak giving rise to the disciplinary charges, concerns a relationship with a former patient, AB, who resided in Rockhampton. Dr Vucak admits certain of the conduct. He admits that he had sexual intercourse with AB on four occasions between 5 September 2006 and 28 November 2006. On each occasion, the sexual intercourse took place in a motel in Rockhampton, where Dr Vucak routinely stayed when visiting that city for work.
- [3]Dr Vucak admits that this conduct, as admitted by him, constitutes unsatisfactory professional conduct in that it is misconduct in a professional respect.
- [4]In its referral, the Board alleges that by engaging in a sexual relationship comprising those four occasions of sexual intercourse, and another in May 2007 which Dr Vucak denies, he exploited the therapeutic relationship between him and AB. The Board alleges that the sexual relationship occurred either during the currency of the therapeutic relationship or when insufficient time had elapsed since it came to an end.
- [5]Although only a particular of the now admitted sexual relationship, and thereby the now admitted exploitation of the therapeutic relationship, whether the further sexual intercourse took place on 15 May 2007 requires determination because, if it did, given other considerations, particularly that AB had again consulted with Dr Vucak on 18 April 2007, it would compound his misconduct in such a way as to affect the sanction which would be appropriate.
- [6]The Board separately alleges that Dr Vucak exploited the therapeutic relationship with AB on two occasions. First, on 29 January 2005 during a consultation with AB by requesting her to join him for dinner. Secondly, on the occasion of the consultation on 18 April 2007. It is alleged that at the end of that consultation Dr Vucak evidenced a desire to have sexual intercourse with AB by pressing himself against her from behind and touching her breasts, during which time he had an erection. Dr Vucak denies each of those allegations.
- [7]It is for the Board to prove the allegations it makes. The standard of proof is the civil standard, but as explained in Briginshaw v Briginshaw by Dixon J where his Honour observed:
Reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequences of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the Tribunal. In such matters, “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony, or indirect inferences.
- [8]In her affidavit filed on 17 November 2014, AB said the following of events in May and June 2007:
[49] I recall a couple of occasions after the April 2007 consultation where I saw Dr Vucak early in the morning along the Fitzroy River. It appears he had gone for a run. I was coaching my rowing crew. We didn’t speak to each other as he was too far away.
[50] At some time in May 2007, I telephoned Dr Vucak and left a message for him to call. I was after an explanation as to why he had acted as he did at the April 2007 consultation and was seeking an apology. He rang me back. We agreed to meet at the Coffee House.
[51] I attended at the Coffee House in May 2007 and met with Dr Vucak. He had booked the room. He answered the door to the room naked and I asked him to put some shorts on. We had a heart to heart conversation. I said I was thinking of leaving Rockhampton. He said he could set me up financially. It was quite apparent he could not accept that I wanted closure on our relationship and, in an effort to continue it, he would make promises and try to make me change my mind. By this time, my marriage had broken down. I felt confused, vulnerable and alone. I did have sex with Dr Vucak that evening, but I was very upset afterwards as I felt that all his promises were only for the purposes of having sex.
[52] On the evening of 12 June 2007, Dr Vucak called me twice from the Mater Hospital in Rockhampton. He wanted to talk to me about things. I found the relationship with Dr Vucak very disturbing and I was confused by his constant emotional games, where there would be periods of non-contact and I assumed that the relationship was over [53] followed by him contacting me and wanting to see me again. I went to see Dr Vucak that evening at the Coffee House as I wanted to have closure on our relationship.
[54] I remember we meet (sic) in room 11A at the Coffee House. I recall Dr Vucak mentioning to me that this was his favourite room. We discussed a number of things regarding our relationship. He asked me what I would do if I fell pregnant. I said that I would raise the child in Sweden. I asked him for an apology for the way he had treated me in the consultation in April 2007. He did not give an apology.
