Law and Ethics in Healthcare: Medical Board of Australia versus Topchian - Assignment Example

Law and Ethics in Healthcare: Medical Board of Australia v Topchian (Occupational and Business Regulation) [2013] VCAT 86 Name Institution Name Date Question1 What allegations did the Tribunal consider in this case? The Victorian Civil and Administrative Tribunal (VCAT) is tasked with reviewing allegations from different stakeholders including the health professionals and clients, and determine appropriate mitigation or disciplinary measure (VCAT, 2013). In the case of Dr. Topchian, the allegations were premised on the sexual relationships and the negotiations for payments and other factors association with the unprofessional behaviours. The healthcare industry requires upholding of high standards of ethical and moral requirements. These standards defines professional behaviors and approaches in completing different roles and responsibilities. Dr. David Topchian, a cosmetic surgeon, admitted having engaged with a 21-year-old female patient in a sexual relationship. Dr. Topchian had engaged in sexual acts during the provision of cosmetic surgery services before, during and after the sexual relationship. The patient asked Dr. Topchian for some financial assistances, and these assistances had threats attached (VCAT, 2013). The patient that Dr. Topchian treated between April 2007 and January 2010 threatened that if Dr. Topchian did not provide the monetary compensation, she would report the relationship to Dr. Topchian’s wife, the health professional board and other stakeholders. Due to these threats, Dr. Topchian reported the matter to the Australian Health Practitioner Regulations Agency. Based on the analysis, it is evident that Dr. Topchian had broken numerous legal and ethical requirements has contained in numerous legal acts and the oath of a health practitioner (VCAT, 2013; Lo, 2012). For example, health regulation requires patients and health practitioners to maintain boundaries, which Dr. Topchian crossed (Mansfield et al., 2011; VCAT, 2013). In addition, the health practitioners are required to champion ethical requirements such as not lying and concealing mistakes. Dr. Topchian did not adhere to the legal and ethical requirements, and it was the role of VCAT to determine the allegations (VCAT, 2013). Moreover, aspects of unprofessionalism and professional misconduct are raised. What were the Tribunal’s findings with respect to the allegations? The Tribunal found professional misconduct based on Health Professions Registration Act 2005 against Dr. Topchian because of the sexual relationship with a 21-year patient who was seeking for cosmetic surgery services. The Health Professions Registration Act 2005 contains guidelines and principles of accomplishing health related activities. However, Dr. Topchian did not follow or adhere with some of the directives in this legislation. The second finding is of unprofessional conduct premised on Health Practitioner Regulation National Law (Victoria) Act 2009 because Dr. Topchian employed different approaches and systematic approach to cover up the relationship (VLPD, 2009). The Tribunal stated “His conduct was of a far lesser standard than that expected of him. Following the risk of disclosure of the sexual relationship arising, Dr. Topchian carefully and systematically attempted to prevent anyone discovering his misconduct” (VCAT, 2013). Dr. Topchian reported the matter after the patient threatened to expose their relationship. Dr. Topchian had initially engaged the services of lawyers, and the doctor proposed a settlement of $20,000 even though the patient wanted a compensation of $50,000 (VCAT, 2013). Other conditions attached to the agreement included deleting material that was related to their relationship in her laptop computer and her mobile phone and also to sign documentation prohibiting her from disclosing or taking action about their sexual relationship. The Tribunal acknowledged the importance of self-reporting and points out the ineffectiveness of the entire consultation before the negotiations broke down. The Tribunal categorically states that “he only did so because he was about to be found out” (VCAT, 2013). According to the VCAT Tribunal, if the negotiations were successful, it meant that Dr. Topchian would not have reported the matter. Hence, much credit was not given to the decision to self-report because the self-reporting would not have played an important role since the patient would have taken the step of reporting. In making the decision, the Tribunal made an analogy between the role of a cosmetic surgery and a psychiatrist who sometimes has intimate access to the concerns of the patient: especially, when it comes to private information. The basis of Dr. Topchian allegations were the decision to conceal the sexual relationship and the decision to bribe the patient, which raises ethical concerns. The Tribunal categorically stated that “in one of the most sensitive fields in medical practice, akin to psychiatrists and psychologists. They alter peoples appearance to which self-worth is inextricably linked, perhaps particularly to the people who consult them” (VCAT, 2013). It indicates that Dr. Topchian did not uphold the requirements of professional conduct has stipulated in numerous legislations and other guiding principles such as ethical and legal obligations. Question 2 What did the Tribunal say about the requirement that health professionals must observe proper personal and sexual boundaries between themselves and their clients? The discussions and fundamentals associated with personal and sexual boundaries, the Tribunal premised the analysis on Health Practitioner Regulation National Law (Victoria) Act 2009 and the Health Professions Registration Act 2005 (sections 77 (1 and 2)) (VLPD, 2005). These legislative and Acts have clear guidelines and approaches on the requirements of health practitioners to adhere to the legal and ethical requirements. Without even considering these Acts, it is inappropriate for doctors and patients to engage in sexual relationships. The Tribunal stated “Medical practitioners are placed in a position of trust in the community and have available to them intimate knowledge of their patients’ physical and psychological wellbeing” (VCAT, 2013). It indicates the importance of trust from the community, which the health care professionals have to rely in dispensing services and products. The community holds in high-esteem the health