HCCC v Dr Graeme Harris - [2008] NSWMT 6

New South Wales

Medical Tribunal

CITATION: HCCC v Dr Graeme Harris [2008] NSWMT 6

TRIBUNAL: Medical Tribunal

PARTIES: Health Care Complaints Commission
Dr Graeme Harris

FILE NUMBER(S): 40005 of 2008

CORAM: Ainslie-Wallace, DCJ - Glover, Prof W - Jammal, Dr W - Houen, Ms J

CATCHWORDS: Sold restricted substances to patients and persons unknown for personal financial gain - Supply drugs without prescription - Engaged in improper, unethical conduct relating to the practice of medicine - Self-prescription - Respondent not of good character

LEGISLATION CITED: Medical Practice Act 1992
Poisons and Therapeutic Goods Act 1966

CASES CITED: NSW Bar Association v Cummins (2002) 52 NSWLR 279;
Bowen-James v Walton & Ors (unreported CA (NSW) 5.8.1991);
Briginshaw v Briginshaw (1938) 60 CLR 362;
Bannister v Walton (unreported CA (NSW) 30.4.1992);
exparteTziniolis: Re Medical Practitioners Act (1966) 67 SR (NSW) 448;
HCCC v Karalasingham [2007] NSWCA 267;
McBride v Walton (unreported CA (NSW) 15.7.1994;
Law Society of NSW v Foreman (1994) 34 NSWLR 408;
NSW Bar Association v Meakes [2006] NSWCA 340

DATES OF HEARING: 13th November 2008
19th December 2008

DATE OF JUDGMENT: 18 December 2008

LEGAL REPRESENTATIVES: K Eastman of counsel for the HCCC
No Appearance

ORDERS: 1 The respondent's name forthwith be removed from the Register of Medical Practitioners and he not apply for re-registration for a period of seven [7] years from the date of these orders; 2 Respondent to pay the applicant's costs of the application

JUDGMENT:

THE MEDICAL TRIBUNAL Thursday 18th December 2008

OF NEW SOUTH WALES

AT SYDNEY

No. 40020 of 2007

BETWEEN

Health Care Complaints Commission

Applicant

Dr Mark FAIRBROTHER

Respondent

Deputy Chair: Judge A M Ainslie-Wallace

Members: Dr Joanna Hely

Associate Professor Bruce Harris

Ms Helen Kiel

Orders and Reasons for Determination

Order:

Pursuant to Clause 6 of Schedule 2 to the Medical Practice Act 1992 the Tribunal has made a Non Publication Order in respect of the name of the patient referred to in the proceedings.

Pending further order, pursuant to Clause 6 of Schedule 2 to the Medical Practice Act 1992, the Tribunal has made a Non Publication Order in respect of the name of the respondent

Introduction

1. The HCCC (the 'applicant') bring two complaints in which it alleges that Dr Mark Fairbrother (the 'respondent') has been guilty of unsatisfactory professional conduct or professional misconduct in that he has:

"Demonstrated that the knowledge, skill or judgment possessed or care exercised by him in the practice of medicine is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience; and/or engaged in improper or unethical conduct relating to the practice of medicine; and/or contravened the Medical Practice Regulation 2003."

2. The particulars for each complaint are the same. The applicant alleges that the respondent:

2. Engaged in a sexual relationship with a current patient, Patient A from about August 2004 until January 2005.

3. Supplied drugs for recreational purposes to Patient A including marijuana, Endone, MS Contin and cocaine between August 2004 and December 2004.

4. Resided with Patient A at the practitioner's home at North Avoca in the period September to October 2004 and at Patient A's home at Lisarow between November 2004 and January 2005.

5. Paid Patient A the sum of $10,000 on 10 January 2005 as an inducement not to complain about the practitioner to the Health Care Complaints Commission.

6. Assaulted Patient A at a Melbourne hotel room in December 2004 by attempting to choke her and by hitting her with a shower door.

7. Advised Patient A in August 2004 to cease taking Zoloft the anti-depressant and prescribed and supplied her with Valium thereafter.

8. Used cocaine regularly in the period August to December 2004.

3 The respondent denied each particular.

Background

4 The respondent is a general practitioner who graduated MB BS from Sydney University in 1982 and was first registered as a medical practitioner in NSW on 3rd March 1982.

5 After serving terms as a Resident Medical Officer in various hospitals, the respondent commenced working as a general practitioner. He was admitted as a Fellow of the Royal Australian College of General Practitioners in 1990.

6 Relevantly, the respondent has held the position of Medical Director of the Wyoming Medical and Dental Centre in Wyoming on the Central Coast from December 2002 until the present. He works there full time as a general practitioner.

7 The Wyoming Medical and Dental Centre (the 'medical centre') is a large centre proving a number of medical services including x-ray and pathology collection. Fifteen general practitioners work there covering various shifts. The medical centre is open from early morning until late at night and operates 7 days per week.

8 There is no formal appointment system. Patients who attend queue for the first available doctor. If a patient wishes to see a particular doctor, he or she must wait until that doctor becomes available. A patient can wait up to 4 hours to be seen by a particular doctor.

9 Patient A (the patient) had been a patient of the medical centre from April 2003 as had her young son. According to the patient records, she had not consulted with the respondent until January 2004.

10 For many years the patient had suffered from Obsessive Compulsive Disorder ('OCD'). She had been under the care of a psychiatrist, Dr Sandra Smith. Dr Smith had prescribed Zoloft for the patient to control her feelings and fears.

11 The patient had been sufficiently well not to need to see Dr Smith for some time until 2004 when she had a recurrence of her condition and again sought assistance from Dr Smith. The patient returned again to Dr Smith's care in February 2005. In March 2005 she was involuntarily admitted to the Mandala Clinic on the Central Coast where she was treated for an apparent drug induced psychosis.

12 As a result of what the patient told Dr Smith during their consultations in 2005, Dr Smith made a complaint about the respondent's conduct and resulted in this complaint being brought.

Agreed facts

13 There was no dispute that the patient first consulted the respondent, as a doctor, on 3rd January 2004 after her son was bitten by a dog. The respondent treated her son. The patient returned to see the respondent on 9th January for her own treatment. The medical centre records show that the respondent saw the patient again on 9th February and on 14th March 2004. The respondent saw the patient's son on 3rd January, 29th January, 9th March and 14th March 2004.

14 There is also no dispute that from August 2004 until late December or early January 2005, the respondent and the patient were in a sexual relationship with each other. They attended social events together and spent extended periods in each other's houses.

15 The relationship ended in circumstances of considerable acrimony. In early March 2005 three separate fires were deliberately lit, damaging the patient's car and house. The patient believes that the fires had been started by the respondent. Police arrested and questioned the respondent. No charges were laid against him or anyone else resulting from the fires. The applicant did not allege that the respondent was responsible for the fires that damaged the patient's property.

Standard of Proof

16 In cases such as these, the Tribunal must be satisfied as to the matters complained of on the balance of probabilities. In approaching the proof of the complaints, the Tribunal applies the "Briginshaw" test. While this does not mean that some higher test than that applicable to other matters where proof is to be found on the balance of probabilities, the Tribunal is required to have regard to

"The seriousness of the allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been provided to the reasonable satisfaction of the Tribunal”[1].

17 In Rejfek v McElroy,[2] the High Court said:

"The "clarity" of the proof required, where so serious a matter as fraud is to be found, is an acknowledgement that the degree of satisfaction for which the civil standard of proof calls may vary according to the gravity of the fact to be proved."

18 In Director-General, Department of Community Services; re Sophie [2008] NSWCA 250, the court considered the balance of proof where the "Briginshaw test" applies and said at paragraph 68:

"As the High Court pointed out in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 at 171, statements to the effect that clear and cogent proof is necessary where a serious allegation is made are not directed to the standard of proof to be applied, but merely reflect the conventional perception that members of society do not ordinarily engage in serious misconduct and that, accordingly, a finding of such misconduct should not be made lightly."