[55] I saw him go to the bathroom and remove his clothes. I noticed there was a condom on the bedside table. I refused to have sex with him and told him I was leaving Rockhampton for good, as I felt it was the only way to remove him from my life. He didn’t take me seriously and told me, in a provocative way, that if I did not remove my clothing he would do it for me. When I refused again he got angry and said that I did not respect him as a doctor and that I did not care about him. He then packed his bags and then left me alone in the room. He returned shortly afterwards and said I was a stalker and had no respect for him. He then left the room again. I left the room after about an hour. I was very upset.
- [9]At the commencement of day 1 of the hearing, Ms McMillan QC, who appeared for the board, very fairly informed the Tribunal that in the conference with AB the previous day she had expressed some confusion about her recollection of matters which occurred in May and June 2007.
- [10]Particularly, AB had referred to the events set out in paragraph 51 and said that she may have confused the events of May 2007 with those of June 2007. Ms McMillan, further informed the Tribunal that she had been told by AB that morning that, upon further reflection by AB, she was satisfied that what was recorded in paragraph 51 of her affidavit was correct.
- [11]In respect of paragraph 54, Ms McMillan informed the Tribunal that, in conference, AB had told her that she had not said to Dr Vucak that if she fell pregnant she would raise the child in Sweden.
- [12]In respect of paragraph 55, Ms McMillan informed the Tribunal that, in conference the previous day, AB had said that Dr Vucak had not removed his clothes. Rather, he had removed his jumper. Also, AB had informed Ms McMillan that Dr Vucak had not said that he would remove AB’s clothes, but that the balance of what appeared in paragraph 55 was correct.
- [13]On the morning of day 1, AB had told Ms McMillan, again having considered the matter overnight, that Dr Vucak did, in fact, remove all of his clothes and that he had said words to the effect of, “Why don’t you remove your clothes? Or do you want me to do it for you?” AB had confirmed that the balance of what appeared in paragraph 55 was correct.
- [14]When called, AB gave further evidence-in-chief generally consistent with what she had most recently told Ms McMillan, and of which Ms McMillan had that morning informed the Tribunal. In respect of paragraph 54, AB said that she did not recall any conversation with Dr Vucak about what she would do if she fell pregnant.
- [15]Dr Vucak’s version of the contact which he had with AB in May 2007 was that he and a staff member returned after dinner to the motel where they were staying and went into the motel’s restaurant for coffee. There, he saw AB sitting alone. He did not attempt to converse with AB and she departed the restaurant while he and the staff member were still there. He had not made any plans to meet with AB and they did not have sexual intercourse.
- [16]In respect of June 2007, Dr Vucak said in his affidavit:
[44] In June 2007, AB rang and left a message for me. I called her back and agreed to meet AB for coffee as I wanted to achieve some closure on the relationship. AB was to come to my room when she arrived. Then we would go downstairs to the Coffee House for coffee.
[45] AB came to my motel room. When she arrived, she appeared anxious and irrational and said she had separated from her husband and was going to live with her daughter. She also said she wanted to have a baby with me, take it to Scandinavia, and bring up the child as a single mother. She then took her clothes off. I did not remove my clothes.
[46] At this point, I left the motel room because, despite my asking her to, AB would not leave the room.
[47] I left and went for a walk. When I came back, AB was still at the room. I then left the Coffee House Motel and checked in at the Leichhardt Hotel late that night. AB called me at 12.31 am. I did not take the call. When I came back to the Coffee House Motel the next morning, she was gone.
- [17]I am not satisfied to the requisite degree that the events of May and June 2007 occurred as alleged by AB. I accept that, after some eight years, AB may have some confusion as to whether particular matters of which she has a clear memory happened on one or other of two occasions only a few weeks apart. However, AB’s confusion goes further than that. It includes as to whether Dr Vucak fully undressed himself or merely removed his jumper in an apparent prelude to initiating sex between them. It is a detail of considerable importance; and one would think memorable if it involved his fully undressing and presenting himself to her in a naked state.
