Professional misconduct occurring in a non-professional environment
Synopsis
The case involves a finding by the Victorian Civil & Administrative Tribunal (The Tribunal) that Dr Arulanandarajah engaged in professional misconduct when he sexually assaulted a co-worker whilst in a drunken state after celebrating his 35th birthday.
The Tribunal reprimanded and suspended Dr Arulanandarajah’s registration for a period of three months.
The decision involved a determination as to whether the conduct amounted to professional misconduct at as per (a) or (c) of the definition set out in the National Law, being either:
- unprofessional conduct by the practitioner that amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and/or
- conduct of the practitioner, whether occurring in connection with the practice of the health practitioner’s profession or not, that is inconsistent with the practitioner being a fit and proper person to hold registration in the profession.
The Tribunal found that the conduct amounted to professional misconduct within the meaning of both (a) and (c) above.
Facts
On 9 July 2015 Dr Arulanandarajah, a general practitioner, went out to dinner with his wife and friends to celebrate his 35th birthday. A nurse practitioner who he worked with at the same clinic was also present at the celebrations and stayed at Dr Arulanandarajah’s house with her two children and his family.
The nurse practitioner awoke at 4am to find Dr Arulanandarajah on top of her and sexually assaulting her. He grabbed her arm in the bathroom and also pulled her down onto a bed with him. These events occurred in the space of approximately 20 minutes.
Dr Arulanandarajah was charged with three counts of sexual assault and pleaded guilty to a single rolled up charge of sexual assault on 9 February 2017. The Magistrate imposed a conviction and an 18 month community correction order. This included 100 hours of community work, treatment and rehabilitation orders for alcohol abuse.
The Medical Board (the Board) brought a single allegation of professional misconduct arising from the above events. Dr Arulanandarajah admitted to the conduct in the statement of agreed facts.
As a result of the circumstances Dr Arulanandarajah moved to Kalgoorlie Western Australia and readjusted his work practices and lifestyle to only work 9 to 5 instead of late shifts and abstained from alcohol for 12 months.
Immediate Action
The Immediate Action Committee (IAC) considered taking immediate action on two occasions, the first after the charges were laid and the second after he was convicted. However, no such action was taken as the IAC could not form a reasonable belief that Dr Arulanandarajah posed a serious risk to persons.
One could speculate that no action was taken as Dr Arulanandarajah moved to an area in need and put in place parameters to ensure such conduct did not reoccur.
Submissions regarding classification of conduct and sanction
The Board adopted the approach that the professional misconduct amounted to conduct within the definition of both subparagraph (a) and subparagraph (c) of definition in the National Law. These include:
- Unprofessional conduct by the practitioner that amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and
- Conduct of the practitioner, whether occurring in connection with the practice of the health practitioner’s profession or not that is inconsistent with the practitioner being a fit and proper person to hold registration in the profession.
As an alternative, the Board submitted that the conduct amounted to unprofessional conduct within the meaning of paragraph (c) of the definition within the National Law.
Dr Arulanandarajah did not accept that his conduct amounted to professional misconduct within the meaning of the term. Dr Arulanandarajah argued that the conduct was personal conduct and not professional conduct and additionally, it was necessary to consider his whole history and character and in so doing, neither criteria was met.
The Board submitted that Dr Arulanandarajah’s registration should be cancelled on the basis that he was not a fit and proper person to be registered and he should not be allowed to apply for re-registration for three years. Alternatively, his registration should be suspended and he should be reprimanded.
Dr Arulanandarajah submitted that a reprimand only was appropriate.
Characteristics of the conduct in this case
The Board emphasised (amongst other things) that the assaults involved a serious criminal offence, The repeated assault on a vulnerable person, showed disregard for consent and personal autonomy, (both important values in medical profession) and was inconsistent with the expectation of the Code of Conduct.
Dr Arulanandarajah emphasised that the acts had nothing to do with, nor arose from any patient connection, did not occur in a public setting, was an isolated act amongst an otherwise unblemished conduct record and that the immediate action committee had determined not to suspend him on two occasions even after it became aware of the convictions.
