HCCC v Dr James Taylor

[2010] NSWMT 10

New South Wales

Medical Tribunal

CITATION:	HCCC v Dr James Taylor [2010] NSWMT 10
TRIBUNAL:	Medical Tribunal
PARTIES:	Health Care Complaints Commission Dr James Taylor
FILE NUMBER(S):	40008 of 2009
CORAM:	Puckeridge, QC DCJ - Child, Dr D - Tucker, Dr P - Houen, Ms J
CATCHWORDS:	s64(2A) Prohibtion Order - Substantial Risk - Health Service definition
LEGISLATION CITED:	Medical Practice Act 1992 (NSW) Health Care Complaints Act 1993 (NSW)
CASES CITED:
DATES OF HEARING:	07/05/10
DATE OF JUDGMENT:	11 June 2010
LEGAL REPRESENTATIVES:	Ms K Stern Mr S Barnes
ORDERS:	1) The Tribunal orders that the respondent is suspended from the practice of medicine and is not to apply for registration as a medical practitioner until the expiration of three (3) years from the date of this determination.; 2) The Tribunal orders that the respondent pay half the costs of the complainant.

JUDGMENT:

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JUDGMENT

1 The Notice of Complaint alleges unsatisfactory professional conduct and professional misconduct. The complaint states that the doctor engaged in improper or unethical conduct relating to the practice of medicine. Particulars of complaint as stated in the Notice of Complaint are:-

I. In December 2006 the doctor entered into a personal and sexual relationship with Patient A.

II. Between late December 2006 and early March 2007 and whilst he was in a personal and sexual relationship with Patient A, the doctor wrote prescriptions for Patient A.

III. The doctor failed to refer or ensure that Patient A was referred to another psychiatrist after he had entered into a personal and sexual relationship with her in December 2006 and in circumstances where the doctor changed Patient A’s psychoactive medication in December 2006.

IV. The doctor failed to refer or ensure that Patient A was referred to another psychiatrist and/or to assist Patient A to obtain other medical or psychological support after he ended their personal and sexual relationship in March 2007 which caused Patient A to suffer considerable emotional distress.

2 The doctor is at present not registered to practice medicine, and does not at present seek to be re-registered. The complainant seeks orders that he not make an application for re-registration within a specified period of time, and also seeks an order pursuant to s64(2A) of the Medical Practice Act that the doctor be prohibited from providing counselling services falling within the definition of health services in s4 of the Health Care Complaints Act 1993. The doctor does not oppose an order that he not apply to be registered as a medical doctor within a period of 3 years from the date of determination by this Tribunal, but opposes a prohibition order.

3 The doctor has admitted the particulars of complaint. The Tribunal is required to find on all the evidence before it whether the particulars of complaint to which the doctor has admitted amount to unsatisfactory professional conduct and/or professional misconduct. The Tribunal is also required to take into account the behaviour of the doctor as shown by proved particulars of complaint in determining the appropriateness of any prohibition order pursuant to s64(2A).

4 The doctor graduated as a Bachelor of Medicine and Bachelor of Surgery from the University of Sydney in 1971 and in 1993 became a fellow of the Royal Australian and New Zealand College of Psychiatrists. He was first registered in NSW as a medical doctor on 04 January 1971. On 21 January 2009 doctor’s name was removed from the register pursuant to Schedule 1 clause 27(1) of the Act and has remained unregistered.

5 In her statement of 25 October 2007, Patient A states that she first commenced a therapeutic relationship with the doctor in about 1993 and lasted for 14 years. She stated that the frequency of her consultation varied depending upon her mood. She also stated that in the first 4 years after commencing treatment, there was social contact about twice but such social contact ceased when the doctor married. In 2004 the patient moved to Queensland. She stated that she would talk to the doctor by phone to get scripts. Relevantly, in her statement of 25 October 2007, that patient states:-

“7) In December 2006 the therapeutic relationship changed. When I phoned to get a prescription and Dr Taylor told me that his marriage had broken up. He came over to my house on Christmas Eve day and we talked for 3 hours. We had sexual intercourse for the first time.

8) The sexual relationship continued until 06 March 2007”.

