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Sexual harassment may not just be a court case

General News: 18 March 2019

Once again the long standing nature of the effects of sexual harassment, which can be psychological, physical and/or have an impact on a career, have become evident with the recent publicity over the difficulties suffered by neurosurgeon Caroline Tan in obtaining a position at a hospital following her successful claim against a more senior colleague.

Stephen Curtain of Aitken Partners acted for Dr Tan, when as a third year neurosurgical Registrar undertaking training at Monash Medical Centre under neurosurgeon Chris Xenos, she alleged Dr Xenos sexually harassed her.  Dr Tan was awarded a record amount of damages at the time but the effects have lingered.

In February 2005, Dr Tan had attended Mr Xenos' consulting rooms after hours for tutoring and was sexually harassed by him. 

Dr Tan did not initially make a formal complaint because she was afraid of how her career may be impacted.  She was aware that it would be a trainee surgeon's word against that of a respected neurosurgeon, and that he would be involved in her next training assessment.

Dr Tan continued to be deeply troubled by the incident and eventually decided to confide in several specialists and colleagues in early 2006.  Some of her confidants encouraged her to inform the Head of Neurosurgery at Monash, Dr Danks, about the incident.  She informed Dr Danks in April 2005 to which he is said to have responded with words to the effect of "what do you expect when you dress the way that you do?€  She ultimately told Dr Danks not to take any action because she didn't want to be seen to be a trouble-maker.

Dr Tan made a written complaint to the hospital in February 2006.  HR at Monash Medical Centre conducted an investigation.  As far as is known, no disciplinary action against Mr Xenos ever followed. 

A Board of Neurosurgery meeting took place on 17 February 2006 shortly after Dr Tan had made her complaint about Mr Xenos by letters to Southern Health and Dr Weidman, then Chairman of the Board of Neurosurgery. The purpose of the meeting was to discuss Dr Tan's performance. The Board took into account some criticisms of various people during the meeting. Judge Harbison held that "it was apparent from Dr Weidman's evidence that in dealing with Tan, the Board ignored its own regulations for the assessment of trainees, and relied on a great deal of information which was not made available to her.Mr Weidman admitted that in assessing Dr Tan, "we [the Board] are breaking our own rules. It may not be legal, but we have to make sure inappropriate people do not proceed through training.€  Judge Harbison noted that "in an extraordinary admission, Dr Weidman agreed that none of these regulations [as listed in the judgment] had been followed in Dr Tan's case. All of her assessments for the years 2003 and 2004 had been satisfactory. There had been no suggestion of marginal or deficient work€¦ no evidence that she had been warned€¦and yet she had still been rated provisional for the year.€  

Judge Harbison of VCAT found Dr Tan's allegation of sexual harassment proven and Dr Xenos was ordered to pay her damages of $100,000.  She rejected Mr Xenos' claim that Dr Tan had fabricated the story either due to receiving the final assessment in February 2006 or because she realised she was in danger of failing. 

Judge Harbison was scathing of the Board's failure to take a "serious viewof Dr Tan's claims about a surgeon "in a position of power over her,who was "in a position of great influence as to her qualification and her future career.Her Honour found it "disappointing, that the Board never considered the claims to be sufficiently grave to warrant consideration of the need to reassess her capacity in the last assessment period.€

Judge Harbison was equally troubled that Mr Xenos had realised she was "vulnerablebecause her performance had been questioned at Adelaide Hospital, and that "her account of events would have no credibility, compared to his, at least in the eyes of their peers. Her Honour noted that Mr Xenos had "attempted to completely smear her characterand had called as witnesses "the most powerful men in her professional life - the Chairman of the Board of Neurosurgery and several other senior professors and doctors€¦€

This case indicates a prevailing culture that perpetuates harassment by someone in a significant position of power over another.  It is concerning that despite the seriousness of Dr Tan's complaint, she faced significant hurdles from colleagues, hospital management and even the Board of her profession, in having her complaint taken seriously, let alone having it dealt with appropriately.

It reminds us of the importance of taking complaints of whatever nature seriously and dealing with them appropriately and responsibly in accordance with robust policies and procedures.

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