The Tribunal determined that it, as did the IAC, needed to consider whether Dr Arulanandarajah posed a risk to persons such as it was necessary to take immediate action to protect public safety. Indeed, the Tribunal had the benefit of evidence of those matters covering the additional period of more than three years since the IAC decision in August 2017.
Dr Arulanandarajah drew the Tribunal’s attention to the Magistrate’s comment that he was better off serving the community as a doctor than removing graffiti from the railway station. The Tribunal accepted that these remarks are relevant to the extent that they shed some light on the nature of the conduct but not in so far as they might express any opinion on what professional disciplinary action might be appropriate.
The Tribunal determined that the conduct was inconsistent with Dr Arulanandarajah being a fit and proper person to hold registration at the time it occurred. The conduct compromised sexual assaults of a woman who had assumed she would be safe in his house. The seriousness of the conduct is reflected in the conviction imposed. To violate the victim’s personal autonomy in the way Dr Arulanandarajah did was a breach of trust, unacceptably disrespectful to her and inconsistent with the qualities expected of a doctor.
The Tribunal concluded that the conduct cannot be divorced from professional conduct. Additionally, there was some connection with his professional work in that the victim was a nurse and they both worked for the same employer.
The relevance of the personal conduct in this case to professional standing is underlined by its inconsistency with the notion of trustworthiness in the Board’s Code of Conduct, and with the expectations in the AMA Code of Ethics.
The Tribunal was satisfied that Dr Arulanandarajah’s conduct constituted professional misconduct within the meaning of (c) of the definition of that term. It was inconsistent with being a fit and proper person to be registered.
Deterrence
The Tribunal rejected the submission by Dr Arulanandarajah that there was no role for a general deterrence as members of the profession do not need to be sent a message that they should not perpetrate sexual assaults as they already know this.
The Tribunal concluded that general deterrence does have a legitimate role to play in disciplinary proceedings when criminal charges have been proved and a sentence imposed. Disciplinary proceedings have their own separate role and purpose to protect the public and the reputation of the profession.
Notwithstanding this, the Tribunal noted that it needed to exercise care to avoid double punishment.
Sanction
The Tribunal looked at Dr Arulanandarajah’s circumstances in determining whether he was a risk to patients in the professional setting. This included a valuation of the material before the Magistrate, and character references and treating practitioner reports. As a result of this material, the Tribunal concluded that there was no suggestion that Dr Arulanandarajah presented as a risk to patients in a professional setting.
The Tribunal considered Dr Arulanandarajah’s rehabilitation (both in relation to alcohol and mental health issues), that he worked in Kalgoorie, is in high demand, plays a mentoring role and is the only doctor in the area who supervises medical students.
The Tribunal also took into account the positive references provided in support of Dr Arulanandarajah together with the contacts and reinforcement as to the journey of rehabilitation since the assault in 2015 as well as the genuineness of his remorse. The Tribunal noted that these describe the valuable contribution he made through his practice and the wider community and professional work.
The Tribunal noted that cancellation of registration sends a clear message regarding unsuitability to practice. Suspension however, may be thought to indicate confidence in the doctors future ability to practice once the period of suspension is served.
Accordingly, the Tribunal determined that a suspension was appropriate in the circumstances and suspended Dr Arulanandarajah’s registration for a period of three months.
Implications
The decision of the Tribunal reinforces the fact that conduct occurring in a social situation outside of the work place, can amount to professional misconduct and can have serious consequences on a practitioner’s ability to practice.
The sanction imposed reflects the balancing of the serious nature of the conduct against the benefit that Dr Arulanandarajah’s practice had brought a remote community and his steps to rehabilitate himself.
As such, there is value in practitioners in such a situation mitigating their conduct as soon as possible by assisting in the community (particularly in a remote areas of Australia) and undergoing treatment to ensure that the conduct will not be repeated.
This article was written by Katharine Philip, Partner and Audrey Lacey, Special Counsel.