profession and participating in sexual activities negates the significance and strength of trust. The doctors and health professionals should not be viewed as predators or even create a negative perception about the health professional. The Tribunal said that the community seeks medical assistance, and the assistance is not to be regarded as a potential sexual requirement or even the relationship between the patient, and the doctor should not be sexualized. However, Dr. Topchian contravened this requirement and participated in sexual relationship with the client. The health profession should not be brought into disrepute and even the equipment and facilities that forms the hospital setting should not be used to advance sexual or personal requirements, which contravenes the requirements of professionalism (Bismark et al., 2013). The Tribunal presents that “profession expects its members to refrain from using the consulting room as a means of establishing sexual relationships with patients” indicating clear distinctions between personal usage of resources and health based requirements (VCAT, 2013). The aspect of limitations of personal relationships extends to communication processes. According to Dr. Topchian, he shared personal information with the patient while the arrangements and other personal activities took place at the medical establishment and hotel facilities. Defining the communication boundaries between the patient and the doctor is also important since the communication time should be official in nature and limits on the communication process should be discussed (Green, Meagher & Millon, 2012). The obligations and roles of the patients and the health professionals are clear (Thistlethwaite & McKimm, 2015). The patients present their medical or health concerns, and it becomes the prerogative of the doctor to further the diagnosis requirements. Intimate access exists between the doctor and the patient in medication requirements, and this opportunity should not be abused (Angelos, 2007). The doctors are tasked with holding important information and doctors may utilise the information to their advantages in pursuing personal favours. The Tribunal hold doctors should champion confidentiality and privacy, stating “secrets they (doctors) may never tell another human being” (VCAT, 2013). Lack of maintenance of professional-patients boundaries may resulting in sharing patients secrets. Why is this requirement a necessary condition of the professional –client relationship? The client dignity should be respected, and it is the integral component in ethical principle and boundary problems (Kilner & Sheppard, 2010). The client’s choices and authentic goals ought to be respected. The preservation of the boundaries can be possible through the concept of autonomy in which separateness and independence in terms of self-determination attitude and self-directing requirements, which are core to treatment expectations should be encouraged. It also raises the fiduciary relationship namely the aspects of good faith or concept of trust, which must be championed. In the healthcare fraternity, the fiduciary partnership is based on loving care and sincerity without reserve (Towle et al., 2010). Other fundamentals associated with fiduciary include compassion, nonmaleficence, beneficence and altruism (Yellowlees & Nafiz, 2010). Due to the nature and requirements of professional-client relationship, the professional should not exploit this fiduciary rubric; hence, the importance of professional and client relationship boundaries. Defined professional and client boundaries create safety for the healthcare providers and the patients as well as for the society. The boundaries establish defined responsibilities and roles for the health care providers and also the definition of professional territory (Kilner & Sheppard, 2010). Through such processes, undermining the professional-client relationship is not possible. If these boundaries are not instituted effectively, ethical and legal conflicts may occur, which affects the dispensation of the healthcare requirements. The professional-client relationship is the foundation of healthcare practice, and it applies to all cultures and populations in professional settings (Pulvirenti, McMillan & Lawn, 2014). The relationship is based on professional intimacy, respect and trust and requires effectiveness in utilisation of authority (Davis et al., 2012). The professional-client relationship is based on client’s privacy, autonomy, dignity, and communication and actions between these boundaries should be kept in professionalism in nature. In such situations, the client is usually vulnerable since the healthcare professional has more power compared with the patient (Pearce et al., 2011). The power is associated with the skills, specialised knowledge, and access to information and influence, which illustrates the importance of power that may contribute to abuse of authority. Therefore, the healthcare professional should utilise the power appropriately, which illustrates the significance of keeping effective professional and client boundaries. An effective professional-client relationship without the aspects of violation in terms of coercion, chastising, disclosure, intimacy, dating, gifts, socialising, friendship, physical contact and favoritisms is crucial (Adams et al., 2012). These factors affect professional judgment since instances exist it which clear relationship boundaries does not exist. It means that appreciating the professional-client friendship is effective while making a professional judgment, which does not have defined professional boundaries. Hence, adhering to the requirements of professional judgment in absence of ethical and legal complications results in effective decision making. Question 3 What orders did the Tribunal make? The Tribunal was tasked with determining the appropriate sanction, particularly whether the registration should be suspended or cancelled, and if suspended for what period. A suspension is when a practitioner is prevented from practising for a given period. When a license is cancelled, the practitioner is required to re-register after a given period (VCAT, 2013). The Tribunal acknowledged the different circumstances in which each situation are applicable. The Tribunal in its judgment stated “Cancellation of registration sends a clear message of unsuitability for practice. Suspension may be thought to indicate confidence in the doctor’s future ability to practice once