Health and Law: Professional Misconduct and Boundaries in Healthcare

This article discusses a case of professional misconduct in healthcare, where a doctor engaged in a sexual relationship with a patient. It explores the tribunal's findings, orders, and the importance of maintaining proper personal and sexual boundaries between health professionals and patients. The article also provides insights into the processes and procedures that a health service manager can implement to prevent such behavior in a health service.

Health and Law

Table of Contents
What allegations did the Tribunal consider in this case?...........................................................2
What orders did the Tribunal make?..........................................................................................2
What did the Tribunal say about the requirement that health professionals must observe
proper personal and sexual boundaries between themselves and their clients?.........................3
As a health service manager, what processes and procedures would you put in place to ensure
that this type of behaviour does not occur in your health service?............................................4
References..................................................................................................................................7
1

What allegations did the Tribunal consider in this case?
Dr Topchian was sexually involved with one of his patients. The Victorian administrative and
civil tribunal has asserted that doctor Topchian is guilty of unprofessional conduct as he has
engaged in sexual relations with the patient. Sexual relationships with patients are always
inappropriate as doctors are in a position of trust and if the doctor exploits the trust reposed
on him then he is guilty of professional misconduct. In this particular case, the conduct of the
doctor falls short of what was expected of him. The doctor brought disrespect to the
profession by reducing the trust reposed on him (Austlii, 2013).
Tribunal’s findings with respect to the allegations
According to section 77(1) and (2) of the Health Professions Registration Act 2005, the
Victorian administrative and civil tribunal after hearing the case is entitled to find out
whether the doctor has engaged in professional misconduct or the ability of the doctor to
practice is affected or the doctor’s performance has not been satisfactory or the doctor is not
of sound character. Section 3 of the Health Professions Registration Act 2005 (Vic) (HPR
Act) state that the act that violates or fall short of the expected standard of professional
conduct is termed as professional misconduct (Grant, 2010). The tribunal held that Dr
Topchian is guilty of professional misconduct under paragraph (b) of section 3(1) of the
Health Professions Registration Act 2005, which state that an act that violates or fall short of
the criterion of professional conduct as expected from a member of the profession of health
practitioner is termed as professional misconduct. In this particular case, the conduct of the
doctor falls short of what was expected of him. Dr Topchian is also guilty under section 5 of
the national law, which states that unprofessional conduct is professional conduct of a lesser
degree than expected from a health practitioner. Dr Topchian has made a grave ethical
mistake by trying to suppress his conduct. The tribunal awarded one-year suspension, a
reprimand and a two years professional supervision to the accused doctor (Kirton & Madunic,
2009).
What orders did the Tribunal make?
The Victorian civil and administrative tribunal after taking into consideration all the relevant
facts relating to the case has awarded a sentence of an year suspension of the registration
certificate, a reprimand and a two years of professional supervision to the accused doctor as
2

per section 77 of the Health Professions Registration Act 2005 and section 196 of the national
law. The mentor is to be engaged by Dr Topchian himself at his own expenses. The mentor
so recruited is required to send a report in writing to the medical board of Australia every
three months (Harvey, 2009). The tribunal wanted to ensure that the doctor must have the
realization of his mistake and will never establish a sexual relationship with his patients.
Section 77(4) of the Health Professions Registration Act 2005 state that the Victorian
administrative and civil tribunal has the power to determine whether to grant reprimand or
cancel registration or to disqualify from re-registration within a specified time.
Why did the Tribunal find it sufficient to make those orders?
The board suggested the tribunal to cancel Dr Topchian practising license for two years. Dr
Topchian argued that a suspension order of three months is appropriate. In the case, Wilks v
Medical Practitioners Board of Victoria the accused doctor’s registration certificate was
cancelled for a period of five years as the doctor had a past history of abusing women
patients. In the case of Dr Topchian, the registration certificate was cancelled for a year as he
has no past history of abusing women patients. In the case of Honey v Medical Practitioners
Board of Victoria, the accused doctor was in a sexual relationship with a patient who was
psychologically vulnerable and exploited her for six years and seeing by seeing the gravity of
the offence the tribunal cancelled his registration certificate for eighteen months. In the case
of Raschid v General Medical Council, it was held that the behaviour of the doctor was
inappropriate towards the girl, who was already from a broken family.
State the Tribunal’s view regarding the requirement of proper personal and sexual
boundaries between patients and health professionals?
The judgment was carried on the basis of the circumstances that sexual relationships are
always inappropriate between doctors and patients as doctors are placed in a position of trust
by the patient and if the doctors exploit the trust reposed on them then they are guilty of
professional misconduct. The Victorian civil and administrative tribunal has asserted that
doctors are guilty of professional misconduct if they get indulged in sexual relations with the
patients (Hughes, 2018). The patients expect that they should not be treated as potential
sexual parties by the doctor or that the relationship of doctor and patients should not be
sexualized. The doctors also should not use their consulting room to establish a sexual
relationship with their patients. This act will bring disrespect to the noble profession. In this
3

