Case summary | Blurred lines: Medical Board of Australia v Sutton [2020] VCAT 472

by | May 1, 2020 | Health Blog

A recent decision against a general practitioner in Victoria is a timely reminder of the benefits of actively participating in disciplinary hearings and of the need to separate treatment relationships from personal and professional relationships.

Dr Jonathan Sutton was reprimanded and disqualified for re-registering for 2 years after the Victorian Civil and Administrative Tribunal found him guilty of 5 counts of professional misconduct and 1 count of unprofessional conduct.

There were a number of allegations made against Dr Sutton in relation to care and treatment of a patient and colleague, Ms XY and her family member Ms AB.

In particular, it was alleged that Dr Sutton had:

  • transgressed the boundaries of the patient/practitioner relationship by engaging or attempting to engage in a personal and/or emotional and/or romantic relationship with Ms XY who as a colleague as well as a patient;
  • failed to refer Ms XY to another general practitioner when it became clear that he was developing feelings for her and could not objectively continue his treatment of her;
  • failed to refer Ms XY to other specialist health practitioners as appropriate and actively sought to dissuade her from seeing other practitioners already involved in her care;
  • advised Ms XY to take medications prescribed for Ms AB;
  • failed to ensure continuity of care by promptly transferring Ms XY’s medical records to another general practitioner at Ms XY’s request; and
  • failed to protect Ms AB’s privacy by providing her health information to another health practitioner in circumstances where the practitioner had not requested the information and the information was not necessary for the practitioner to treat Ms AB.

Dr Sutton did not engage in the proceedings before Tribunal despite being provided with opportunities to do so and his only input was to voluntarily surrender his registration without explanation.  As such the Tribunal found each of the allegations proven based on the unchallenged evidence led by the Board.

In determining the appropriate penalty, the Tribunal reflected on the difficulty of formulating a penalty in the absence of any submissions from the practitioner.

In particular, the Tribunal cited the decision in Honey v Medical Practitioners Board of Victoria [2007] VCAT 526

“Almost always, a practitioner will be given credit for participating in the proceedings.  And it will usually be to their advantage because it will enable the Tribunal to assess issues of insight, remorse and self-directed rehabilitation based on information the practitioner provides or the submissions they make.  There may also be mitigating circumstances such as ill-health or relevant circumstances which can be taken into account.”

The Tribunal found that Dr Sutton’s conduct was deliberate, self-serving, engaged in for Dr Sutton’s own self-gratification and to the detriment of a vulnerable patient.  His conduct occurred in circumstances where there was a clear power imbalance between him and Ms XY, who said that she felt obliged to consent to a formal doctor/patient relationship in order to continue her working relationship with Dr Sutton and her employment.

It was noted that whilst Dr Sutton was no longer registered at the time of the Tribunal proceedings, if he had been, the Tribunal found that his conduct would have warranted cancellation of his registration.

The decision in Sutton serves to highlight the advantages to be gained by a practitioner actively participating in disciplinary proceedings if they should find themselves before the Board or the Tribunal.  Investigations into a professional conduct can often be stressful but working with your medical indemnity provider and legal professionals can help to optimize a practitioner’s outcome.

Moreover, Sutton is a further example of the potential risks that come from mixing the professional with the personal.  For practitioners that straddle the roles of business owner and clinician, it is always prudent to ensure that you do not also have a treatment relationship with your employees.

The full decision in Medical Board of Australia v Sutton [2020] VCAT 472 can be read here.

Prue Campbell

Prue Campbell