19 The resolution of the complaints and the factual background to them depends to a large extent on an assessment of the credit of the respondent and the patient. There was little common ground between them.

20 The Tribunal has come to the view that the respondent's evidence is wholly unreliable and cannot be accepted except where it is supported by objective evidence. In the view of the Tribunal, the respondent maintained denials in the face of clear, undeniable, objective facts. He insinuated fraud on the part of the patient and on the part of unknown people rather than concede an obvious fact.

21 The Tribunal is starkly aware of the gravity of such a finding and proposes to illustrate the finding with some examples from the respondent's evidence.

The wedding

22 The patient said that shortly after she and the respondent commenced their sexual relationship in August 2004 she and her son moved into the respondent's house, virtually living there. One night early in August the respondent proposed marriage to her and later bought her an engagement ring. A wedding photographer was retained and the patient said that she and the respondent met the photographer and spent time discussing the type of photographs and the places where photographs would be taken. The wedding was planned for 4th December 2004. A local hotel was approached as a venue for the wedding and sample menus provided to the couple. The patient and the respondent attended the house of a patient of the respondent who is a wedding celebrant and they discussed a wedding at which this patient, Mr Anthony Thorrington would officiate. The patient said that in October 2004 she and the respondent came to Sydney where she ordered a wedding dress and received advice about where to buy appropriate shoes and make up. On the same day they attended the Registry of Births, Deaths and Marriages and ordered birth certificates. Ultimately the wedding was called off.

23 In his statement of evidence [3] the respondent said: "On quite a few occasions (the patient) raised the question of getting married. I did not agree to get married". [4] He later added: [5] "I deny that our relationship ever progressed to the stage where we planned to be married. I never bought (the patient) an engagement ring and never planned to be married on 4 December 2004. We did have conversations in which the subject of getting engaged and getting married was discussed. However, we never reached any agreement about this. These discussions were always initiated by (the patient)". The respondent denied that the wedding celebrant was arranged and that he had any part in making arrangements with the hotel for a reception. The respondent conceded that he bought the patient a dress but said that this was for a medical conference that she was going to attend with him. He denied buying her an engagement ring.

24 The respondent said that none of the patient's evidence about the wedding was true.

25 The respondent was asked about his credit cards. He made no mention of having an American Express card nor did he produce any American Express card statements in compliance with a Notice to Produce. Later, when statements for the respondent's American Express card were produced, he said that he had forgotten when asked that he had one. [6]

26 One of the American Express card statements showed that in September 2004, the respondent had made a purchase of an item for $5,000 from a local jeweller.

27 The respondent said at first that he did not recall making any purchase from a jeweller in 2004. When shown the card statement that indicated that he had purchased something from the jeweller, he said that it "may" have been a watch for himself. He could not recall how much the watch cost him nor was he able to produce any proof of purchase of the watch.

28 The respondent denied that he attended the registry of Births, Deaths and Marriages with the patient to order birth certificates. Information from the registry was that a birth certificate can only be ordered by the person to whom the certificate relates. The records show that birth certificates for the respondent and the patient were ordered on 15th October 2004 and that payment for both certificates was made by the respondent using eftpos. The respondent's bank statements clearly show the debit to his account of the amount and show that the payment was in favour of the registry. The respondent said that it was his habit to check statements when they arrived and the card statement on which this charge appears has marks made against various entries on the page, presumably as part of the respondent's checking of the charges made.

29 The respondent maintained his denial of attending the registry and insinuated that the patient, knowing his PIN for the bank account, might used it to pay for the certificates without him knowing. When it was suggested to him that the only way a birth certificate could be ordered was by the person to whom it related, the respondent said: "Or somebody purporting to be me" [7] although when pressed, he immediately resiled from this suggestion.

30 The photographer gave evidence that she met both the patient and the respondent to discuss the wedding photographs. Mr Thorrington, the wedding celebrant, significantly supported the patient's account of their visit to him, including him giving her information about weddings. Although Mr Thorrington said that he did not recall being booked to conduct their wedding and said his "impression" was that the patient was interested in perhaps becoming a wedding celebrant rather than in being married, the Tribunal is satisfied that his evidence lends the patient's account significant support. The patient's mother and father gave persuasive evidence about the parties' engagement and the purchase of a gift that was given to both the patient and the respondent at dinner at his house.

31 During cross-examination on this issue, the respondent said that he could not have agreed to marry the patient when his own divorce had not "come through". Further examination revealed that he had instigated dissolution proceedings earlier that year, a decree nisi had been pronounced on 19th October 2004 and that decree became absolute on 20th November 2004.

32 The respondent's evidence in regard to the proposed wedding was but one example of a significant number of times in which it appeared to the Tribunal that he gave false evidence.

33 In the light of what the Tribunal considers to be overwhelming evidence of the fact of the engagement and wedding arrangements, the respondent continued to deny the fact.

Blood tests of November 2004

34 On about 3rd November 2004, the patient developed a severe infection of genital warts. She was generally unwell at this time and said that she had lost significant amounts of weight. The respondent said that the patient told him of the outbreak and he examined her at his home. He said that it was a very severe outbreak. He arranged for her to see a gynaecologist, wrote a letter of referral to the specialist and paid for her visit. The respondent faxed a copy of the patient's most recent pap smear result to the gynaecologist to accompany the referral. The referral letter is dated 3rd November. On 5th November the patient said that she and the respondent attended the medical centre where he took blood from her, submitted it to pathology for testing and arranged to obtain the results later that day. The medical records show that tests were done on that day and the results were delivered to the respondent on that same day.

35 The respondent denied that he had arranged for those tests.

36 The respondent said that he had no idea who ordered the tests. He said that the test results would have been delivered to his computer "probably" two days after the tests were conducted. In fact the patient records show that the results were delivered to the respondent's computer inbox on the same day as the blood was taken, 5th November 2004. The respondent said that when he realised that tests had been ordered in his name, he asked the patient whether she had tests done and said the patient told him that she had gone to pathology and blood had been taken. He said that perhaps she had gone to pathology and told them that he wanted the tests done [8] and that this might explain how his name came to be on the form.

37 He was not able to explain how if pathology accepted the patient's assertion that a doctor wanted blood tests conducted, the person taking the blood would have been able to nominate the particular tests to be done on the blood taken. He said that perhaps the pathology collector simply requested routine tests that the medical centre often ordered.

38 The pathology request form submitted with the vials of blood [9] specified the tests to be conducted on the blood and included a handwritten request for a thyroid test. The requesting doctor is recorded as the respondent and a signature similar to that of the respondent appears in the space nominated for the requesting doctor's signature and date. In the box marked "lab use only" the word "Mark" appears as do the numbers 5/11 and 11/45, presumably the date and time of the request. The respondent denied that it was his signature on the pathology request form. He said that another doctor could have logged into his own computer and manually changed the requesting doctor's name on the pathology form to that of the respondent to indicate that it was the respondent who had ordered the tests and then signed the form using the respondent's signature. He could give no explanation as to why another doctor would do this.

39 Later in his evidence he said that he asked the patient who had taken the blood but she declined to tell him and he said that the next day he went to pathology and asked the person in charge of pathology how the blood tests came to be ordered in his name. She told the respondent that she would look into it but "nothing was found basically". [10]

40 The respondent agreed that at this time, the patient was very thin and he was concerned about her physical health. He agreed that he would have ordered a thyroid test for her had he been ordering tests, yet he denied that he had arranged for her blood to be taken and tested.

41 The flavour of respondent's evidence in relation to this event, and indeed much of his evidence, was that he was simply making up his answers to respond to the cross-examination as it unfolded. The situation he attempted to portray that a patient of the medical centre could go to pathology and ask for blood tests to be conducted, that a person in that department would take the blood and determine what tests to order including thyroid testing, nominate the respondent as the requesting doctor and forge his signature on the pathology request form beggars the imagination. It is not credible that, had this sequence of events occurred, the respondent would not have pressed for information about this apparent anomaly in the system for obtaining blood tests.

