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LAW695 Law And Ethics Of Health Care

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LAW695 Law And Ethics Of Health Care Question: Read Medical Board of Australia v Topchian (Occupational and Business Regulation) [2013] VCAT 86 Answer the following questions: What allegations did the Tribunal consider in this case? What were the Tribunal’s findings with respect to the allegations? Please refer to the relevant sections of the legislation when answering this question. What did the Tribunal say about the requirement that health professionals must observe proper personal and sexual boundaries between themselves and their clients? Why is this requirement a necessary condition of the professional client relationship? What orders did the Tribunal make? Compared to other cases why did the Tribunal find it sufficient to make those orders? 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? Answer: Introduction The Medical Board of Australia presented their case against Dr. David Topchian, one of their registered medical practitioners, to the Victorian Civil and Administrative Tribunal (VCAT). The hearing was held in Melbourne on the 10th and 11th of December 2012 before the Senior Member I. Proctor, Dr. B. Burge, and Dr. A Reddy. Following an order by the VCAT, the identity of the involved patient remains undisclosed and it is not to be made known to the public or published whatsoever. The main allegations by the Board against Dr. Topchian were unprofessional conduct and professional misconduct by the cosmetic surgeon which arose from a sexual relationship and the financial negotiations that followed thereafter so as to cover the relationship with a patient (Gabbard & Nadelson, 2015). The events that led to the above allegations are as discussed below. The Sexual Relationship Dr. Topchian had performed three breasts augmentations a labioplasty, and four lips fill on the patient to whom this case relates to between June 2007 and January 2010. The patient had previously researched on the advantages and disadvantages of the cosmetic breast surgery and had sent many emails to Dr. Topchian raising some issues from her extensive research. The doctor requested his wife who was also a medical practitioner to help him draft a mail to send to the patient so as to set boundaries regarding the appropriate time for her to contact him through the e-mails. Regardless of this, the patient persisted and kept on sending more e-mails which had now started to become personal. After the first breast augmentation, the patient began to send nude pictures and the doctor in return made some favorable remarks. Though at some point the pictures were meant to show Dr. Topchian the results of his cosmetic surgery, they were also intended to develop a sexual relationship (Bloom, Fischer & Orme, 2012). Later on, in July 2009, he asked the patient out for dinner at a restaurant in Melbourne in an attempt to find out whether she wanted to start a sexual affair with him. They then began to send each other personal texts and emails and even Skyped at times. The sexual relationship was offset in August 2009 at a Melbourne Hotel during one evening just before he was to perform a breast augmentation and a lip fill. He then paid a flight for the patient in October 2009 to Brisbane where they stayed for more than a week in a hotel and went ahead to give her a laptop. Towards the end of October, a colleague advised him to end the relationship but he kept it going on through telephone and email contact. He referred the patient to a colleague of his to continue the treatment although, on two occasions, he performed a lip fill and reviewed the patient’s post-operative breast scarring. However, Dr. Topchian admits that he could have found another colleague to perform these procedures. The two seemed to have cut communication as 2010 went by (Fisher & Fahy, 2013). Therefore, the doctor engaged in gross misconduct as defined in the constitution paragraph (b) which gives a clear definition of professional misconduct. According to the Health Professional Registration Act of 2005, the action of the doctor to engage in a sexual relationship with his patient was against his practice as a surgeon. The Financial Negotiations The patient sent an email to Dr. Topchian in July 2010 saying that her car had been destroyed and that she had been undergoing some financial difficulties. She needed him to help her and she ended the email with a threat saying, “Think very carefully about how you respond,” (Civil & Tribunal, 2015). The doctor concluded that if he did not meet her demands she would reveal their sexual relationship and he immediately emailed her telling her that he would help. Afterward, he contacted a lawyer to help him get the patient to