particular case Dr David Topchian a popular cosmetic surgeon had sexual relations with one
of his cosmetic surgery patients and was later suspended for one year from practice by the
Australian medical board. Beneficence can be found as the case shows that the doctor was
carrying out an unethical act and it is against the law and society. The principle of non-
maleficence depicts that an act should not harm others. Thus, the ethical principle clearly
directed that the judgment should be taken for the welfare of the people.
Why is this requirement necessary?
The ethical rules of conduct should guide the relationship of both the doctor and patients. The
rules of conduct shape their ethical conduct. A doctor has many roles in his professional life.
The general misconception that medical and ethics are two different subjects needs to be
cleared first. The practice of medicine has been described as a long, continuous ethical
moment. The medical etiquette is a set of moral principles that provide a guide to the
members of the medical profession. Mutual respect and understanding is the basis of a good
relationship (Ost, 2016). An honest medical Practitioner is essential for the welfare of the
patients and for the sake of the profession. The Australian medical association has
incorporated a code of ethics for the doctors. The code of ethics states that it is the primary
duty of the doctors to take care of the health needs of the patients. The patients trust their
doctors while disclosing any material facts if the doctors take advantage of such disclosure
the patients will lose faith in the doctor. The doctors must display the qualities of integrity,
compassion, and truthfulness towards their patients. The doctors are responsible for
protecting and promoting the health of individuals.
The ethical and legal standards explain that doctors must understand the uniqueness of each
patient and must work in partnership with the patient. Good medical practice is that which is
patient-centred. The doctors must meet the reasonable expectations of each patient. The
doctors must respect the culture and belief of his patient as recognizing the cultural difference
may affect the doctor-patient relationship. The doctor must take every step that ensures safe
clinical care. The doctors must balance the benefit and the harm associated with every
clinical-management decision (Hanna, 2013). The doctors must provide the best treatment to
the patient according to his knowledge. The doctors must take steps to ensure that whether or
not a cure is possible as per the symptoms of the diseases. The doctors must take medical
advice from their colleagues. The doctor should not prejudice patients care if the patient
himself is responsible for his condition. Any information received from the patient should be
4

treated as confidential by the doctor. Doctors could not exploit patient vulnerability or their
lack of medical knowledge while treating them. The doctors cannot force their patients to
lend money that will benefit the doctor immediately. The doctor cannot force the patient to
make donations to any organization (Watson, Gleeson & Higgins, 2013). The doctor must
inform the patient regarding the existence of any interest that could affect patient care. Good
communication is an example of good medical practice. The doctors must work within the
limits of their competency and area of practice.
There are certain legal provisions that penalize the doctors guilty of any professional
misconduct. The term professional misconduct has been defined in section 3(1) of the Health
Professions Registration Act 2005. Section 3 state that any act that violates the standard of
professional conduct that the doctors are ought to maintain is known as professional
misconduct. Professional misconduct is any such conduct of the health Practitioners
occurring whether during practice or otherwise that renders him unfit to carry out the
profession and is of such nature that establishes the bad character of the Health Practitioner
(Cunningham & Geller, 2018). According to section 77(1) and (2) of the Health Professions
Registration Act 2005, the Victorian administrative and civil tribunal after hearing the case is
entitled to find out whether the doctor has engaged in professional misconduct or the ability
of the doctor to practice as a doctor is affected or the doctor’s performance has not been
satisfactory or the doctor is not of sound character. Section 77(4) of the Health Professions
Registration Act 2005 state that the Victorian administrative and civil tribunal has the power
to determine whether to grant reprimand, cancel registration certificate or to disqualify from
re-registration within a specified period of time.
What processes and procedures would a health service manager put in place to ensure
that this type of behaviour does not occur in health service?
Ambiguity associated with ethical matters and decision making and conflicting values are the
most common factors that affect organizations. Doctors and patients should know their
boundaries and crossing that means violating the legal rules. People should be aware of the
ethical standards and principles because it results in the emergence of many legal issues. An
organization should create a framework within which the work should be carried out
explaining the ethical and unethical activities. Ethical factors should be taken into while
developing policies and making significant decisions (Oldham, 2015). The lack of
appropriate guidelines can encourage people to engage in unethical conducts. The case has
5