42 The respondent agreed that he discussed the test results with the patient but made no note on her records of that discussion. He said because "it (the discussion) was done at home and I hadn't ordered the blood tests. I had no idea who ordered the blood tests. But I didn't feel it was necessary to withhold the results of the blood tests from her." [11]

Telephone calls in early 2004

43 The respondent said that he had met and had a sexual relationship with the patient in September 2003 and it continued until late November or early December 2003.

44 He said that when he first saw her as a patient in January 2004, in light of his earlier sexual relationship with her, he formed the view that it was not appropriate to enter into a doctor patient relationship with her. He told the patient this on 14th March and said that he told her that would not continue to act as her general practitioner. In his statement [12] the respondent said that he told the patient: "we have had a relationship before and I don't think you should keep coming back to see me. You should see someone else." He said: " I did not see (the patient) or her son as patients thereafter. At this time I never thought we would get together again."

45 Notwithstanding this conversation, the respondent said that the patient had persisted in trying to make appointments with him notwithstanding that he had told her that it was not appropriate. The medical centre has a switchboard and calls for doctors have to come through the switch. He agreed that from the duration of some of those calls, it appeared as though the patient's call had been put through to him. He said that he instructed the switch board that the patient was not to be booked in to see him. He said that he had to call her "two or three times" [13] to convince her that he would not act as her general practitioner.

46 He said that after he decided to end the doctor/patient relationship in March he would have not answered a call from the patient had she called his mobile phone.

47 Telephone call records show considerable contact between the respondent and the patient after the consultation of 14th March. The calls from the patient are to the respondent's mobile phone numbers. On 24th March the patient called the respondent three times and he called her three times later that evening when the calls were diverted to her voicemail.

48 The respondent was asked whether he had long conversations with the patient in this period when he was trying to get her to stop coming to the medical centre to seem him professionally. He said: [14] "I don't think it was ever a long conversation because she'd generally hang up."

49 The respondent was then taken to the records for his mobile phone that show that on the 25th March he rang the patient at about 7.52 pm and had a conversation that lasted about 18 minutes. He said that this conversation must have been about a consultation. He agreed that the last time he saw the patient before this was on the 14th March. He could not recall what was discussed on the 25th March nor how it related to the consultation on the 14th March. [15]

50 The clear impression from this evidence is that the respondent was again simply making up evidence to suit the ebb and flow of the cross-examination.

51 The respondent said the same about a conversation that he had with the patient on the 12th February in which he called her at about 11.15pm and spoke for about 1 hour. He said this was not a social call but must have been about the consultation on 9th February. He could not recall what they spoke about nor why it was necessary for him to ring the patient three times, the first call for an hour and then immediately afterwards, twice later for shorter durations. The whole conversation extended past midnight. He said that it was not uncommon for him to return a patient's calls late at night when he finished work. He did not recall that the patient had rung him during the day. [16]

52 The respondent's evidence was riddled with inconsistencies and it seemed to the Tribunal that he could not recall the evidence that he had given some short time before. For example he said that he had given the patient his mobile telephone number in 2003 when they had a sexual relationship. [17] Later when he was being asked questions about the asserted relationship in 2003 he said [18] that he had not given the patient his mobile phone number but said that they made arrangements for the next meeting at the end of the previous meeting.

53 Such were the inherent improbabilities, the inconsistencies and the apparent untruths in the respondent's evidence, that the Tribunal is unable to accept him on any point other than where he is directly supported by objective evidence.

54 It is to be understood that even setting the respondent's evidence to one side, it remains for the applicant to establish the complaints and the particulars to the relevant standard.

55 It is apt, too, to note that in not accepting the respondent's evidence, the Tribunal does not necessarily thus accept without question the account of the patient. The relationship took a toll on her. In her own words at the end of the relationship she was: "angry about the relationship and physically and emotionally exhausted". [19] Both her physical and psychiatric health had diminished and in March 2005 she was hospitalised with what was believed to be a drug-induced psychosis.

56 There was considerable acrimony between the patient and the respondent. She accused him of setting fire to her house and car and as a result he was arrested. He told police that she was delusional and suggested that she might have set the fire in her house herself. The respondent transferred $10,000 into her bank account, immediately attempted to have the transaction reversed, claiming it was an error and when that was unsuccessful sued her for the return of the money.

57 While bitterness and acrimony do not dictate that a person's evidence will necessarily be untruthful, it may colour perception. The Tribunal has borne this in mind when considering the patient's evidence.

58 There were parts of the patient's evidence about which she appeared to be less certain than others and parts where her account of events varied between her evidence to the Tribunal and her statements. She seemed keen at times to add unresponsive information to her answers to the discredit of the respondent. The Tribunal has approached her evidence with some caution. However, in a number of instances, her evidence is supported by objective evidence.

Relationship between the respondent and the patient

59 The respondent maintained that he had met the patient at the Key Largo nightclub at the Crowne Plaza hotel in Terrigal in September 2003. He said that she came up to him and introduced herself. They spent the evening at the nightclub and the patient returned with him to his house that night and they had sex. The respondent said that this was the first of four meetings [20] (although in his written statement of evidence he said that they met approximately 5 times and in his response to the HCCC complaint, said that they had met 6 times). In any event, the respondent's evidence to the Tribunal was that there were 4 meetings, once at the night club, on another occasion at the beer garden in a local hotel and on two occasions she came to his house for the evening. On each occasion they had sex. The respondent said that the arrangements for the next meeting were made at the end of the previous meeting.

60 Although he was not sure, the respondent said that the relationship petered out in early December [21] or late November and they stopped seeing each other.

61 When the patient came to the medical centre in January 2004 with her son, the respondent said that he recognised her but said nothing to her to indicate that they had this previous relationship because he said she was upset for her son and the consultation was confined to medical matters. It was not until March 2004 that he referred to the earlier relationship as a reason to stop treating the patient. Although he said nothing explicit to her before then, the respondent believed that the patient too recognised him from the earlier relationship.

62 Karen Gellatly she returned to Australia from living in Scotland on 19th November 2003 and said that she met the patient, who was introduced to her by the respondent, at the Key Largo nightclub three to four weeks after returning home. Ms Gellatly said that she had been offered a job at the medical centre that was to start on 22nd December 2003 and this meeting took place before that time. She said that she met the patient twice that year before the 22nd December, each time at the Key Largo nightclub. At the first meeting she said that she saw the respondent and the patient dancing together and kissing on the dance floor.

63 Ms Gellatly could not remember the year that she met the patient but for her reliance on her return from Scotland to fix the date. Although she said that the first meeting with the patient was three to four weeks after her return to Australia, she later said that it could not be correct if there were two meetings with the patient in that period. Ms Gellatly did not see the patient again until she saw her with the respondent at the medical centre after August 2004. She said that she found out who the patient was the next day when she asked reception staff.

64 Ms Gellatly was confident that she had in fact met the patient in late 2003. However, it is clear from the whole of the evidence that her confidence is based on her being able to fix the date by reference to her return to Australia. Without that, she said she could not remember the year. Since that time she had been to many Christmas parties at the nightclub and in the year she returned she went to many Christmas parties. She would not concede the possibility of mistake. The Tribunal is not as confident that Ms Gellatly did meet the patient on the respondent's introduction in late 2003.

65 Tammy Miles gave evidence that she was at the nightclub when the respondent met the patient. Ms Miles is a friend of the respondent and, during the hearing up to the time she gave evidence, was in daily phone contact with the respondent. In the Tribunal's view she was not an objective witness.

66 She said that the patient introduced herself to her and Ms Gellatly at the nightclub. In Ms Miles' opinion the patient asked "unusual questions about the respondent" such as whether he was married and what he did for a living. She said that she saw the patient dancing "seductively" with the respondent and said that they left together. She said "I was somewhat disapproving of where things appeared to be headed." She did not elaborate on this comment although it is clear to the Tribunal that Ms Miles was then and remains disapproving of the patient. Ms Gelately did not support Ms Miles' evidence about the nature of the introduction nor that the patient asked "unusual" questions about the respondent.