6 In a letter dated 19 November 2007 the doctor states that Patient A was last seen by him in his room on 12 October 2005, but that there was telephone contact on 29 March 2006. The doctor later acknowledged that a face to face consultation occurred on 21 September 2006 regarding the patient’s mental state and medication, although there was no clinical note in respect of such consultation.

7 The doctor states that treatment of Patient A included long term antidepressants, monitoring of mood, and supportive psycho-therapy directed at specific issues as they arose. The doctor in a letter dated 24 January 2008 stated that the most likely explanation for the missing clinical notes of September 2006 were that they were somehow mislaid when he moved rooms from Rowntree St to Darling St just before the Christmas break in 2006. The doctor states that the most likely content of the consultation on 21 September 2006 concerned Patient A’s then mental state and her present medication.

8 The doctor states that the patient contacted him by phone, some time in mid-December 2006 to inform him that she was back living in Sydney, was well and did not wish to make an appointment. Patient A states that she phoned Dr Taylor in mid-December 2006 to wish him a happy Christmas and did not seek any medical appointment with him. The doctor states that he told Patient A he doubted if his own Christmas would be a happy one as his fourth wife had left him and he was very upset. Patient A suggested that if he wanted to speak to someone about his problems “to come over for a cup of tea”. The doctor states that he was of the opinion that as there had been little contact between Patient A and himself over the preceding year or two, he could meet the patient socially on a non-therapeutic basis.

9 The relationship between the doctor and the patient had been one of long standing. The patient had confidence in the doctor and sought his advice when she considered she was possibly in need of treatment. Medicare records show that a claim was made on Medicare for the consultation on 21 September 2006. The explanation given by the doctor in the letter dated 24 January 2008 for the absence of clinical notes for that consultation shows that as at 2006 he was aware of the possible need of the patient for treatment for a mood disorder.

10 The patient states that on 24 December 2006 and whilst they were both in bed together, the doctor informed her that he considered the patient to be really more bi-polar and that she would do well with a new medication called Lamictal. The medical evidence before the Tribunal shows that Lamictal is an appropriate form of treatment for a bi-polar condition. The doctor states that in the context of what he considered was a “non-therapeutic relationship” the patient disclosed certain matters to him which she had never disclosed during the time he had been seeing her as a patient. The matters disclosed to him caused him to be concerned that he might have overlooked “the possibility of a bi-polar element to Ms Taylor’s mood disorder”. (see letter to the HCCC 08 April 2008).

11 Documents obtained from Brunskill’s Pharmacy at Mosman show that Dr Taylor prescribed Lamictal in a prescription dated 21 December 2006. The documents show that the prescription was completed on 28 December 2006. On the evidence of Patient A, if the doctor prescribed Lamictal on 21 December 2006 this occurred prior to the commencement of any sexual relationship between them. The patient stated that in December of 2006 she telephoned Dr Taylor for a renewal of her prescription for the drug Effexor.

12 In a determination by a Medical Tribunal dated 26 March 2010 that Tribunal stated that “medical work” was defined by looking at the whole process and the environment in which it occurs. That Tribunal adopted a description of what constitutes the practice of medicine as being the process of taking a history, examination of a patient, coming to a provisional diagnosis, initiating a management plan and advice, and arranging follow up.

13 Tribunal notes that when the doctor stated in the letter of 08 April 2008 that he may have overlooked the possibility of a bi-polar condition he added the words “whilst I was treating her”. That statement shows the difficulty of drawing a line under a particular date as to when a doctor-patient relationship actually ceases. The Tribunal considers that by prescribing Lamictal for Patient A in December 2006 the doctor/patient relationship between the doctor and Patient A had not ended.

14 The doctor, whilst admitting that a sexual relationship occurred as stated by Patient A on 24 December 2006 and that from January 2007 they socialised together, was of the opinion that a doctor-patient relationship had ended. In a letter of 19 December 2007 he stated that he openly discussed personal issues with the patient once he considered the relationship to be non-therapeutic.

15 Some of the personal issues which were affecting the stress levels of Patient A concerned questions of accommodation for herself and her daughter. The patient states that from about the last week of January to the first week of March 2007 both she and the doctor made many enquiries in relation to properties in the Balmain area for suitable accommodation for herself, her daughter and Dr Taylor. Patient A states that it was the intention that they all live together. Dr Taylor states that suitable rental accommodation was never found.