sign a contract agreeing not to reveal their relationship after she was paid through a bank cheque. In September 2010, the patient was demanding $50,000 while Dr. Topchian was only offering $20,000. She sent him an email setting ultimatums which insinuated that if he did not meet her demands she would forward the evidence of their relationship to the relevant people. Dr. Topchian then came clean to the Board and to his wife about the unprofessional relationship (Civil & Tribunal, 2015). The action of the doctor concerning financial constraints was equally unprofessional. Therefore, the behavior constituted gross misconduct as defined in the Health Practitioners National Law section 5. The Tribunal’s Findings The VCAT found that as per the allegations of the Board, Dr. Topchian had engaged in professional misconduct as defined by Section 3(1) paragraph (b) of the Health Professions Registration (HPR) Act by engaging in a sexual relationship with a patient he was treating in his cosmetic surgeon practice. It also found that Dr. Topchian had conducted himself in a manner that depicts unprofessional conduct when he engaged in financial negotiations with his lawyer proposing to pay the patient some amount of money upon her signing of a formal non-disclosure agreement of their sexual relationship. According to Section 77(2), the tribunal could have found the practitioner to have engaged in unprofessional conduct even though the Board had made an application that alleged professional misconduct. A finding that depicts professional misconduct entails a more crucial extent from the generally acceptable professional terms than a finding that depicts unprofessional conduct (Fulford, Dickenson & Murray, 2012) With the presented allegations by the Board, the tribunal had to determine whether or not Dr. Topchian had engaged in professional misconduct or unprofessional conduct. Under Section 77(1) and (2) of the Health Professions Registration Act 2005, the Act says that following a hearing after an application in regard to a health practitioner, the tribunal may come to a finding as to whether or not; First, the respondent who is the health practitioner, in this case, has been involved in professional misconduct or unprofessional conduct. Second, whether or not the respondent’s capability to practice as a health practitioner has been compromised. Third, whether or not the respondent’s performance has been satisfactory and lastly, whether or not the respondent is of good behavior. The HPR Act further defines professional misconduct in Section 3(b) as a character that to a considerable extent is the accepted level of professional behavior as noticed by other members of the same profession who are highly reputable and competent. Section 3(c) defines it as the behavior of a practitioner whether linked to the health practice or not, that if determined would justify a finding that the respondent is not of good conduct and is not fit to engage in the health practice(Beckman, Markakis, Suchman & Frankel, 2014). Section 196(1) of the HPR Act says that following the hearing by a responsible tribunal concerning a registered practitioner, the practitioner has no case to answer and no action can be taken against them unless: First, the medical practitioner has carried themselves in a manner that constitutes of unsatisfying professional performance. Second, that the practitioner has conducted them in a manner that depicts unprofessional conduct or professional misconduct. Third, that the medical practitioner has impairment. Lastly, that the health practitioner’s registration information was not properly obtained because either the practitioner or someone else presented to the National Board that registered the practitioner with information or documents that were either false or misleading. Section 5 of the National Law (the Health Practitioner Regulation National Law Act 2009) describes the unprofessional conduct of a respondent who is a registered health practitioner as a character that is of a lower acceptable level than that which is reasonably expected of the practitioner by the general public or his fellow peers (Emanuel, 2012). The Tribunal’s Requirements In relation to the sexual relations, the tribunal found it inappropriate for such a relationship to exist between a doctor and the patient. It required medical practitioners to refrain from such conduct because they have been entrusted by the community with the patient’s intimate awareness of their psychological and physical welfare and should not exploit this kind of trust placed on them by their patients. For instance, Dr. Topchian as a cosmetic surgeon had intimate access to the patient’s concerns by transforming the involved patient from a 21-year old woman who was working in a pet shop into a model for popular