67 The Tribunal has reason to doubt the accuracy of Ms Miles account. She said that on this occasion she already knew Ms Gellatly, having met her through her work at the medical centre in the preceeding 12 months.

68 The confidence with which Ms Miles and Ms Gellatly asserted the date of the meeting is belied by the difficulty for any witness many years after the event, to cast his or her mind back to an event and fix a date.

69 The Tribunal does not accept the evidence of Ms Miles. It is clear to the Tribunal that Ms Miles is confusing the date of meeting the patient with another year because, clearly Ms Gellatly had not started work at the medical centre until December 2003.

70 The patient's evidence is that she first met the respondent in his rooms on the 3rd January 2004 when she consulted him about her son. She said that she had never been to the Key Largo nightclub and denied that she had been in a sexual relationship with the respondent in that time.

71 The Tribunal finds that the respondent and the patient did not have a sexual relationship of the type asserted by him in 2003 and is not satisfied that there was any meeting between the respondent and the patient in 2003. If the Tribunal is in error on this point, the evidence of Ms Gellatly amounts to no more than a meeting on one night.

72 The Tribunal is fortified in this finding by the evidence of the telephone records. The relationship between the respondent and the patient was characterised by telephone calls and text messages. There is no contact between the respondent and the patient in the time asserted by either the respondent or Ms Gellatly.

Complaints

73 Although there are two complaints made against the respondent, the particulars of each were identical and the difference between the complaints is whether the conduct amounts to unsatisfactory professional conduct or professional misconduct. Particulars 1, 2 and 4 concern the relationship between the respondent and the patient.

Particular 1

That the respondent engaged in an inappropriate personal relationship with Patient A between April and August 2004 in that he;

1.1 informed patient A during consultations that he was attracted to her

1.2 gave patient A his mobile phone number

1.3 hugged and kissed the patient at his surgery during consultations.

Particular 2

That the respondent engaged in a sexual relationship with a current patient between August 2004 and January 2005.

Particular 4

That the respondent resided with Patient A at the practitioner's home at North Avoca in the period September to October 2004 and at the patient's home at Lisarow between November 2004 and January 2005.

January 2004 to March 2004

74 There is no dispute that the patient consulted the respondent either on her own behalf or for her son on about 6 occasions between January and March 2004.

75 It was undisputed that the patient was extremely distressed when she first saw the respondent on 3rd January 2004 and wanted assurances from him that the child would not contract HIV as a result of the dog bite. The patient said that the respondent told her that if she remained concerned, she could bring the little boy back later for a blood test. The patient said that she told the respondent at this consultation that she suffered from OCD and that was why she was "obsessing" about her son contracting HIV. The respondent denied that she told him this at the consultation. The respondent had little recollection of the consultations. He said that when he commenced the sexual relationship with the patient in August 2004, he had "forgotten all about" the consultations with her. He had little recollection of them in the witness box. The Tribunal accepts that at this consultation the patient probably did explain her distress and need for assurance by reference to having OCD.

76 In any event, the patient returned to see the respondent on 9th January 2004. She told him that the dog bite had caused her to become increasingly anxious. At this time she told the respondent that she had previously seen a psychiatrist, Dr Sandra Smith who had prescribed Zoloft in the past to control her symptoms. The respondent gave her a referral to Dr Smith and prescribed Ducene (a benzodiazepine) to control her anxiety until she saw Dr Smith.

77 Dr Smith wrote to the respondent on 15th January after seeing the patient. [22] She informed the respondent that the dog bite had caused a recurrence of the patient's OCD. She also informed the respondent that the patient had increased her daily dose of Zoloft from 50mg to 125mg and Dr Smith recommended the dose be further increased to 200mg if necessary. She told the respondent that she had started a cognitive behaviour therapy program with the patient to treat this and hoped that the patient would return to her previous level of functioning.

78 The patient returned to see the respondent on 9th February. The respondent prescribed Zoloft for her and a flu vaccine that was purchased by the patient and administered by another doctor sometime later. [23] He recorded a diagnosis of "depression". The respondent could not recall on what basis he made that diagnosis nor what symptoms had been described to him to warrant the diagnosis.

79 The patient then returned to see the respondent on the 14th March. There were two consultations on this day, one for her son and another for herself. The respondent's notes are to the effect that she had tonsillitis and a chest infection. The respondent prescribed an antibiotic, Kalcid and Panadeine Forte for her.

80 The patient took her son to see the respondent on the 29th January, 9th March and 14th March 2004.

81 The patient alleges that it was during these consultations that she became attracted to the respondent and he to her. She said that she fell "head over heels" in love with the respondent.

82 The patient said that during one consultation he said to her "I don't know whether to hug or kiss you". She said that the respondent then attempted to kiss her and she turned her face so that he kissed her on the cheek.

83 In her statement, the patient said that this occurred at the end of the consultation in which the respondent referred her to Dr Smith. In her evidence she said that this occurred in later March or early April. The patient made this estimate of when the respondent kissed her by reference to when he first asked her on a date. While there was a degree of imprecision about when this event occurred, the Tribunal accepts the patient that it did happen at a consultation in the period between January and March 2004.

March to August 2004

84 The patient said that in April she told the respondent that it was not right for her to continue to be his patient and still see him. The respondent told her that he could continue to treat her and her son but would not charge Medicare. He gave her his mobile telephone numbers. In this context the patient said the respondent discussed the difficulties faced by one of his ex partners and colleagues, Dr Stuart Anderson who had been de-registered for having a sexual relationship with a patient. [24]

85 In her statement [25]the patient said:

"At the time I was flattered and head over hills (sic) in love that I thought everything would be fine. We started to court from then on."

86 The patient said that in April the respondent asked her out on a date, however, she was not able to arrange babysitting for her son.

87 At this time the patient believed that the respondent was still in a relationship with another woman and that was why there were difficulties in seeing each other. The woman denied that she was in a relationship with the respondent at this time, however, the Tribunal accepts that the patient believed that he was. This is supported by her evidence that when the respondent told her that the relationship with this woman had ended, the patient immediately invited the respondent to see her.

88 The patient said that instead of going out together on dates, she would visit the respondent in his surgery at the medical centre where they would talk about their lives and interests. The patient said that on some of those visits the respondent would attend to routine medical matters for her, for example the removal of a corn from her toe and he examined her spine in July 2004 after she told him that she had scoliosis. Although the patient and the respondent did not have a sexual relationship at this time, she said that they would hug and the respondent would sometimes kiss her on the cheek. She said that she visited the respondent at the surgery about 2 or 3 times a month in this period.

89 The respondent said that on the 14th March he decided that it was not appropriate to continue to treat the patient and told her that it was because they had had the earlier relationship in late 2003. According to the respondent, the patient said that she could see no reason why he could not treat her and that the relationship was over. Notwithstanding his clear statement to her, she continued to ring the medical centre to make appointments with him and he found it necessary to ring her to persuade her to stop.

90 The pattern and frequency of the telephone calls between the respondent and the patient from February and continuing through to April do not support his account but lend credibility to the patient's account of the relationship being one of "courtship". The Tribunal does not accept the respondent's suggestion that the long, late night call to the patient on 12th February was about the consultation of the 9th February nor that the call of 25th March of 18 minutes was an attempt to persuade her not to try to make appointments to see him.

91 The Tribunal accepts that from the consultations in January to March, a romantic relationship developed between the patient and the respondent. That relationship continued after the last recorded consultation in March 2004.

92 It was argued for the respondent that the telephone records support the respondent's account of there being an hiatus in the relationship between April and August 2004 because they show no calls between the patient and the respondent in this time. The patient agreed and said that she could only recall a couple of telephone calls during that time between them.