clearly depicted that the organizations have not or little ethical principles that were being
followed within the operations. It made the doctor engage in developing a sexual relationship
with the patient. The policies and frameworks play a crucial role in directing the behaviour
of the people within an organization. Leaders and managers are mainly responsible for the
implementation of the policies. Regular discussion ensures that employees and managers are
aware of the ethical issues and makes them easy to follow them. The creation of a code of
conduct can be an excellent measure to control unethical behaviour.
The violation of legal requirements and ethical standards has always to the rise of many
serious issues. The managers and leaders should always take into consideration in order to
ensure that the boundaries are not violated. The code of conduct will create criteria which
clearly show what is to be accepted and what is not to be accepted. Good examples can be
provided to the health care professionals about how they can behave ethically. The sexual
relationship between Dr Trochain and his patient shows that it was unethical as per the legal
principles. The organizations should keep the record of all the ethical and unethical conducts
(Thomas, 2010). The new employees should be informed about the necessary rules and
regulations. The employees should know the consequences of the violations of the policies.
The managers should take necessary stapes such as a warning or terminate in order to avoid
such acts in future. The employees who are loyal and trustworthy should be appreciated and
valued because it will encourage others to follow the same path. Showing appreciation on a
regular basis would promote loyalty. The organizations should create systems of balances
and checks in order to decrease the opportunities for the occurrence of unethical behaviour.
An annual audit should also be carried out to examine whether the rules and procedures are
appropriately followed or not. The hiring process should also be carried out in an appropriate
manner. It will allow the human resource manager to understand the behaviour and motive of
the employees. It should be very much clear to all the employees that disruptive behaviour
will not be accepted. The staffs should report their jobs on a daily basis and the leaders would
be responsible to monitor their activities. A positive culture needs to be developed among the
teams and also rewarding positive behaviours. The management would be responsible to
verify their processes within the organization.
The health care unit should adopt policies capable of preventing unethical conduct in health
care units. The health care facilities should raise awareness regarding the magnitude of the
existing problem. Ethical and legal consideration should be taken into account to prevent
such acts. The hospital authorities must be vigilant and aware of the doctor's aberrant
6

tendencies. The hospital must have oversight of what exactly happened under the roof and
when did that happen. The hospital bears a moral responsibility regarding whatever is
happening under its roof. Before employing any doctor, nurses and other health staffs the
hospital authorities should check whether or not the employee has any previous unethical
records.
Team collaboration is very essential to deliver smooth health care facilities to the patients. If
there is a lack of team collaboration and effective communication amongst the health care
practitioners the patient's safety will be jeopardized. Patient safety is also very much
important which can be at risk due to carrying out any unethical activities within the
organization. Effective teamwork is characterized by trust, respect, and collaboration.
Improved teamwork and effective communication among the health workers are the most
important factor in improving job satisfaction and clinical effectiveness (Solomon, 2009).
Various social, relational and organizational structures lead to a communication failure in the
health care units. Most of the hospitalized patients do complain of poor communication
system among the health staffs as sometimes they are ignorant of the fact which physician is
in charge of their care.
Basic training should be given to all the health care staffs to address any unethical issue. Such
training will impart awareness and knowledge among the health care staffs regarding how to
deal with sensitive cases more effectively. This kind of training will also help in reducing the
unethical approaches within the health care sectors as this problem is often left
unacknowledged in the health care sectors. Special training should be organized for doctors,
nurses and other health care staffs to understand the root cause of unethical behaviour. In the
present day health care system, numerous health care practitioners are involved in delivering
health services to the patients (Allinson, 2016).
7

References
Allinson, M. (2016). How to build and maintain trust with patients. Retrieved from
https://www.pharmaceutical-journal.com/eye-care/how-to-build-and-maintain-trust-with-
patients/20201862.article?firstPass=false
Austlii. (2013). Medical Board of Australia v Topchian (Occupational and Business
Regulation) [2013] VCAT 86 (1 February 2013). Retrieved from
http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/vic/VCAT/2013/86.html?
stem=0&synonyms=0&query=title(Medical%20Board%20of%20Australia%20and
%20Topchian%20
Cunningham, T., & Geller, E. (2018). Organizational Behavior Management in Health Care:
Applications for Large-Scale Improvements in Patient Safety. Retrieved from
https://www.ncbi.nlm.nih.gov/books/NBK43716/
Grant, J. (2010). International law (5th ed.). Dundee: Dundee University Press.
Hanna, A. (2013). article. Retrieved from https://www.nursingcenter.com/cearticle?
an=00006247-201301000-00007&Journal_ID=54013&Issue_ID=1485357
Harvey, C. (2009). Cornerstones of Australian law (5th ed.). Prahran, Vic.: Tilde University
Press.
Hughes, R. (2018). Tools and Strategies for Quality Improvement and Patient Safety.
Retrieved from https://www.ncbi.nlm.nih.gov/books/NBK2682/
Kenny, R. (2009). An introduction to criminal law in Queensland and Western Australia.
Chatswood, N.S.W.: LexisNexis Butterworths.
Kirton, J., & Madunic, J. (2009). Global law (5th ed.). Farnham: Ashgate.
Oldham, J. (2015). CEArticle. Retrieved from https://www.nursingcenter.com/cearticle?
an=00152193-201503000-00011&Journal_ID=54016&Issue_ID=2749109
Ost, S. (2016). Breaching The Sexual Boundaries In The Doctor–Patient Relationship:
Should English Law Recognise Fiduciary Duties?. Retrieved from
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4914704/
Solomon, R. (2009). Cornerstone law series (4th ed.). [Adelaide]: Law Society of South
Australia.
8

Thomas, G. (2010). Cornerstone law series (6th ed.). [Adelaide]: Law Society of South
Australia.
Watson, J., Gleeson, J., & Higgins, R. (2013). Historical foundations of Australian law (4th
ed.). Annandale, N.S.W.: Federation Press.
9