Legal Foundations in Healthcare Management

Sexual relations between a patient and a medical practitioner serving the patient are not rampant, but this does not mean that they are not there in the country. It is for this reason that the case like this one of Medical Board of Australia v Topchian (Occupational and Business Regulation) [2013] VCAT 86 is presented to the tribunal. Sexual relations cases are there only that most do not go further than negotiations between the two parties involved. However, for the current case, negotiations failed, and this is why it was reported to the medical board, and the proper channels were followed in solving it. The paper will critically analyze the entire case determining what conclusions were made and following on the basis of the decision.

To start off, there were some allegations made against Dr. Topchian and were presented to the tribunal for determination. Topchian was alleged to have had unprofessional conduct and professional misconduct. The allegations were arising from a sexual relationship he had had with a patient. Topchian was a cosmetic surgeon and engaged in sexual relations with a patient he was treating at the time. The professional misconduct and unprofessional conduct allegations were based on the Health Practitioner Regulation National Law Act 2009 (Vic) s196 and Occupational and business regulation list: Health professionals Registration Act 2005 (Vic) (HPR) s 77("Medical Board of Australia v Topchian (Occupational and Business Regulation) [2013] VCAT 86 (1 February 2013)", 2013).

Following the presentation of these to the Tribunal, the tribunal launched their investigations which would lead to further findings. One of the findings was that between 11th August 2009 and 31st October 2009, the accused Dr. Topchian was involved in professional misconduct. As defined in The Health Professions Regulation Act 2005 (Vic) section 3(1) paragraph (b), professional misconduct is unprofessional conduct that occurs more than once. When the misconducts are combined, they amount to conduct that is below the reasonably accepted standards of a health practitioner registered with the governing body with the level of experience and training. Dr. Topchian being found to having professional misconduct was based on him being engaged in a sexual relationship with a patient he was treating as a cosmetic surgeon. The second finding was that between 28th July 2010 and 15th September 2010, Dr. Topchian involved himself in behaviours that constituted of unprofessional conduct as defined by the Health Practitioner Regulation National Law Act 2009 (Vic). The allegations were found to be true in that Dr. Topchian participated in a negotiation with the patient in which case, his solicitor. In the talks, he proposed to pay an amount of money to the patient and in return, the patient remains quiet. The patient was to sign a document that stated that she would refrain from taking action or disclose the affair to anyone. To seal the agreement, the patient was also required to delete all the material from her laptop and her mobile phone that would lead to the discovery of the sexual relationship in the future. The tribunal’s findings were in consent with the parties involved in the case ("Medical Board of Australia v Topchian (Occupational and Business Regulation) [2013] VCAT 86 (1 February 2013)", 2013).

The tribunal had to make orders in relations to the case considering that there was substantial evidence against Dr. Topchian’s conduct as a health practitioner. One of the orders was that Dr. Topchian registration be suspended for one year where the suspension would be from the 1st of March 2013. The second one was that Dr. Topchian would be reprimanded. The third order was that Dr. Topchian would be required to consult a mentor on a monthly basis. The consultation would be for the entire time he was to be in suspension and two years after the suspension of his registration. The mentor will be required to report on Dr. Topchian’s progress in writing every three months to the Medical Board of Australia (the Board). The tribunal however made it known that the agreement between the mentor and the Board could be changed to a period they both seemed suitable. The fourth and final order that the tribunal made was that the engagement of the mentor would be at Dr. Topchian’s expense. All these determinations were made under the guidance of section 196 of the National Law and section 77 of the Health Practitioners Registration Act ("Medical Board of Australia v Topchian (Occupational and Business Regulation) [2013] VCAT 86 (1 February 2013)", 2013).

Various cases of similar medical practitioner misconduct were presented in argument and support of the orders made by the tribunal. One of them is that of Wilks v Medical Practitioners Board of Victoria that took place in 2007. In this case, the VCAT said that sexual relationships between doctors and their patients were inappropriate. The tribunal of the Wilks v Medical Practitioners Board of Victoria case argued that the medical practitioners are placed in a position where they have intimate knowledge of their patients which places them in a position where they can exploit the trust. According to the tribunal, the community expects not to be regarded as sexual potentials when they approach a medical practitioner nor their doctor-patient relationship get sexualized. The professionals should not also use the consultation room as a means to establishing sexual relations with patients as doing so would reduce the trust that community has in the medical profession. The case was the first to be used to find Dr. Topchian guilty of professional misconduct ("Medical Board of Australia v Topchian (Occupational and Business Regulation) [2013] VCAT 86 (1 February 2013)", 2013).