magazines (Hyman, 2013). The tribunal further required for the medical practitioners to create an avenue such that when patients go to them they will not be viewed as potential sexual partners and that their doctor-patient relationship will not be sexualized in any way. It expects the health practitioners not to use the consulting rooms as an avenue to develop sexual relationships with patients. The tribunal also found it concerning that none of Dr. Topchian colleagues in the profession intervened early enough on the basis that he was too comfortable allowing patients to directly email him.Disregarding this requirement would consequently bring the profession’s reputation down and the community’s trust in the profession would be greatly reduced (Delahunty &Tait, 2016). The Tribunal Orders As Compared To Other Cases The orders made by the tribunal were a reprimand, suspension for a period of one year and professional supervisions for two years. The mentorship would be by a person who did not practice cosmetic surgery and would address concerns such as violation of personal boundaries, effective communication with patients and thorough note taking. The tribunal’s intentions were that involving a mentor would serve as a continuous reminder to assist him to cement his reformed behavior in terms of his interactions with patients. In regard to the reprimand, the VCAT took note of Mark J’s remarks in Peeke v Medical Board of Victoria that a reprimand is a crucial form of condemnation and censure and it does not underestimate the adverse implications it has upon the occurrence of a loophole in professional standards for medical practitioners (Emanuel& Ezekiel, 2013). The VCAT did not consider cancellation of Dr. Topchian’s practice because they did not see any possible future repetition of such a sexual relationship with the doctor. He had already learned his lesson from this incidence and had taken significant steps to formalize his professional-patient relationships. In addition, the tribunal noted his co-operation with the Board by reporting himself, the psychological treatment he was undergoing and his sincere admissions of guilt during the hearing. However, this did not give him any considerable credit because, in the tribunal’s view, he only reported himself because he was about to be found out (Lane, 2016). This case is almost comparable to that of Honey v the Medical Board of Australia. In both cases, the health practitioners were in a certain position that granted them power over their patients (Nancarrow & Borthwick, 2014). Another similarity is that in Honey, the medical professional paid $100,000 to the patient on condition that she would keep the relationship a secret. Dr. Honey was a psychiatrist who had engaged in a personal and sexual relationship with one of his previous patients who was vulnerable at the time. The VCAT ordered for a suspension instead of cancellation because the professional standards could still be maintained and the public trust in the profession preserved by the suspension (Marsden, Rowley & Tobin, 2013).The tribunal considered whether Dr. Honey would make a repeat of such conduct and judged that the public would no longer be at any risk from him. However, Dr. Honey received a longer suspension period of 18 months, unlike Dr. Topchian’s 3 months. This can be attributed to the fact that Dr. Honey had attempted to evade the Board’s disciplinary procedure and his relationship had gone on for a longer period of time. Additionally, in both cases, the respondents had disregarded their patients’ medical needs at some point. Dr. Honey had engaged in a sexual relationship with the patient when she was vulnerable. In the case of Dr. Topchian, he had overlooked the likelihood of his patient suffering heartbreak and experiencing feelings of rejection once he had terminated the relationship (Heyes, 2012). The patient had experienced psychological problems and this could be attributed to the fact that the person who had physically transformed her body had abruptly ended their short relationship. Prior to the cosmetic surgery, she had made reports to anesthetists that she was on antidepressants (Martin, G. P., Currie & Finn, 2012). This case cannot, however, be compared to that of the Health Care Complaints Commission v Dr. Small where there was neither cancellation nor suspension but instead, other sanctions were imposed. Another case that it cannot be compared to is that of the Medical Board of Australia v Poon where there were only three months of suspension coupled with other sanctions(Hohenstein, 2015). Although the three cases have remorseful doctors who were not likely to repeat the unprofessional conduct, were undergoing treatment and had gained some insight, there were some outstanding differences. Dr. Topchian’s patient