16 Patient A states that she did obtain rental space for a practice as a physiotherapist at 70 Pitt St, Sydney. She states that she obtained the rental space on the basis of statements made by Dr Taylor as to financial assistance and commenced paying the rent on 06 March 2007.

17 Patient A states that at approximately 7:30am on 06 March 2007 she received a telephone call from the doctor and understood from what the doctor said to her that he was terminating their relationship. In her statement Patient A states that the emotional impact on both her and her daughter by the doctor withdrawing from their relationship and plans for living together was devastating. On the evening of 06 March 2007, Patient A telephoned Dr Taylor and told him that she was in a crisis situation. She states that the doctor responded by saying, “Oh just take a double dose of Lamictal; I am terribly sorry; this has all been my fault.”

18 The doctor in a letter dated 24 January 2008 states that he can recall a long telephone conversation on the Saturday afternoon around early March 2007 when “mood disorder” was discussed with the patient. The doctor states that Patient A expressed some concern that she should be “labelled as bi-polar” and the doctor states that he was at pains to say that this was only a possibility to be considered by whoever managed her mood disorder. He further states that the other matter which was discussed was his lack of judgment in becoming involved in a relationship whilst still in the throes of grief over the loss of his marriage and the resultant changes to contact with his 7 year old daughter to whom he states he was very close.

19 In March 2008, the HCCC wrote to the doctor requesting advice as to the rationale for prescribing Lamictal in view of the statement in his letter dated 24 January 2008 that he did not diagnose Patient A with bi-polar affective disorder but suggested that the patient raise the issue with whoever she chose to manage her mood disorder. The doctor stated by way of reply to the HCCC that he prescribed the medication in the context of Patient A having a trial of mood stabilisers pending an appointment with any future treating psychiatrist. He stated that such a trial might be of assistance to the psychiatrist in making a diagnosis. He further stated that he now realises that “it would have been more appropriate for another doctor to prescribe this medication for Ms Taylor”.

20 On the evidence before it and taking into account the admission by the doctor, the Tribunal is comfortably satisfied that particulars I and II of the complaint have been proved to the required standard.

21 Dr Janine Stevenson of the Department of Psychological Medicine at Westmead Hospital has stated in a report of 10 April 2008 that the sexual relationship which occurred between the doctor and Patient A represented conduct by the doctor which fell well below that expected of any psychiatrist. She states that his behaviour invited her strong criticism and referred to the ethical guideline issued by the Royal Australian and New Zealand College of Psychiatrists concerning sexual relationships with patients. In that guideline it is stated that sexual relationships between current and former patients and their psychiatrists are never acceptable and constitute unethical behaviour. In her report she concluded that even though the doctor socialised with Patient A prior to therapy, the fact of therapy brought about a change in their relationship and the doctor should have been aware of his ethical obligations.

22 In a report dated 20 May 2009 Dr Stevenson stated that it was inappropriate for Dr Taylor to continue to write prescriptions for Mrs Taylor during their personal and sexual relationship. Dr Stevenson states that apart from the departure from guidelines, such prescribing blurred the boundaries between his role as a psychiatrist and as her partner and implied a continuing professional relationship despite the fact that the doctor had said that he had ceased a professional relationship with Ms Taylor prior to their personal relationship.

23 The Tribunal considers that the conduct of the doctor has shown by proof of particular I amounts to unsatisfactory professional conduct of a sufficiently serious nature to justify suspension of the doctor from practicing medicine or removal of the doctor’s name from the register. As noted in paragraph 2 above, the doctor is at present not registered to practice medicine and does not seek registration. The Tribunal determines that the doctor be suspended from practicing medicine until the expiration of three years from the date of this determination.

24 The Tribunal considers that the proof of particular II shows that the doctor is guilty of unsatisfactory professional conduct but notes that Dr Stevenson does not find that the treatment by way of the medication prescribed by the doctor was inappropriate and in view of the suspension order of the Tribunal makes no further order in relation to such unsatisfactory professional conduct.

25 The Tribunal is not satisfied that particulars III and IV have been proved to the required standard. The Tribunal notes that when the patient attended at Royal North Shore Hospital in July 2006 she stated according to the hospital notes that the doctor told her to find a new psychiatrist because the nature of their relationship had changed. The doctor may not have followed up on his advice that the patient seek the services of a new psychiatrist, but in the circumstances in which the relationship ended it may have been prudent not to take any such action.