93 The patient's credibility is not without its difficulty as has already been discussed in these reasons. However, the Tribunal accepts her that the relationship with the respondent continued in the way she described after March 2004 and finds that in those visits the respondent offered her medical treatment as she described. The patient's account of being completely infatuated with the respondent from early 2004 was persuasive was maintained throughout all of her statements and is supportive of her account of continuing to see the respondent when circumstances allowed when she was at the surgery. The Tribunal also finds persuasive her evidence that in this time, she would only visit the respondent if she was not with her son which is consistent with her visiting the respondent for romantic reasons.

94 The Tribunal does not accept the respondent's evidence that he told the patient that the professional relationship was at an end in March and there was no relationship either professional or romantic between them in the period until August 2004.

August 2004 to January 2005

95 It was undisputed that from 1st August, the respondent and patient entered into a sexual relationship that very quickly progressed to them spending considerable amounts of time at each other's houses. The patient said that she and her son almost immediately moved into the respondent's house at North Avoca and remained there for three months. The respondent said that while they spent time with each other, they did not live together. The Tribunal is of the view that if there is any distinction to be made, it makes no material difference. The respondent and patient went out together, socialised with friends and entertained her parents. They visited his parents and had Christmas with his family in December 2004. To all intents and purposes, they were a couple.

96 The patient alleges that during this period, the respondent acted as her and her son's doctor.

97 On 7th August, the patient presented a prescription for Zoloft to a local chemist. It was written on a prescription pad of the respondent. The address printed on the top of the pad was for the Gateway Medical Centre where the respondent worked before moving to Wyoming. The patient said that she wrote her name and address on the top of the prescription and the respondent filled in the details of the medication, the instructions and dose and signed it.

98 The respondent denied that he completed the prescription. The Tribunal does not accept his denials. The Tribunal is also of the view that the signature on the prescription bears a close resemblance to a prescription admittedly signed by the respondent that was in evidence before the Tribunal. [26] The indications for dose and use on the prescription contain the usual medical shorthand. The Tribunal finds that the respondent did indeed write this prescription for the patient. This finding is supported by the respondent's evidence about how long he would have expected the patient's prescription for Zoloft to last and finds that based on that, she would have required another prescription about that time. It is improbable and not consistent that the patient would have written her name and address in her own hand on the top of the prescription and then forged the respondent's signature on the bottom and added the other information on the prescription. It is the Tribunal's observation that the respondent frequently resorted to claiming or implying forgery of his signature to explain away documents inconsistent with his account of events. The Tribunal makes this finding conscious that the patient at first when shown the prescription did not recognise the handwriting as hers and then said it was her handwriting but was unable to remember the circumstances in which the prescription was written although she said later that she could remember those circumstances.

99 The Tribunal also accepts the patient's account that she became very ill with tonsillitis soon after she and the respondent were living together and he gave her Klacid.

100 In November 2004, the patient was very ill. She had lost a great deal of weight and was, according to the respondent, looking very unwell. She developed a serious outbreak of genital warts. The respondent agreed that he examined her and told her that in his experience, it was of an extent usually associated with people who are receiving chemotherapy.

101 The respondent wrote a referral for the patient to a gynaecologist, Dr Caska. The respondent said that he wrote the referral on his home computer and gave it to the patient to take with her to the appointment. The respondent paid for the patient's attendance on Dr Caska on 3rd November. The respondent went to his consulting room and, from the patient's notes, faxed a copy of her most recent pap smear result to Dr Caska for his information because it was relevant to Dr Caska's consideration of the patient's condition.

102 Despite the referral bearing the address of the medical centre, the letter of advice after that consultation was sent by Dr Caska to the respondent's home. The respondent said that he never received it nor did he ask Dr Caska for a copy. He said that he did ask the patient what Dr Caska had recommended as treatment. In all of the circumstances, the Tribunal finds it improbable that the respondent did not receive a copy of the letter from Dr Caska.

103 On the 5th November, the patient said that she went with the respondent to the medical centre and he drew blood from her and sent it to pathology for testing. She said that later that day he received the results over the telephone from the lab and told her that the results were normal.

104 The respondent denied that he arranged for the blood tests. The Tribunal is satisfied that the respondent did arrange for the patient's blood to be tested, the results to be sent to him and that he discussed them with her.

105 In his evidence about this incident, the respondent was at pains to indicate that he was not acting as the patient's general practitioner but as a doctor would treat a partner who became ill with an embarrassing condition. Although it appears that the respondent did not contact Dr Caska to discuss his consultation with the patient, the Tribunal is satisfied that the respondent's conduct at this time was consistent with him acting as the patient's general practitioner and the steps he took such as ordering the blood tests, providing a referral and pap smear result to Dr Caska were directly connected with the patient's condition and were done by the respondent in furtherance of the treatment of her condition. The respondent admitted that from time to time he examined the patient to determine whether the condition had subsided before they recommenced a sexual relationship. Although these examinations might have occurred informally to the extent that they were done outside his surgery, the Tribunal is nonetheless satisfied that they were done in his capacity as the patient's general practitioner.

Findings

106 The Tribunal is satisfied that from early 2004 until at least December 2004, the respondent was the patient's general practitioner. The Tribunal makes this finding notwithstanding the notes that indicate on a few occasions after first consulting the respondent, the patient saw another doctor at the medical centre. The patient regarded him as her general practitioner and he gave her every reason to believe that he was. The Tribunal also takes into account as persuasive that in the time between August and December, there is no record that the patient or her son attended any general practitioner for treatment. This is not consistent with the pattern of attendances for both the patient and particularly her son as shown in the Medicare records.

107 The Tribunal is satisfied that between April and August 2004, the respondent continued a romantic relationship with the patient that started when she began to consult him earlier that year, that she visited him at the medical centre to continue their relationship and from time to time the respondent treated her for medical conditions.

108 The Tribunal does not accept that the respondent took any steps to persuade the patient not to remain his patient and is satisfied that when the issue was raised of whether it was appropriate for her to remain his patient in light of their relationship, it was the respondent who suggested that he could continue to offer her treatment but not have her sign the Medicare assignment form to keep the fact of his treatment of her hidden.

109 The Tribunal finds that shortly after commencing a sexual relationship in August 2004, the patient and the respondent spent extended periods in each other's houses. The Tribunal is satisfied that the patient spent extended periods of time at the respondent's house at North Avoca in August and remained there until about late October 2004 when the respondent moved into the patient's house where he spent extended periods of time.

110 The Tribunal finds that the treatment offered to the patient in November 2004, rather being the respondent doing the patient a "favour" of making a referral, was acting as her general practitioner.

111 The Tribunal is satisfied that during the period from January until December 2004, the respondent was the patient's doctor and in that period he carried on an inappropriate personal relationship with her.

Conclusion

112 The Tribunal finds each matter in Particular 1 and the facts of Particular 2 and Particular 4 made out to the relevant standard.

Particular 3

That the respondent supplied drugs for recreational purposes to Patient A including marijuana, Endone, MS Contin and cocaine between August and December 2004.

113 The patient said that up until she found that she was pregnant with her son she used significant amounts of marijuana. When she discovered she was pregnant she stopped using it and did not take recreational drugs until she started living with the respondent in August 2004. After that time, the patient said that he would buy large amounts of marijuana for her to smoke during the day.

114 The patient said that she was introduced to cocaine by the respondent, who she said, used large quantities of the drug and they often snorted cocaine in his surgery.

115 The patient said that on one occasion, the respondent brought home morphine in the form of MS Contin and offered it to her to try. She said that it made her unwell and she never used it again. The drug was in a packet bearing the name of another of the respondent's patients, an elderly man to whom the respondent prescribed MS Contin. The notes for this patient show that shortly after being prescribed the drug, he complained that it did not agree with him. The applicant contended that the patient returned the unused MS Contin to the respondent.

116 There is no doubt that the patient was in possession of the partially used packet of MS Contin prescribed for the elderly patient. The respondent denied that he had given it to her to try. He could not explain how it came about that the patient had the drugs in her possession. It was suggested for the respondent that the patient had taken the packet from the respondent's desk on a visit to his room.

117 The patient said that occasionally in August and September 2004, the respondent brought home the drug Endone to use recreationally and shared it with her.