- [18]AB now denying any recollection of the conversation concerning pregnancy is difficult to reconcile with her quite detailed account of that conversation in her affidavit. Her affidavit was sworn only 11 months ago. It was, however, sworn seven years after the events were said to have occurred. To depose in November 2014 in detail to a conversation said to have occurred in June 2007 but to have no recollection of any such conversation, even to the extent of the subject matter, in August 2015 leaves one with considerable reservations as to the reliability of AB’s evidence concerning events at that time. This is particularly so when Dr Vucak deposes to a conversation concerning pregnancy and the potential Scandinavian upbringing of the child. Of course, Dr Vucak has AB initiating that conversation in the context of her expressing a desire to have a child with him.
- [19]In my view, Dr Vucak’s version of this conversation is to be preferred.
- [20]There are other aspects of AB’s evidence which militate against its reliability. When questioned of the means of transport she used in visiting the motel on the May occasion, she first said that she drove there, then she said she got a taxi there and hailed a taxi when going home, and then that she walked home. It is a small detail, and perhaps one easily forgotten after the passage of so much time. However, it was AB’s determination to provide the detail and to settle with apparent certainty on the final offered version which causes one to have reservations as to whether the evidence can be relied upon.
- [21]Also, given that both say that at the end of the encounter in Dr Vucak’s motel room in June 2007, he packed a bag and left, that, in my view, is more likely to have occurred if the events as recounted by him, rather than by her, were correct.
- [22]What casts greatest doubt, however, on AB’s versions of events in May in June 2007 is the absence of corroboration of them in the sources where one would most expect to find it: her complaint to the medical Board and her recounting of history to her psychologist.
- [23]On 13 August 2009, AB wrote a letter of complaint to the then Medical Board of Queensland. In it, she referred to having had a consensual relationship with Dr Vucak which ended in February 2007. She also complained of Dr Vucak making unwelcome sexual advances to her in the consultation of April 2007.
- [24]It is apparent from the letter that by that time AB had also lodged a complaint with the Anti-Discrimination Commission of Queensland.
- [25]Attached to her complaint to the Board was a copy of a statement apparently prepared with the assistance of her solicitor. The statement did not refer to the sexual relationship in 2006 which is now admitted. Rather, it commenced from the time at which that relationship, or that part of the relationship, ceased in November 2006. However, the fact that there had been a sexual relationship prior to that time was implicit in the statement. At paragraph 11, AB said:
Initially, Dr Vucak was very concerned that if I told anyone about the sexual relationship he would be struck off as he said this to me on three occasions.
- [26]In context, the sexual relationship to which AB was referring could only have been one which occurred prior to November 2006 because the statement disclosed nothing of any sexual relationship after that date. The only sexual matter to which she referred in the statement occurring after November 2006 was the inappropriate sexual conduct of Dr Vucak in the April 2007 consultation of which she was also complaining; but this could not be described as a sexual relationship and was certainly not what AB was referring to when using that expression.
- [27]Most relevantly, though, was the complete absence of any reference to the further sexual intercourse now said to have occurred on 15 May 2007. Had it occurred, one would expect it to have been referred to in AB’s complaint.
- [28]There was no logical basis for her to withhold disclosure of that aspect of Dr Vucak’s conduct at that time. She had resolved to complain about his sexual misconduct. Her complaint was in the context of his having expressed his concern to her that revelation of the sexual relationship may see him struck off. If it occurred, it would have been the most recent sexual misbehaviour by him. She did make allegations about conduct said to have occurred in April. She even referred to events subsequent to April, but in a way which conveyed that there had been no further contact between them after that time. She said at paragraph 9 of her statement:
A few times after that consultation, Dr Vucak would visit the Fitzroy River early in the morning when he was in town and proceeded to watch me coach girls’ rowing on the river. I ignored him and pretended he wasn’t there. One time, when he thought I recognised him, he immediately got in his car and sped off.