In ordering the suspension of the doctor’s registration rather than cancellation, the tribunal recognized that the doctor appreciated the harm that his actions had done to him and those around him, therefore, there would be no chance of repeating the actions. Therefore, there would be no need for harsher punishment like cancelation which would lead him to reapply for registration after a certain period of not practicing. Canceling his registration after self-reporting would lead to other practitioners fearing to report themselves after a case like this and may lead them to becoming victims of blackmail. What favored Dr. Topchian to receive a suspension rather than a cancelation is the fact that he accepted that he had done a mistake and was willing to correct it. The cases where practitioners receive cancelation of their license is where they do not seem to be remorseful for their actions and seem to dispute accusation even with overwhelming evidence ("Medical Board of Australia v Topchian (Occupational and Business Regulation) [2013] VCAT 86 (1 February 2013)", 2013).

On reprimanding the doctor, the tribunal recognizes that it has adverse effects on the medical practitioner, therefore, reminding them of their duty in the face of a lapse in their professionalism. On the order for Dr. Topchian to see a mentor, the tribunal cited the case of Honey v Medical Practitioners Board of Victoria. In the case, the practitioner was a psychiatrist who had intimate access to the patient’s body which was even worse because he had access to the patient's secrets that the patient may have never told any other human. The tribunal compared this to the nature of Dr. Topchian specialization in cosmetology which deals with the image and esteem of the patient which in a way may be psychological. The fact that Dr. Topchian failed to recognize that cutting the sexual relationship with the patient affected her psychologically lead to the tribunal's order for a mentor to the practitioner ("Medical Board of Australia v Topchian (Occupational and Business Regulation) [2013] VCAT 86 (1 February 2013)", 2013).

The tribunal assumed that a mentor would help the practitioner address the issues of boundaries with patients, note taking and even communication with the patients. According to the tribunal, engaging the mentor after the suspension for two years will help him cement the change in his behaviour when it comes to the way he relates to his patients.

The tribunal not only resolved the case but also shed some light on the issue of sexual boundaries between health professionals and their patients. As the Medical Board of Australia dictates, sexual relationships between a doctor and his/her patient are always inappropriate. The inappropriateness comes with the fact that medical practitioners are entrusted by the community where they can seek assistance without the fear of being sexually exploited and the only place they can expose their intimate parts of their bodies without the fear of the same. When a practitioner gets involved with a patient, it strips off the respect and trust on the practice hence the need for boundaries as projected by the tribunal ("Medical Board of Australia v Topchian (Occupational and Business Regulation) [2013] VCAT 86 (1 February 2013)", 2013).

The tribunal supported the argument that health professionals should maintain personal boundaries with patients citing that physicians have an advantage over the patients as they have access to their personal information and can use it to exploit them. It is therefore only appropriate to avoid situations that would cause erosion of these boundaries with time.

The requirement of a health professional to maintain proper personal and sexual boundaries is essential due to various reasons. One of this reasons is that patients seeking medical assistance in this facility place their trust in the processes and do not expect to be objectified the first time they approach the facility. The primary reason for their first visit to the medical facility is to seek assistance on a problem with which they are dealing. Sexual relationship defies their need and therefore presents an argument of whether the facility is helping the patients or using them through the practitioners. As required by the law, the patients’ rights must be protected. However, having a sexual relationship with the service provider violates this right whether the relationship is consensual or not.

The other reason is that crossing the boundaries has consequences to the patient, the doctor and the families of both parties. For example, for this case, Dr. Topchian had a wife and after the threat to expose him was made, he had to tell his wife about his affair. The consequences of this although not recorded in the hearing were problems in the marriage where the trust was broken, and probably this would never be recovered. The patient was psychologically affected by the breakup which in most cases impacts on self-esteem which she was trying to boost with the alterations she was making in her body. Other consequences were financial for the doctor where he had to stay away from work for an entire year and still had to cater for the mentorship expenses which would not be necessary if he maintained his professional boundaries.

Sexual relationships between a patient and physicians do not happen abruptly. Some factors facilitate this development. The relationship even though consensual is termed as exploitation for the patient and sexual misconduct for the medical practitioner. The misconduct has adverse effects on the public welfare and also individual people involved. For example, the case at hand, the twenty-one-year-old lady was psychologically affected when the cosmetologist decided to break things off. The doctor, on the other hand, would suffer consequences like cost on the expenses of the case and even paying the mentor. Other than this he would be forced to stay away from work for an entire year. The effects are even worse considering the damage to his reputation and even his family ties. Other than these the organization with which he was working would suffer an injury on their reputation especially because it was not solved internally but presented to the state’s tribunal which put it on the eyes of the public. The organization also suffers a loss of one of their doctors to a one-year suspension which would have been avoided if the surgeon maintained the patient-doctor relationship without sexualizing it. It is crucial for the for health service managers to implement policies and procedures that ensure that events like these do not happen or there is no repeat of the same.