118 The patient said that the respondent provided her with a great quantity of Valium. She said that she developed a tolerance for the drug and was taking up to 10 -12 tablets at a time. The respondent would bring home new supplies of the drug every day.

119 In her statements the patient said that the respondent wrote prescriptions for the Valium and she would have the prescription filled in local pharmacies. In her evidence to the Tribunal the patient said that she could not remember filling prescriptions but recalled the respondent bringing home supplies of Valium that he told her he got from pharmacies without the need for a prescription. At another point, she said that the Valium came from drug company samples.

120 The respondent admitted taking drug company samples to his house, he said either to dispose of or keep for his own use. He denied that drug companies provide samples of benzodiazepines or that it would be possible to obtain Valium from a pharmacy without a prescription. This evidence accords with the view of the Tribunal and was not suggested in submissions that it was possible to obtain benzodiazepines in either of these ways.

121 The Pharmaceutical Services Branch of the NSW Department of Health (the 'PSB') conducted an inquiry into the respondent's prescribing. The investigators inquired of pharmacies local to the medical centre. No prescriptions for Valium written by the respondent for the patient were found. The applicant submitted that this investigation was not an exhaustive search of all pharmacies. That is true, however, the patient said that she had filled prescriptions at local pharmacies and, in that event, the Tribunal would expect there to be some indication of this in the records of the local pharmacies.

122 Equally, no prescriptions for Endone other than one written for the respondent for his own use were discovered by the PSB in the investigation.

123 The patient was subject to an involuntary admission to a psychiatric hospital, the Mandala Clinic on 15th March 2005. She remained there until about the 9th April 2004. On her admission she was floridly psychotic and was diagnosed as having a drug induced psychosis.

124 According to the clinic notes, the patient's mother said that she believed that the patient had been using marijuana and cocaine before her admission. Her mother also reported being told by a neighbour that the patient had been asking for cocaine from drug dealers. When she was admitted, the patient said that she had been using cocaine.

125 Towards the end of 2004, the patient's mother, Mrs L, questioned the respondent about whether he had introduced her daughter to drugs. Mrs L said that the respondent denied that he had but told her that he had a cocaine problem in the past but not then. The respondent denied that he had ever had a problem with cocaine and denied that he used it. It seems that Mrs L's question stemmed from the apparent deterioration of the patient's health and her appearance.

126 Greg Smead, a long term friend of the patient provided statements [27] in which he asserted that the respondent had given him ecstasy at a party and that he had seen the patient and the respondent use drugs together. In a second statement, he said that on another occasion he had smoked cannabis with the respondent and once he and the respondent snorted cocaine together on the way to a party. His evidence to the Tribunal was to the effect that he and the respondent had ecstasy at a party on New Year's Eve in 2004 and had smoked some cannabis with the respondent. Mr Smead was admittedly and obviously antagonistic towards the respondent. His demeanour in the witness box was hostile. The Tribunal could not find that he was doing his best to give an accurate account. However even if he is accepted, his evidence does not support the patient's account of the extent of drug taking engaged in by the respondent nor his supply of drugs to her.

127 There seems no doubt that the patient was suffering from a drug induced psychosis when admitted to Mandala clinic. The observations of the patient's mother of the deterioration in her physical condition and the respondent's observations that the patient appeared sedated at home certainly indicate that the patient was using drugs.

128 There is however, no evidence on which the Tribunal could find that the respondent provided her with Valium whether on prescription or otherwise for recreational use. Nor is there any evidence that the respondent used Endone recreationally and provided it to the patient to use. The lack of any prescriptions to provide either Valium and Endone persuades the Tribunal that the respondent did not provide large amounts of Valium to the patient. Equally there are no prescriptions to support his supply to her and his use of Endone as a recreational drug.

129 There is no objective evidence that the respondent provided the patient with large amounts of marijuana for her to smoke during the day while he was at work nor is there evidence to support the extent of the alleged cocaine use by the respondent and the patient or that the respondent snorted cocaine at work.

130 Given the seriousness of the allegations, the lack of any supporting objective evidence and the degree of confusion that attended the patient's evidence in regard to the Valium, the Tribunal can make no finding that the respondent supplied the patient with those prescription drugs for her recreational use. As to the use of cocaine and marijuana, if the respondent and patient did use those drugs recreationally, it is not a matter that in the view of the Tribunal falls within the complaint as reflecting on the respondent's practice of medicine as alleged in the complaint. The Tribunal declines to make the finding that he used or supplied cocaine to the patient.

131 How the patient came into possession of the MS Contin is curious. It is a serious allegation to assert that a medical practitioner provided a narcotic analgesic to a person for other than therapeutic use. The Tribunal is unable to find to the requisite degree that the respondent gave the MS Contin to the patient for her to use as a recreational drug.

132 The Tribunal finds that this particular is not established.

Particular 5

That the respondent paid Patient A $10,000 as an inducement not to complain about the practitioner to the HCCC.

133 In January 2005 a sum of $10,000 was transferred from the respondent's bank account into the patient's account. Some hours later, the respondent attempted to reverse the transfer. The patient refused to return the money. The respondent attempted to have his bank retrieve the funds and when that was not successful sought relief through the Banking Ombudsman. He commenced a civil action against the patient in the Local Court in March 2005. That matter was resolved by consent without the patient being required to repay the money.

134 The respondent said that after speaking to the patient he agreed to pay her $100 towards her telephone account for calls made by him. He maintained in his evidence that he did not intend to transfer $10,000. The patient said that she and the respondent had a conversation about money in January 2005. She said: [28]

"I was just furious. I was exhausted, drug affected, skinny, tired. I felt like I was on death's door and so I was desperate. I just said to him 'Look, you know I want to go to the HCCC. I am angry at you okay' and he's like 'what can I do to appease you ? What can I do to help you?' and I said 'well give me money then'. I wanted money to get away. So he said 'Okay how much?' I said 'Ten grand'. Then he put it into my account. Simple and I didn't say to him that I'd go to the HCCC or anything if he didn't give the money. None of that occurred you know."

135 The Tribunal finds that the respondent's evidence about the circumstances of the transfer of money into the patient's account wholly lacking in credibility and is of the view that he intended that $10,000 be transferred to her. The Tribunal can make no finding about why he then attempted to have the money retrieved but is satisfied that his letters to the bank and the Banking Ombudsman are misleading about his state of knowledge about where the money went and the circumstances of the transfer. His explanations about the meaning of the letters were unconvincing.

136 The patient denied in her evidence to the Tribunal that the money paid to her was an inducement to stop her complaining to the HCCC. In those circumstances, the applicant submitted that the Tribunal could not find that the particular is made out.

137 The Tribunal finds that particular 5 is not made out.

Particular 6

That the respondent assaulted Patient A at a Melbourne hotel room in December 2004 by attempting to choke her and by hitting her with a shower door.

138 Towards the end of 2004, the relationship between the respondent and patient deteriorated and there were frequent arguments between them. In December 2004 the respondent and the patient travelled to Melbourne for a holiday. The patient and respondent got into an argument and the patient alleged that the respondent was violent to her and tried to choke her. She said that she ran into the bathroom and into the shower stall. The respondent followed her in and swung the glass door open and the door hit her. The respondent denied any violence towards her but admitted the argument. Given the findings that the Tribunal has made about the respondent's credibility and taking into account the quality of the relationship at this time between the respondent and the patient, the Tribunal accepts that there was a level of violence between them.

139 It was argued for the applicant that this incident is illustrative of the exploitation of the relationship between the patient and the respondent. It was argued for the respondent that these events, if the Tribunal accepted that they occurred, represent a continuation of the improper relationship rather than representing an exploitation of the patient.

140 The Tribunal accepts the respondent's argument and finds that any violence that attended the break down of their relationship is not illustrative of exploitation to any further degree that that already implicit in the a relationship.

141 The Tribunal finds that Particular 6 is not established.

Particular 7

Advised Patient A in August 2004 to cease taking Zoloft the anti-depressant and prescribed and supplied her with Valium thereafter.