- [29]It is now clear that that part of the statement was not correct, in that on any version of events there was at least the encounter between them at the motel in June 2007.
- [30]Also attached to AB’s complaint to the board was a report from a psychologist, Ms Phillippa Stunzner dated 14 April 2009, addressed to AB’s solicitor. Ms Stunzner refers to AB having consulted her for psychological therapy on three occasions between November 2009 and March 2009. Ms Stunzner expressed a caveat in her report that she did not record dates of events during her consultations with AB. That caveat may explain why the report records AB again consulting Dr Vucak in late 2006. On all versions of events, that occurred in April 2007. Inaccuracy of that date might also be explained by AB, at the time of consulting Ms Stunzner, having some confusion as to the precise timing of events.
- [31]That inaccuracy is immaterial. What, however, is relevant to the consideration of whether AB’s account now given of the relevant events of May and June 2007 should be accepted is the description, as opposed to the timing, of those events. The following appears in the report of Ms Stunzner:
AB had to consult with the man again as a patient in late 2006. She said that on entering the room for the initial consultation in his rooms, that he initiated sexual behaviour. She said that she was not expecting or welcoming of this.
AB said that she had to tell him that she was consulting him as a patient, that he’d discussed treatment with her, and before she left, again, initiated sexual activity. They recommenced a sexual relationship which included phone calls initiated by the man and meetings for sexual activity both within his consultations with her and other times.
- [32]The description of the consultation is apt to describe what AB says occurred in the 18 April 2007 consultation. However, the history of events following that consultation as recorded by Ms Stunzner is inapt to describe what AB now says occurred. Whilst the recommencement of a sexual relationship, without more, may have been apt to describe a further episode of sexual intercourse in May 2007, that aptness is eroded by the further description of events which AB apparently provided. The history provided by AB, as recorded by Ms Stunzner, was of several further sexual encounters. That history suggests sexual activity in more than one consultation, and outside of consultations on more than one other occasions. In fact, there were no subsequent consultations and AB now refers to only one time when there was sexual activity.
- [33]There are, in my view, simply too many inconsistencies in the versions of events recounted by AB for the Tribunal to be satisfied to the requisite degree that the events of May and June as alleged by AB occurred.
- [34]There is a further issue which causes me to approach the acceptance of AB’s evidence with caution. In the course of giving oral evidence, she referred, for the first time, to having fallen pregnant to, she believes, Dr Vucak in late 2006. She says she discovered that she was pregnant in December 2006 and lost the foetus in a miscarriage in January 2007. It seems quite improbable that had this occurred no mention would be made of it at any earlier time, particularly to Ms Stunzner, who she had consulted for psychological support because she wanted to stop feeling distressed and because she wanted to discuss what had happened with someone objective and to learn strategies to cope with her emotional pain.
- [35]These conclusions about the reliability of AB’s evidence concerning the events of May in 2007 and on other issues causes one to have reservations about her evidence concerning the consultation with Dr Vucak in April 2007. AB says that she had arranged an appointment to see Dr Vucak in Rockhampton on 18 April 2007. She says that appointment was arranged through his rooms in Townsville. The purpose was to seek further advice on laser resurfacing to hide scarring on her forehead from which she had, on two occasions, skin cancers removed. She says that Dr Vucak had previously encouraged her to have the procedure undertaken. She says that she did not have a referral from her GP for this procedure because Dr Vucak had informed her that a referral was unnecessary for cosmetic procedures.
- [36]Dr Vucak says that he was not expecting to see AB for a consultation on that day because she was not on his list and that she was what he refers to as a walk-in with no referral. This, he says, caught him by surprise. He says that AB did want to discuss laser resurfacing with him but that, at the time, he thought this was merely a pretext for her to see him.
- [37]On either of their versions of events, there was a discussion about the proposed procedure. Both say Dr Vucak said that he didn’t think that AB needed the procedure performed. Both say that there was a discussion about personal matters.