There are many ways to control this in any health facility before it happens. One of the ways is by educating the physicians on the issue. Sexual misconduct has been inadequately addressed during training and needs a proactive approach considering that it is a problem that affects the public who seek the medical services. Little knowledge of the consequences of sexual misconduct by the physicians and the unknowingness that they are making a mistake when getting involved with the patients is one of the reasons why they get involved in the first place. Proper education of medical practitioners on the subject is the key to eliminating the misconduct. A health service manager can implement a program where when an individual is joining the team in the facility, is appropriately oriented and educate on this. Some of the areas that the program would tackle would be a proper definition of sexual misconduct and general behaviours considered to be sexual misconduct. A look at the consequences of the sexual misconduct to the individual, the patient and the facility at large. Finally, the implication sexual misconduct has on the community that depends on the health facility for services. With this, it will create awareness of how serious the issue is and can also highlight the steps that the health facility will take on the individual found in the wrong. With full awareness of the situation, one may not use the excuse of not knowing, therefore, help deal with the issue once and for all. Finally, the program should address the issue of boundaries and how to maintain them. Under this program, there should be a constant reminder of these topics through the publishing of newsletters and pamphlets within the health facility explicitly targeting the health practitioners.

Establishment of rules within the organization that are black and white for the medical practitioners is another way of dealing with the issue of sexual misconduct. Research conducted by Collier (2016) cites that in Canada when a medical practitioner starts a sexual relationship with a patient, the physician is supposed to terminate the professional relationship and if not he/she is considered to have professional misconduct. Whether the relationship is consensual or not does not matter. The same regulations also state that proper boundaries should be maintained between the doctor and the patient and any sexual relationship that arise between them are automatically defined as sexual abuse by the physician. With this in mind, harsh consequences follow, therefore, cases of patient-doctor sexual relationships are reduced. The same should apply for regulations established by any health service management. Clearly defined sexual misconducts that practitioners should avoid should be stated, and the consequences of each should be harsh to undermine any attempt at having these relationships. In doing this, it will ensure proper boundaries are outlined leaving little or no room for professional misconduct related to sexual relationships.

Another way to ensure that sexual relationship do not occur between a medical practitioner and a patient is a provision of support for the medical practitioners. Some practitioners may be going through a lot in their lives then a patient who seems friendly and caring consults them. At this moment the health practitioner may be vulnerable and read into the patient’s attitude towards them and there and then a sexual relationship erupts. An example of this is that of Dr. Simon Holmes, a psychiatrist in the United Kingdom. Simon had lost his girlfriend to a brain tumor before meeting a patient who had come out of a relationship. Simon asked the lady patient out for lunch because he needed a shoulder to cry on and this lady was good enough to offer it to him. It is during the lunch out that the lady told Simon that she had joined a dating agency to try and find love and at that moment, Simon proposed to the lady that she should quit the agency and they should try having a relationship. Though reluctantly the lady quit the site and after a while, they got married (Collier, 2016). The example gives a clear indication of moments of weakness as a human being because even with rules, without proper support system anyone is vulnerable at a given time. Support systems for medical practitioners not only provide a platform for them to air their problems but also helps strengthen the physicians’ ability to resist getting involved with their patients. With a proper support system, it is easier for the practitioners to report sexual advances by patients hence allowing for appropriate steps to be taken to avoid more significant problems that result from sexual relationships between a medical practitioner and a patient.

The other way the management can ensure that sexual relationships do not occur between the doctors and patients is by clearly stating the boundaries that each party should not cross and insist on the level of professionalism a physician should maintain. Without even mentioning them, patient-doctor boundaries exist. They include the role, space, time, place, money and gifts, clothing, physical contact and even language. Sexual misconducts begin with violation of minor boundaries, and before the parties involved know it, they are already in a sexual relationship.

There are some stages in which a relationship between a doctor and a patient goes through to mature into a sexual relationship. The stages include gradual erosion of neutrality in therapy where the parties involved become subjective, and their objectivity is compromised. What follows is socialization of therapy where instead of the physician seeing the patient as a patient, he/she start seeing them as a person with whom they could also talk. The socialization is followed by special treatment of the patient by the doctor, and the doctor starts to self-disclose to the patient. Physical contact is established and before even realizing extra therapeutic contacts are established leading to dating and finally sexual intercourse (Hall, 2001).

Clear and concise rules should be put in place to enable the physicians to know when their relationship with the patients are crossing the boundaries. A proper outline on how to deal with this should be provided by the management so that the individual may be able to avoid the misconduct at all cost and as soon as possible before it moves down the stages.

Finally, the management should ensure that they have profiled the physician before hiring them. Understanding the physicians’ history will enable the management know what support system is needed for him/her so that there are no misconducts due to personal problems. Profiling will also help with not only misconduct but with a better provision of services to the community at large.