was more vulnerable considering the surgical transformation she was undergoing at her doctor’s hands and also the significant difference in their ages. There was also a greater power imbalance between a cosmetic surgeon and his patient as compared to a general practitioner, a pediatrician or a dentist and a patient or the patient’s mother (Nash, 2014). The Small and Poon cases did not have the practitioners engaging in financial negotiations to avoid disclosure of the sexual relationship. These reasons gave the tribunal grounds for giving Dr. Topchian a suspension of one year as compared to Dr. Small case where there was no cancellation of practice nor suspension, and Dr. Poon’s case where only three months of suspension were ordered (Civil & Tribunal, 2015). Appropriate Processes And Procedures By Health Service Managers A health service manager ought to put into place professional guidelines, policies, processes and procedures to ensure that the health practitioners maintain professional conduct in their practice (Post, Puchalski & Larson, 2012).  To begin with, as a  health manager I would define the boundaries of appropriate relations and behavior for healthcare providers by declaring that, the practitioners must be committed to maintaining appropriate professional relations with patients. Certain personal relations must be avoided given the nature of the vulnerability and dependency of the patients (Niezen & Mathijssen, 2014). The medical practitioners must not under any circumstances exploit their current or former patients by taking sexual advantage of them. In addition, a health practitioner should never use their professional status to engage in a romantic or sexual relationship with the patients or the members of their families (Powell & Davies, 2012). Moreover, a health provider should always stay alerted so as to instantly recognize suggestions being made by a patient with an intention of developing a potential sexual relationship with the practitioner. Upon such awareness, the practitioner should set the record straight with the patient making it clear that they need to maintain a professional relationship or else there will be repercussions for engagement in any form of a personal relationship. If the patient persists, the medical practitioner should report the incident to the relevant authorities within the health service setting (Reeder, 2013).  By doing so, a professional demeanor will be maintained since corrective measures will be taken to sort out the issue. Besides this, as a health service provider, I would put into place disciplinary action for medical practitioners who engage themselves in sexual relationships with the patients. The consequences for such unprofessional conduct would result in consequences such as suspension, termination of work or reporting to the relevant authorities in the health profession (Tat, 2013). This policy would, in turn, put the medical practitioners’ behavior in check and ensure that they do not cross the professional boundaries when relating with patients. Further, I would set out directives requiring fellow colleagues to report any medical practitioners who engage in inappropriate relations with their patients. Failure to disclose ongoing violations of the set professional-patient boundaries would result in additional disciplinary action on the peers who were aware of the ongoing misconduct but chose to keep quiet about it in an attempt to protect their colleagues (Timmons & East, 2011).This would ensure that professional misconduct is reported and it would discourage the onset of such relationships in the first place because practitioners would be afraid of being reported to the profession’s authorities by their peers. Lastly, since maintaining direct contact via email and telephone calls between patients and doctors is essential and inevitable, I would come up with a strategy that ensures that this kind of communication remains professional. I would set out guidelines requiring that doctors should only give their office telephone numbers to patients so that they can only call during the doctor’s working hours (Wicks, 2014). This would prevent the development of sexual relations because the patients cannot access the doctors during odd hours that would suggest that a personal and unprofessional relationship has been developed. Determination The VCAT that was involved in the investigating of Dr. Topchian’s case made the following determination in relation to section 197 of the Constitution and section 77 of the HPR Act. The doctor’s registration as a doctor to be suspended for one year beginning from 1 March 2013 The VCAT directed that the Doctor is reprimanded against similar acts. The doctor was to consult a mentor on a monthly basis during the one year of suspension and two years after