26 The Tribunal has taken into account the nature of the unethical conduct of the doctor in determining the appropriate prohibition order sought by the HCCC. The order sought by the complainant is:-

That Dr Taylor be prohibited from providing any health services involving counselling, life or executive coaching, or provision of mental health services within the meaning of s4 of the Health Care Complaints Act 1993.

27 Section 4 of the Health Care Complaints Act 1993 defines “health service” to include the following services, whether provided as public or private services

a) medical, hospital and nursing services,

b) dental services,

c) mental health services,

d) pharmaceutical services,

e) ambulance services,

f) community health services,

g) health education services,

h) welfare services necessary to implement any services referred to in paragraphs (a)-(g),

i) services provided by podiatrists, chiropractors, osteopaths, optometrists, physiotherapists, psychologists and optical dispensers,

j) services provided by dietitians, masseurs, naturopaths, acupuncturists, occupational therapists, speech therapists, audiologists, audiometrists and radiographers,

k) services provided in other alternative health care fields,

k1) forensic pathology services,

l) a service prescribed by the regulation as a health service for the purposes of this Act.

28 In his statement of 15 January 2010 the doctor has stated that he accepts that it is unacceptable conduct by a psychiatrist or any medical professional to enter into a close personal relationship with a patient or former patient. He states that by March 2007 he came to appreciate that his conduct was quite inappropriate and that he had made a very serious error of judgment in entering into a personal relationship with Patient A. He further states that he ceased seeing patients as from 31 August 2008 and having received advice that he should not undertake any other kind of medical or psychological counselling work, he sought out some form of training and career development that would be appropriate.

29 The doctor had over a period of time been involved with sports coaching and made enquiries into broadening his coaching work to the field of executive coaching. In November 2008 he enrolled for a course in executive coaching conducted at Sydney University with a view of obtaining what he referred to as a professional development certificate in executive coaching. The doctor obtained his certificate and has set up business under the name of Work Fit Analysis.

30 The doctor states that of the students who enrolled in the executive coaching course, only 2 had a background or training in psychology or psychiatry. He has stated that there is a sharp distinction between executive coaching and psychological counselling which is evidenced in the standard forms of coaching agreements which makes it clear that therapeutic counselling will not be provided by the coach. The doctor attached to his statement extracts from course materials setting out the definition of coaching which clearly states that the coach facilitates enhancement of performance and personal growth of other individuals. Also attached were materials setting out the distinction between coaching and counselling. In considering coaching as compared to counselling/therapy it is stated that counselling/therapy tends to look for causes of the problems whilst coaching emphasises new competencies. It is also stated that counselling/therapy tends to be reactive whilst coaching is proactive.

31 Section 64 of the Medical Practice Act states that the Tribunal may by order, suspend the person from practicing medicine for a specified period if that person is guilty of professional misconduct. Subsection (2A) is as follows:

If the Tribunal makes an order under this section in respect of a person and it is satisfied that the person poses a substantial risk to the heath of member of the public, it may by order (a “prohibition order”) do any one or more of the following:

a. Prohibit the person from providing health services or specified health services for the period specified in the order or permanently,

b. Place such conditions as the Tribunal thinks appropriate on the provision of health services or specified health services by the person for the period specified in the order or permanently.

32 The HCCC has submitted that in facilitating enhancement of performance and personal growth of other individuals, there is a risk that the doctor is creating in a different context a relationship of trust and confidence in which persons suffering from stress disorders could seek his advice and this could lead the doctor to engage in unethical conduct of the type particularised in the Notice of Complaint.

33 The doctor submits that no prohibition order be imposed by the Tribunal. He states that he is not providing any form of counselling, therapy or treatment to any person with a diagnosis of a psychological disorder, and if in the conducting of his executive coaching he were to encounter a person who appeared to be suffering such a disorder he would suggest that the person be referred to a psychologist or psychiatrist and would not attempt to provide such treatment himself.

34 Subsection (2A) of s64 of the Medical Practice Act provides that the Tribunal may make a prohibition order if it is satisfied that “the person poses a substantial risk to the health of members of the public”. The Australian Concise Oxford Dictionary defines “substantial” to mean “having substance; real”. “Risk” is defined to mean “a chance or possibility of… adverse consequences (a health risk)”.