- [38]AB says Dr Vucak said why he thought they were compatible. She told him that their relationship was over. This had previously been discussed in February 2007 when AB had said she only wanted to see him in the future on a professional basis. She says that Dr Vucak went on to tell her that he was in love with another woman with whom he had previously had an affair. She perceived this was said to get a reaction from her. Dr Vucak also says that the discussion turned to personal matters, but that this was at the initiative of AB, who asked him about his relationships and made sarcastic remarks about them. He says that at that point he ended the conversation and left the consulting room.
- [39]AB says that Dr Vucak gave her an estimate for the surgery and some paperwork. He denies this. He says that he never discusses such matters with patients. It is clear that an estimate was provided together with some information covering the procedure. However, that was provided the following day in a letter from the surgery under the hand of the practice manager.
- [40]AB says that Dr Vucak moved his chair and endeavoured to pick her up and get her to straddle him. At this point, she dropped the diary she had with her and it was in her reaching down to pick it up that he pressed his erection against her from behind and touched her breast. All of this he denies. She says that she resisted his approaches and was hurt and angry because of the betrayal of her trust in wanting to consult with him only on a professional basis and to put an end to their personal relationship.
- [41]It is always difficult to resolve such oath against oath disputes of fact. However, other evidence leads me to conclude that AB’s assertion that she was only consulting Dr Vucak in April 2007 for professional reasons should not be accepted. The further contact which she had with Dr Vucak in May and June 2007 is more consistent, in my view, with her wanting to continue a relationship of a personal kind with Dr Vucak.
- [42]Further evidence of that is to be found in October 2008. She deposes to having called Dr Vucak at that time and having one short conversation with him in which he told her that he was no longer visiting Rockhampton and that he was moving to New Zealand. Telephone records established that AB had in fact sent text messages to Dr Vucak on four occasions that month.
- [43]Of course, AB’s desire to renew or maintain a personal relationship with Dr Vucak is not a matter to be held against her. Rather, it is the entirely understandable consequence of Dr Vucak’s misconduct and breach of the relationship of trust between doctor and patient and his abuse of the power imbalance which always exists in the therapeutic relationship.
- [44]In the circumstances, I am not satisfied that the events alleged concerning the April 2007 consultation occurred. The Board has, therefore, failed to prove the disputed facts in paragraph 1(b) of the referral.
- [45]As to paragraph 1(a) of the referral, Dr Vucak concedes that he may have asked for a restaurant recommendation but denies inviting AB to join him. AB said that this was the first occasion on which she thought that Dr Vucak had an interest in her, whereas he has them involved in a casual sexual encounter some years earlier. No earlier mention of this invitation was made to Ms Stunzner.
- [46]I am simply unable to be satisfied to the requisite degree that the invitation to dinner was extended.
- [47]Having preferred Dr Vucak’s evidence in respect of some of these issues does not mean that I accept him as an entirely truthful person.
- [48]I do not accept his evidence that he had sexual intercourse with AB prior to her referral to him as a patient. AB denies such an encounter. She contests the circumstances of her regularly being present at the Fitzroy rowing club in the early mornings during the period of time that Dr Vucak alleges. AB made no mention of any such encounter to Ms Stunzner. Given the matters that she did reveal there would seem no reason for her not to disclose this as part of the history. Her marriage had ended by that time. Indeed, if it had occurred it would have compounded the emotional games which AB told Ms Stunzner she believed Dr Vucak to be playing. It, no doubt, would also have added to the guilt which she revealed to Ms Stunzner concerning her having engaged in an extra-marital affair.