the period of suspension is served.” The Tribunal had “seriously considered cancellation” because of the nature of the accusations including the findings (VCAT, 2013). However, VCAT determined one-year suspension with a reprimand and mentoring for two years was appropriate disciplinary action. The Tribunal determined suspension was appropriate because the current case lacked ‘aggravating factors’, which would have contributed to a repeat of the offence. The representation of Dr. Topchian had proposed a three months suspension period, but the Tribunal rejected as too short. The Tribunal saw it as insufficient in warning practitioners that “it is utterly inappropriate to have any form of sexual relationship with a patient” (VCAT, 2013). The representative submitted that Dr. Topchian would suffer financial and income challenges if the Tribunal determined a longer suspension (VCAT, 2013). The Tribunal saw the significance of this assertion and determined that “the need for general deterrence arising from our decision outweighs it.” Compared to other cases why did the Tribunal find it sufficient to make those orders? Specialisation is an important component in the health professional fields, and the practitioners should be concerned with different boundaries based on their respective obligations and tasks (Frankish, Ryan & Harris, 2012). Professional boundaries are important in fields such as a psychiatrist, psychologists and cosmetic surgeries because of the levels of privacy/confidentiality raised and its relevant medical requirements. Therefore, the suspension and related disciplinary approaches were aimed at ensuring the patients and community have confidence with the practitioners (Kaser et al., 2010). The analogy highlighted in the sensitivity of the medical requirements is the manipulation the practitioner may employ in seeking favours from the patients including sexual favours. Hence, such specialties require maintenance of professional boundaries and the toughness of the sanctions are important in highlighting such requirements, which also illustrate the difference with other orders that the Tribunal had made on other health professional cases. Dr. Topchian had numerous favours considered on his side. The obvious aspect was the self-reporting requirement and also the remorse that he highlighted. Chances of reoffending decreased considerably because he displayed insights on consequences of his behaviour. The Tribunal categorically stated, “Appreciates the harm done to his profession’s reputation” (VCAT, 2013). Understanding the mistake is appropriate because corrective measure reduces the chances in which the mistake would reoccur. The cosmetic surgeon also played an integral role in the direction of the case. The cosmetic surgeon decided to report the incident and cooperated throughout the investigation and also sought therapy (psychological treatment) to understand the boundaries of practitioner-patient relationship (VCAT, 2013). The cosmetic surgeon even sought psychological assistance to ensure the problem does not occur. These were favorable strategies that Dr. Topchian employed in ensuring the Tribunal ruled to his benefit. The Tribal also saw the importance of self-reporting in addressing a problem. Numerous cases may be hidden through negations and unethical process and through self-reporting, the ethical situation and requirements of the health industry can be championed. Even though Dr. Topchian reported “only because he was about to be found out” does not negate the decision to correct the problem even if the cosmetic surgeon predicted penalization or disciplinary action. Hence, the suspension was aimed at encouraging the health professions to report ethical and legal shortcomings. Question 4 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? In the professional-patient relationship, trust is the integral component. The trust is based on the understanding and appreciation of the different stakeholders in the healthcare sector. It includes adhering to the procedures and processes defined by different legislations and Acts (Reamer, 2012). Adherence to the ethics code and following the numerous legislations are important in ensuring crossing the boundaries is prevented (Tasman et al. 2014). Therefore, adhering to the legal, ethical and moral guidelines are important in ensuring each of the different stakeholders especially the professionals adheres to the principles of boundaries and treat the patients accordingly. Effective communication is important in the interaction between the healthcare professions and the patients. The healthcare professionals should understand the importance and significance of effective communication in addressing the requirements of the patients and ensuring the role and responsibilities of the patient are understood (Gochman, 2013). Through effective communication, the health service manager should inform on the threats and emotional concerns associated with the treatment processes and the healthcare professionals should guide the patients appropriately. Effective communication also ensures the limits and responsibilities and other related variables such as ethics and moral obligations are communicated to the patient in instances of improper or prospective emotional relationship. Delegation of duties and defining different roles and responsibilities is important. Each professional within the healthcare industry should play their respective roles accordingly. In instances that a professional is unable to complete the tasks due to personal concerns, delegation can be employed in addressing the problem (Bhugra, Ruiz & Gupta, 2013). Delegation should not be seen in the perspective of allocating duties but also assigning to other professionals in times of conflict of interests. Engagement lines should be open among and between the different professionals enabling sharing and assigning duties based on the different operational circumstances. In addition to the delegation, effective reporting and conflict resolutions systems are integral in ensuring boundaries are maintained. Hence, collaboration and cooperation should be encouraged in provision of services and products. References Adams, R., Price, K., Tucker, G., Nguyen, A. M., & Wilson, D. (2012). The doctor and the patient—how is a clinical encounter perceived? Patient Education and Counseling, 86(1), 127-133. Angelos, P. (2007). Ethical issues in cancer patient care (Vol. 140). 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