142 Apart from one prescription for Ducene, there is no record of the respondent prescribing Valium for the patient. Further, there is evidence that at least on the 7th August 2004, he prescribed Zoloft for the patient.

143 The Tribunal does not find this particular proved

Particular 8

The respondent used cocaine regularly in the period August to December 2004.

144 This particular is alleged as refecting on the respondent's capacity as a medical practitioner.

145 Senior Counsel for the respondent argued that the complaint does not allege that the respondent is not of good character or that by reason of cocaine use his practice of medicine has fallen below the standard reasonably expected of a practitioner of his level of training or that his use of cocaine was improper or unethical conduct relating to the practice of medicine. In those circumstances, he submitted that even were the Tribunal to be satisfied that the respondent had used cocaine in that period, it would be unsafe to then use that finding as proof of the complaint.

146 The Tribunal finds that this particular does not relate to the practice of medicine by the respondent either by reference to the standards or to unethical or improper conduct. The Tribunal does not find this particular made out.

Particular 9

Failed to keep records in accordance with the Medical Practice Regulation 2003.

147 There are no notes of the respondent's treatment of the patient between March and August 2004 save for the notes concerning the receipt of the blood tests. There is no note in the patient's records of the referral to Dr Caska, no copy of the letter from Dr Caska nor any treatment plan or advice given to her on the management of the illness for which she was referred. The respondent made no note of any examination he conducted after the patient had seen Dr Caska to determine the progress of the illness and the state of the warts. There is no indication in the notes that the respondent had discussed the results of the blood tests with the patient.

148 The respondent agreed that he made no notes relating to the patient's illness in November 2004 and to that extent agreed that he had failed to keep records in accordance with the regulation.

149 The Tribunal finds this particular made out.

Discussion

150 The rules of the NSW Medical Board are clear about the propriety of sexual activity between medical practitioner and current patients. There are a number of reasons [29] supporting the rule. Particularly apposite to this case are the following:

"(a) The doctor patient relationship depends on the ability of the patient to have absolute confidence and trust in the doctor,

(c)The doctor patient relationship is not one of equality. In seeking treatment, the patient is vulnerable. Exploitation of the patient is an abuse of power,

(i) Personal involvement with the patient will often lead to clouding of judgment."

151 This patient was particularly vulnerable at the time she first saw the respondent. She had recognised a re-emergence of her acute anxiety and obsessive compulsive thought disorder as a result of the injury to her child. She told the respondent that she had been treated by a psychiatrist for this condition at least on the 9th January when he wrote a referral letter for her and gave her a prescription for a benzodiazepines to assist in containing her symptoms. In February 2004 the respondent diagnosed her with depression.

152 Later on in their relationship and before August 2004, the respondent knew that the patient had been a heavy user of marijuana in the past and had suffered sexual abuse at the hands of a relative. Indeed, the respondent intervened in this regard and spoke to the patient's mother urging her to accept the patient's account of the abuse rather than disbelieving her.

153 The Tribunal does not accept the argument advanced on behalf of the respondent that the applicant overstates the patient's vulnerability. That shortly after January 2004, the patient had been seen by Dr Smith who had instigated treatment and from then on the patient appeared to be well, happy and vivacious does not detract from the accepted fact that the patient had an ongoing psychiatric condition that was prone to exacerbations.

154 The Board guideline about the inappropriateness of sexual relationships with patients does not distinguish between robust patients and those with psychiatric or emotional conditions. All patients are vulnerable in an inappropriate doctor patient relationship.

155 The respondent could not have been in any doubt that the patient was infatuated with him. He encouraged that attraction and the calls between them in February to April 2004 were to promote the relationship between them. The patient said that she was in love with him. She was significantly younger than he was.

156 That the patient was vulnerable to the respondent is best illustrated by the circumstances in which the patient attended Heather Railton, a psychologist. Towards the end of the relationship, the respondent said that the patient had lost a great deal of weight and was acting irrationally. He said that she was deeply suspicious of him and suspected that he was having affairs or was attracted to other women. The respondent said that he could not dispel her suspicions. Their relationship was deteriorating. He suggested to the patient that she see Ms Railton. The respondent said that it was for relationship counselling although it is clear that he did not intend to go with her.

157 The respondent told the patient to attend Ms Railton and the patient accepted that advice without demur, a clear demonstration of her trust in him and acceptance of his advice.

158 When it was suggested to the respondent that, as a medical practitioner, he might have considered that the patient's irrational behaviour as he observed it was because she had stopped taking the Zoloft. The respondent said that had he seen the patient in his rooms (by inference, when acting as a general practitioner) he might have considered that, however he did not but reacted to her change in temperament as a partner would. Even accepting this statement, which seems to the Tribunal to be ludicrous, the respondent sent the patient to see a psychologist, not the psychiatrist who had treated her, to whom he had referred her and who he knew had at least in January 2004, commenced cognitive behaviour therapy with the patient. It demonstrates the blurring of the boundaries and clouding of judgement that is the vice of conducting a romantic relationship with a patient.

159 There is no doubt in this case that the patient was dependent on the respondent. She believed that he was her general practitioner and he gave her every reason to believe that. It was clear from her evidence that she trusted him to act in her interests and in support of her welfare.

160 The Tribunal is of the view that the respondent attempted to persuade it that a sexual relationship existed with the patient in 2003 so as to portray the circumstances of his consultations with her in 2004 as being in the nature of an emergency or doing the patient a favour based on their past relationship rather than him commencing a relationship with a current patient.

161 The Tribunal is satisfied that the respondent commenced a romantic relationship with the patient shortly after she began consulting him in early 2004 and that relationship continued throughout the year. There was no break in the relationship and the respondent continued throughout that time to act as her general practitioner.

162 This matter concerns sections 36 and 37 of the Medical Practice Act 1992 (the 'Act'). Those sections are in the following form:

S 36(1) "For the purposes of this Act, unsatisfactory professional conduct of a registered medical practitioner includes each of the following:..

(a) Any conduct that demonstrates a lack of adequate knowledge, skill, judgement or care, by the practitioner in the practice of medicine is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience;

(b) Any contravention by the practitioner (whether by act or omission) of a provision of this Act or the regulations;

(c) Any other improper or unethical conduct relating to the practice or purported practice of medicine.

S 37 "For the purposes of this Act, professional misconduct of a registered medical practitioner means unsatisfactory professional conduct of a sufficiently serious nature to justify suspension of the practitioner from practising medicine or the removal of the practitioner's name from the Register."

163 The Tribunal having found particulars 1, 2 and 4 made out is satisfied to the requisite standard that the respondent has engaged in improper and unethical conduct in the practice of medicine. It also demonstrates a lack of adequate judgement in the practice of medicine that fell significantly below the accepted standard. The Tribunal also finds that in both respects the conduct is sufficiently seriousness to amount to professional misconduct.

164 The Tribunal finds that the respondent failed to maintain records in accordance with the provisions of the Medical Practice Act. The act requires a medical practitioner to record information relevant to diagnosis and treatment of the patients; the patients' medical history, the results of physical examinations performed, test results, plan of treatment for the patients, any medication prescribed for the patient and advice given to the patients.

165 It is well established that the need for a practitioner to maintain records of the type mandated by the Act allows another practitioner to take over the care of the patient and provides an important safeguard for the patient in allowing consistency in treatment.

166 The Tribunal finds that this failure demonstrates a significant departure from the standard of knowledge, skill, judgment or care reasonably expected of a medical practitioner. Of itself, the Tribunal does not find that this breach amounts to professional misconduct. However, the failure to make proper notes occurred in circumstances where the respondent was in a relationship with a current patient but, so far as the period April to August 2004, was attempting to keep the relationship secret. After August 2004, the respondent failed to make records either because he could not truly recognise his actions as being those of a doctor and patient or because he did not want to reveal that he was acting as the patient's general practitioner. In either event, the surrounding circumstances enable the Tribunal to find that this conduct is of sufficient seriousness to amount to professional misconduct

167 The respondent made no admissions. He denied that a proper construction of events was that he was conducting a romantic relationship with a current patient but insisted that instead he was in a relationship with the patient and, in the case of emergency in November 2004, made a referral for her.