- [49]Of greater significance, however, in rejecting Dr Vucak’s evidence of this earlier encounter is that in his affidavit he describes one occasion when they met, kissed, and had sexual intercourse, after which he states he felt embarrassed as he believes AB was also. He expressly states that it was not the start of a relationship. However, in the initial response provided to the Medical Board to AB’s complaint, which response was provided through his solicitors by letter dated 8 October 2009, it was said:
Dr Vucak admits to having had a sexual relationship with AB but that occurred before she became a patient of Dr Vucak. After the sexual relationship ended Dr Vucak and AB remained on friendly terms, and that friendship continued after she first consulted with Dr Vucak and after her referral from Dr Powers.
- [50]In a further response provided by his solicitors on 29 September 2010, it was stated that he repeated and relied upon those matter. It was also said:
Dr Vucak admits that he spoke to AB on a number of occasions advising that he could not and did not intend to have a relationship with her after she became his patient because it compromised his professional position.
- [51]Those responses refer to him having had a ‘sexual relationship’ with AB; a sexual relationship which, at some point, ended. These are the very things which he denies in his affidavit.
- [52]Furthermore the denial of any sexual relationship after AB became a patient was untrue, and one can only infer, deliberately so.
- [53]The obvious inference to draw is that, knowing he had in fact engaged in a sexual relationship with AB, Dr Vucak was falsely asserting that it had occurred prior to any treating relationship and thus not in a context which would make him liable to professional discipline. This is consistent with his having discussed with AB that the sexual relationship could have some bearing on his registration. He accepted in cross-examination that some such conversation occurred.
- [54]Dr Vucak’s evidence in cross-examination that he only denied the allegations in paragraph 2 of the referral because of a technicality, that being the inclusion of the allegation concerning 15 May 2007, further demonstrates that he sees truth as a malleable commodity. It is quite apparent to me that his denial was because until recently he did not believe that the sexual relationship was an exploitation of the therapeutic relationship. His evidence in cross-examination was contrived and convenient.
- [55]Somewhat ironically, this rejection of Dr Vucak’s evidence concerning the earlier sexual encounter or relationship works in his favour. It makes his subsequent sexual relationship with her after she became a patient somewhat less reprehensible.
- [56]Dr Vucak should be sanctioned in respect of his admitted conduct, the Board having failed to satisfy me of any of the matters which remained in contest.
- [57]Dr Vucak has been slow and reluctant to his realisation that his conduct was inappropriate. I am told without prejudice admissions to the now-admitted acts of sexual intercourse were made in September 2014, but I do not know if misconduct was also admitted at that time. What is apparent is that even in giving his evidence before the Tribunal he demonstrated a less than desirable understanding of the error and risk in a plastic surgeon engaging in a sexual relationship with the patient. He referred to the brevity of consultations with the consequence, as he saw it, that no real relationship with the patient developed. He referred to the intermittent as opposed to continuous nature of the involvement of the surgeon with the patient.
- [58]Of course, as the facts of this case demonstrate, a patient of a plastic surgeon may well return intermittently for further treatment. This, in my view, emphasises rather than diminishes the risk.
- [59]The distinction which he would draw between surgeons and, for example, psychiatrists also, in my view, fails to appreciate that those who seek the services of plastic surgeons may have their own vulnerabilities.
- [60]That said, there is no real contention that the passage of time since these events occurred suggest that they are unlikely to be repeated thus diminishing the need for specific deterrence in order to ensure public protection. For that reason neither party suggest that the suspension of any suspension, which it has accepted that I will impose, is necessary or ought be made.
- [61]A number of letters in support of Dr Vucak have been tendered. They speak of his qualities as a surgeon and as a person. Many refer to their author’s belief that these events are out of character. Ms McMillan QC submits that this may be a product of the relationship having been clandestine. There is some strength in that submission.
- [62]There is also evidence of the impact which a suspension will have on the delivery of plastic surgery in the areas where Dr Vucak practices. I do not consider that to be a factor of great significance in this case. There is evidence from the manager of the practice which suggests that at least some of the patient load could be and will be absorbed within the practice itself. She and Dr Tassan both speak of the effects on public patients as does Dr Vucak himself; but there is no evidence directly from managers of any public hospitals as to their capacity or incapacity to replace the services currently provided by Dr Vucak.