the suspension. The mentor will report in writing to the board after every 3 months depending on the agreement made by the board and the mentor. Finally, Dr. Topchian should incur the Mentor’s expense. In conclusion, it is clear that the determination of the sanctions imposed by the VCAT in such cases is not for the purpose of punishing the respondent. They are instead meant to protect the patients by deterring individuals who are not fit to practice in medical practice and ensuring that the appropriate professional standards are upheld. The medical practitioners should always ensure that they do not cross the professional boundaries when dealing with clients. This will help in instilling public confidence in the health sector. Health managers ought to put internal processes and procedures that will prevent such cases from happening and upon an occurrence of such an incident, they should report it to the proper authorities in the profession or take disciplinary actions.  References Beckman, H. B., Markakis, K. M., Suchman, A. L., & Frankel, R. M. (2014). The doctor-patient relationship and malpractice: lessons from plaintiff depositions. Archives of internal medicine, 154(12), 1365-1370. Bloom, M., Fischer, J., &Orme, J. G. (2012). Evaluating practice: Guidelines for the accountable professional. Civil, V., & Tribunal, A. (2015). Annual report 2006-2007. VCAT, Melbourne. Emanuel, E. J., & Emanuel, L. L. (2013). Four models of the physician-patient relationship. Jama, 267(16), 2221-2226. Emanuel, L. L. (2012). Ethics and the structures of healthcare. Cambridge Quarterly of Healthcare Ethics, 9(02), 151-168.alues: an introductory text with readings and case studies. Fisher, N., &Fahy, T. (2013). Sexual relationships between doctors and patients. Journal of the Royal Society of Medicine, 83(11), 681. Fulford, K. W. M., Dickenson, D. L., & Murray, T. H. (2012). Healthcare ethics and human values: an introductory text with readings and case studies. Gabbard, G. O.,&Kassaw, K. A., & Perez-Garcia, G. (2014). Professional boundaries in the era of the Internet. Academic Psychiatry, 35(3), 168-174. Gabbard, G. O., &Nadelson, C. (2015). Professional boundaries in the physician-patient relationship. Jama, 273(18), 1445-1449. Goodman-Delahunty, J., &Tait, D. (2016). Lay participation in legal decision making in Australia and New Zealand: jury trials and administrative tribunals. See Kaplan & Mart?n, 2006, 47-70. Heyes, C. J. (2012). Cosmetic surgery and the televisual makeover: A feminist reading. Feminist Media Studies, 7(1), 17-32. Hohenstein, J. (2015). Sexual relations between doctor and patient. The Lancet, 346(8975), 650. Hyman, D. A. (2013). Aesthetics and ethics: the implications of cosmetic surgery. Perspectives in biology and medicine, 33(2), 190-202. Lane, K. (2016). The plasticity of professional boundaries: a case study of collaborative care in maternity services. Health sociology review, 15(4), 341-352. Marsden, M., Rowley, S., & Tobin, G. (2013). VCAT decisions. Planning News, 39(7), 16. Martin, G. P., Currie, G., & Finn, R. (2012). Reconfiguring or reproducing intra-professional boundaries? Specialist expertise, generalist knowledge and the ‘modernization’ of the medical workforce. Social science & medicine, 68(7), 1191-1198. Nancarrow, S. A., &Borthwick, A. M. (2014). Dynamic professional boundaries in the healthcare workforce. Sociology of health & illness, 27(7), 897-919. Nash, D. A. (2014). Ethics in dentistry: review and critique of Principles of Ethics and Code of Professional Conduct. Journal of the American Dental Association (1939), 109(4), 597-603. Niezen, M. G., &Mathijssen, J. J. (2014). Reframing professional boundaries in healthcare: A systematic review of facilitators and barriers to task reallocation from the domain of medicine to the nursing domain. Health Policy, 117(2), 151-169. Post, S. G., Puchalski, C. M., & Larson, D. B. (2012). Physicians and patient spirituality: professional boundaries, competency, and ethics. Annals of internal medicine, 132(7), 578-583. Powell, A. E., & Davies, H. T. (2012). The struggle to improve patient care in the face of professional boundaries. Social science & medicine, 75(5), 807-814. Reeder, L. G. (2013). The patient-client as a consumer: some observations on the changing professional-client relationship. Journal of Health and Social Behavior, 406-412. Tat, K. C. (2013). Full Legal Report in Victoria of Australia: The Medical Board of Australia v Dr. Topchian (E-Book Version Draft). Timmons, S., & East, L. (2011). Uniforms, status and professional boundaries in hospital. Sociology of health & illness, 33(7), 1035-1049. Wicks, D. (2014). Nurses and doctors at work: rethinking professional boundaries. Buckingham: Open University Press.

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