168 The Tribunal finds that the respondent has no insight into his conduct, no ability to see how his actions may have been viewed by the patient nor any ability to see how conducting a relationship with a current patient can cloud judgment and exploit the patient. In those circumstances, the Tribunal could have no confidence that this is an isolated incident which would not be repeated.

169 It follows from the maintenance of the respondent's denials that he expresses no remorse for the consequences of his actions.

170 During addresses, Senior Counsel for the respondent tendered some testimonials from colleagues of the respondent. [30] The applicant did not object to the late tender of the documents however indicated that had they been introduced during the evidence, the applicant would have cross-examined Dr Ransom. That being the case, the weight to be attributed to Dr Ransom's opinion of the respondent is somewhat diminished.

171 Dr Ransom is a general practitioner working with the Primary Health Care Team at the Wyoming Medical centre. He has worked with the respondent since 2000. Dr Ransom believes that the respondent is competent and has a high level of medical knowledge and experience.

172 Other colleagues who provided letters spoke of the respondent's communication skills and appropriate clinical management of patients. Dr Vass who also works at the medical centre said she believes the respondent to be respectful and caring of his patients.

173 The effect of the testimonials is that the respondent is well regarded both in his dealings with patients and with his medical skill. The Tribunal accepts these expressions of opinion in the letters, subject to the caveat in relation to Dr Ransom. However, the conduct of the respondent relates to his inability to separate his personal feelings and private conduct from his professional life and concerns a relationship that was conducted largely clandestinely until August 2004. In those circumstances, opinions about public conduct carry less weight than they might in other cases.

174 The Tribunal finds that the respondent has abused his position of medical practitioner

175 The jurisdiction of the Tribunal is a protective not punitive one. The purpose of disciplinary proceedings is to maintain proper ethical and professional standards in protection of the community and also to protect the good standing and reputation of the profession. The object of protecting the public includes deterring the practitioner from repeating his misconduct and deterring others who might be tempted to behave in a similar way. The role of the Tribunal is also to ensure that public and professional colleagues can place their confidence in the practitioner. In Law Society of NSW v Foreman (1994) 34 NSWLR 408 at 441B, 471B, it was said:

"One element of deterrence is providing an assurance to the public that serious lapses in the conduct of...practitioners will not be passed over or lightly put aside, but will be appropriately dealt with"

176 To give effect to the protective jurisdiction of the Tribunal, it may make orders which operate in a number of ways, by preventing the practitioner from practising or by deterring him from repetition of the conduct. (NSW Bar Association v Meakes) [31]

177 In considering what orders to make it is important to have regard to the gravity of the conduct which comprises the professional misconduct. The respondent acted against the clearest dictate of the Rules. He knew that his conduct would attract disapprobation. He was sufficiently familiar with the circumstances of his colleague Dr Anderson to raise the issue with the patient, not as part of an insistence that she see another practitioner, but to justify keeping the fact of his treatment of her secret.

178 The Tribunal is satisfied that the only order which could give effect to its protective functions, to assure the public and the medical profession that this conduct is not taken lightly, is to order that the respondent be de-registered.

179 In giving his evidence, the respondent appeared not to know or even be familiar with the Board guidelines governing the conduct between practitioners and patients. His ignorance of his professional obligations was of significant concern both at the time of the conduct complained and it seemed to the Tribunal that the respondent had not used the time that had passed since his relationship with the patient, to acquaint himself with those obligations.

180 The respondent showed no insight about the seriousness of breaches of professional obligations such as this nor how his actions may have affected the patient. He demonstrated no remorse or contrition. There was no evidence that he had sought counselling or advice about his conduct.

181 The conduct of the respondent was not isolated nor was it a passing departure from proper standards.

182 In all of the circumstances, the Tribunal has no confidence that the respondent has equipped himself to prevent or avoid falling into similar behaviour in the future and again act in disregard for the privilege of his position.

183 In considering the time to pass before the respondent be permitted to re-apply to be registered, the Tribunal has taken into account that in some circumstances there can be a reformation of character.

184 However, as Walsh JA said in ex parte Tziniolis: Re Medical Practitioners Act: [32]

"Reformations of character and of behaviour can doubtless occur but their occurrence is not the usual but the exceptional thing. One cannot assume that a change has occurred merely because some years have gone by and it is not proved that anything of a discreditable kind has occurred. If a man has exhibited serious deficiencies in his standards of conduct and his attitudes it must require clear proof to show that some years later he has established himself as a different man."

185 The Tribunal will order that the respondent not apply to be re-registered for 2 years from the date of the orders.

Endnotes

1 Briginshaw v Briginshaw (1938) 60 CLR 362

2 (1965) 112 CLR 517 at 521 and applied in Bannister v Walton

3 Exhibit 1

4 Exhibit 1 paragraph 38

5 paragraphs 103 to 106

6 transcript page 370.37

7 transcript page 542 line 21

8 transcript page 402 line 45

9 Exhibit 4

10 transcript page 406 line 48

11 transcript page 405 line 42

12 Exhibit 1 paragraph 25

13 transcript page 473

14 transcript page 482

15 transcript page 482

16 transcript page 558 ff

17 transcript page 476.2

18 transcript page 506.15

19 statement patient, Exhibit A, Volume 1, tab 5 paragraph 44

20 Exhibit 1, paragraph 6

21 Exhibit 1, paragraph 6

22 Exhibit A, Vol 1, tab 6

23 30th April, Patient notes

24 Re the Medical Practice Act and Dr Stuart Anderson [2004] NSWMT 3, 13th February 2004

25 June 2006. Exhibit A volume 1, tab 4

26 Attached to the PSB investigation report

27 Exhibit G

28 transcript page 51.31

29 NSW Medical Board guideline "Sexual Misconduct" Exhibit A, Volume 1, tab 25

30 Exhibit 6

31 [2006] NSWCA 340 at [114] per Basten JA

32 (1966) 67 SR (NSW) 448 at 461

CITATION:	HCCC v Dr Graeme Harris [2008] NSWMT 6
TRIBUNAL:	Medical Tribunal
PARTIES:	Health Care Complaints Commission Dr Graeme Harris
FILE NUMBER(S):	40005 of 2008
CORAM:	Ainslie-Wallace, DCJ - Glover, Prof W - Jammal, Dr W - Houen, Ms J
CATCHWORDS:	Sold restricted substances to patients and persons unknown for personal financial gain - Supply drugs without prescription - Engaged in improper, unethical conduct relating to the practice of medicine - Self-prescription - Respondent not of good character
LEGISLATION CITED:	Medical Practice Act 1992 Poisons and Therapeutic Goods Act 1966
CASES CITED:	NSW Bar Association v Cummins (2002) 52 NSWLR 279; Bowen-James v Walton & Ors (unreported CA (NSW) 5.8.1991); Briginshaw v Briginshaw (1938) 60 CLR 362; Bannister v Walton (unreported CA (NSW) 30.4.1992); exparteTziniolis: Re Medical Practitioners Act (1966) 67 SR (NSW) 448; HCCC v Karalasingham [2007] NSWCA 267; McBride v Walton (unreported CA (NSW) 15.7.1994; Law Society of NSW v Foreman (1994) 34 NSWLR 408; NSW Bar Association v Meakes [2006] NSWCA 340
DATES OF HEARING:	13th November 2008 19th December 2008
DATE OF JUDGMENT:	18 December 2008
LEGAL REPRESENTATIVES:	K Eastman of counsel for the HCCC No Appearance
ORDERS:	1 The respondent's name forthwith be removed from the Register of Medical Practitioners and he not apply for re-registration for a period of seven [7] years from the date of these orders; 2 Respondent to pay the applicant's costs of the application