- [63]Counsel for each of the parties have referred me to a number of authorities. As one would expect, those authorities demonstrate a wide range of periods of suspension often with part of the period itself suspended. Dr Vucak contends for a period of suspension of three months. The Board contends for a period of up to nine months.
- [64]The cases I have found to be of most assistance are Medical Board of Australia v North and Medical Board of Australia v Jones. In North the registrant’s registration was suspended for a period of three months. That order itself was suspended after one month provided that Dr North complied with certain conditions.
- [65]Dr North had engaged in a sexual relationship with a patient for a period of about three years. It was described by the patient as being a fling. Matters came to the Board’s attention on the complaint of Dr North’s former wife. Part of the referral to the tribunal concerned Dr North having initially denied to investigators unequivocally ever having had the affair. That denial was untrue. There, as here, it was accepted that Dr North did not present a risk to patient safety.
- [66]In Medical Board of Australia v Jones, Dr Jones’s registration was suspended for a period of six months which itself was suspended after two months, again subject to certain conditions being observed. There was, in Jones, however, a particularly aggravating circumstance. That was because Dr Jones had treated both the patient and her husband for conditions arising from the stress and anxiety that they were experiencing from work and their personal lives. Kingham DCJ, sitting as the Deputy President of the Tribunal, referred to those circumstances making it particularly reprehensible that Dr Jones had entered into a relationship with the patient. The period of suspension of six months was said to have reflected those aggravating circumstances, those circumstances being that he knew of and exploited the vulnerabilities of the patient and her husband, and his conduct had adverse effects on both of them.
- [67]There is no doubt in this case that the conduct of Dr Vucak has had adverse effects on AB. They are clearly set out in the report of Ms Stunzner. As I have also observed, the desire of AB to continue the relationship was as a direct result of the misconduct of Dr Vucak.
- [68]In light of the decisions in North and Jones, and that in this case the suspension will not itself be suspended for any period, I am of the view that a suspension for the period of three months is appropriate.
- [69]The Board has contended for conditions to be imposed on Dr Vucak’s registration. Ms McMillan conceded that the proposed chaperone conditions would not be appropriate in circumstances where the tribunal did not find that the April 2007 allegations were made out.
- [70]The further conditions related to education and mentoring. The education conditions would require Dr Vucak to complete a course concerning boundary violations and management within a period of 12 months. That is entirely appropriate. Indeed, it’s not opposed by Mr Diehm of QC who appeared for Dr Vucak.
- [71]The further conditions relate to mentoring. Given the nature of the allegations in this case and the passage of time since the events occurred I am not of the view that mentoring conditions are appropriate to be imposed.
- [72]The Board also seeks that Dr Vucak be reprimanded. In Medical Board of Australia v Putha the honourable J.D. Thomas AO, sitting as judicial member of the Tribunal, declined to order a reprimand in circumstances in which the registrant’s registration was cancelled. A similar view was taken by the tribunal as presently constituted in the Chiropractic Board of Australia v Brubaker.[1] In Brubaker it was said at 42:
In Medical Board of Australia v Putha the honourable J.B. Thomas AO, judicial member, noted that when the tribunal intends to make a more serious order it is unnecessary to also make an order reprimanding the registrant. I respectfully agree.
- [73]Upon further consideration of judicial member Thomas’s decision in Putha, that decision should properly be restricted to cases in which cancellation of registration is ordered as was the case there. As was pointed out by Kingham DCJ in Medical Board of Australia v Jones, the reprimanding of a registrant is a public denunciation of the registrant’s conduct and is to be recorded on the public register of practitioners. In my view, those observations are well made.
- [74]In this matter it is appropriate that Dr Vucak be reprimanded, and I would order that the reprimand be recorded on the Board’s register for a period of 12 months.
Footnotes
[1]QCAT [2015] 30.