35 Carswell’s Words and Phrases, an American Legal Dictionary, describes the phrase “substantial risk” as meaning “real and apparent on the evidence presented… not a risk that is without substance, or which is fanciful or speculative”.

36 The complainant in its submissions has relied on certain articles which are exhibit C. One of the articles headed “Jim Taylor Work Fit Analysis” states that executive coaching is a predicable response to the problems managers face in an increasingly complex and changeable world and that the respondent’s background in psychiatry gives him a particular advantage when “dealing with more difficult interpersonal and individual issues as they relate to the workplace”. It is also stated in the article that specific training in executive coaching adds to the respondent’s clinical and personal experience. The complainant submits that such a statement, taken into account with other statements in the marketing of the business Work Fit Analysis by Niche Marketing, show that there is a risk the respondent in relying on his past clinical experience in psychiatry will provide occupational therapy of a type which comes within the definition of a health service under s4 of the Health Care Complaints Act .

37 The prohibition order sought by the complainant is in wide terms. Executive coaching could be considered as occupational therapy and thereby a health service within the meaning of the Health Care Complaint Act . The Tribunal considers that the prohibition order sought by the complainant would cover a wide variety of occupations within the modern setting of the provision of health care. The terms of the prohibition order as sought would prevent the respondent from carrying out his present activities as an executive coach and would seriously affect his ability to earn a livelihood. In view of the serious consequences to the respondent of any prohibition order, the Tribunal considers that it is required to carefully evaluate the evidence for it to be comfortably satisfied that the respondent poses a substantial risk to the health of members of the public in carrying out his activities.

38 The Tribunal is required to be satisfied that the respondent in fact poses a substantial risk to the health of members of the public in carrying out his activities. The Tribunal considers that the risk identified by the complainant (namely that of creating in a different context a relationship of trust and confidence in which persons suffering from stress disorders could lead the respondent to engage in unethical conduct of the type particularised in the Notice of Complaint) is speculative. The word “could” in the submission shows the speculative nature of the risk identified. The Tribunal considers that it would have to be satisfied that the respondent would engage in unethical conduct of the type particularised in the Notice of Complaint.

39 The complainant submits that the Tribunal could not accept the statement of Dr Taylor that he would refer any person he encountered who he considered might be suffering from a psychological disorder to a psychiatrist or psychologist and that there is a risk that he would provide counselling or therapy of a type covered by s4 of the Health Care Complaints Act .

40 The Tribunal does not consider that the conduct of the doctor as particularised in particular I of the Notice of Complaint was predatory in nature. The Tribunal has also taken into account that the doctor did suggest to Patient A that she seek the services of another psychiatrist or psychologist once the relationship changed. Further, the doctor has also stated that when he undertook the executive coaching course conducted at Sydney University the lecturers emphasised that therapeutic counselling was not to be undertaken. He further stated that he had received advice he was not to undertake other kinds of medical or psychological counselling work and acting on that advice he sought out a form of training and career development that would be appropriate.

41 The Tribunal accepts the statement of Dr Taylor that if in the course of his activities he was to encounter a person who appeared to him to be suffering from a psychological disorder, he would suggest that the person be referred to a psychologist or psychiatrist, and that he would not attempt to provide treatment himself to any such person.

42 Dr Edgar Freed, who has been treating the respondent for depression, in a report dated 22 February 2010 states that the activities of the type in which the respondent is engaged do not involve “the dynamic of the individual psychotherapeutic treatment process”.

43 The Tribunal is not satisfied that the respondent poses a real risk of substance to the health of members of the public in carrying out his activities as an executive coach. The Tribunal makes no prohibition order pursuant to subsection 2A of the s62 of the Medical Practice Act .

ORDERS

1) The Tribunal orders that the respondent is suspended from the practice of medicine and is not to apply for registration as a medical practitioner until the expiration of three (3) years from the date of this determination.

2) The Tribunal orders that the respondent pay half the costs of the complainant.

Dated: 11 June 2010

Judge A.F. Puckeridge QC Dr Donald Child

Deputy Chairperson Member

Dr Peter Tucker Ms Jennifer Houen

Member Member

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