Health Care Complaints Commission v Dr A
[2012] NSWMT 11
•22 June 2012
Medical Tribunal
New South Wales
Medium Neutral Citation: Health Care Complaints Commission v Dr A [2012] NSWMT 11 Hearing dates: 30 April 2012; 1, 2 May 2012 Decision date: 22 June 2012 Before: Kavanagh J; Dr M Higgins; Dr M Diamond; Ms D Robinson Decision: 1.The doctor has pleaded guilty and was convicted of six offences of indecent assault on a male. Complaint One is sustained.
2.The Complaints Two and Three are dismissed.
3.Complaint Four is dismissed. The Tribunal finds the doctor is a suitable person to hold a practitioner's registration but with conditions attached to his practitioner certification (see Annexure A), the purpose of which is to provide the doctor with professional support in the conduct of his medical practice within an isolated community.
4.The respondent shall pay the complainant's costs.
Catchwords: UNSATISFACTORY PROFESSIONAL CONDUCT, PROFESSIONAL MISCONDUCT - Complaint One admitted - Criminal convictions - no re-offence after 33 years - Complaints Two and Three: no offence related to the practice of medicine in the circumstance therefore no finding of unsatisfactory professional conduct or professional misconduct - offences some 13 years before qualification as a medical practitioner and eight years before doctor became medical student - unblemished conduct in practice of medicine since qualification - the Tribunal rejects the doctor engaged in improper conduct relating to the practice of medicine - Complaint Four: doctor not found to be unsuitable to practice medicine - conditions to practicing certificate attached in the public interest - costs Legislation Cited: Crimes Act 1900
Health Care Complaints Act 1993
Health Practitioner Regulation National Law (NSW) No 86a
Medical Practice Act 1992Cases Cited: Childs v Walton (unreported, CA 4025/90, 13 November 1990)
HCCC v Dr Alex Simring [2010] NSWMT 7
HCCC v Wingate [2007] NSWCA 326
NSW Bar Association v Cummins [2001] NSWCA 284
Re Dr Richard Wingate [2007] NSWMT 2
Roylance v The General Medical Council [1999] UKPC 16Category: Principal judgment Parties: Health Care Complaints Commission (Complainant)
Dr A (Respondent)Representation: P Dwyer of counsel (Complainant)
M Lynch of counsel (Respondent)
Health Care Complaints Commission (Complainant)
Browns, Legal & Consulting (Respondent)
File Number(s): MT40022 of 2011
Judgment
The Health Care Complaints Commission ("the Complainant") brings before the Tribunal four complaints brought following consultation with the New South Wales Medical Board (now known as the Medical Council of New South Wales) ("the Council") in accordance with ss 39(2) and 90B(3) of the Health Care Complaints Act 1993 and s 145 of the Health Practitioner Regulation National Law (NSW) No 86a ("the National Law") against Dr A ("the respondent") being a medical practitioner registered under the National Law.
The first complaint alleges, in the following terms, that the doctor:
COMPLAINT ONE
Has been convicted of offences within the meaning of s144 of the National Law:
Particulars
1.On 18 August, 2010 at Penrith in the state of New South Wales, the practitioner pleaded guilty and was convicted of six criminal offences namely:
a.Indecent assault on a male pursuant to s81 Crimes Act 1900 on 1 January 1976 at Springwood in the state of New South Wales.
b.Indecent assault on a male pursuant to s81 Crimes Act 1900 on 1 January 1976 at Springwood in the state of New South Wales.
c.Indecent assault on a male pursuant to s81 Crimes Act 1900 on 1 January 1976 at Springwood in the state of New South Wales.
d.Indecent assault on a male pursuant to s81 Crimes Act 1900 on 1 January 1976 at Springwood in the state of New South Wales.
e.Indecent assault on a male pursuant to s81 Crimes Act 1900 on 1 January 1976 at Springwood in the state of New South Wales.
f.Indecent assault on a male pursuant to s81 Crimes Act 1900 on 1 January 1976 at Springwood in the state of New South Wales.
The second complaint alleges, in the following terms, that the respondent:
COMPLAINT TWO
Has been guilty of unsatisfactory professional conduct within the meaning of s139B of the National Law in that he has:
i)Demonstrated that the knowledge, skill or judgement 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;
Particulars
1.On 18 August, 2010 at Penrith in the state of New South Wales, the practitioner pleaded guilty and was convicted of six criminal offences namely:
a.Indecent assault on a male pursuant to s81 Crimes Act 1900 on 1 January 1976 at Springwood in the state of New South Wales.
b.Indecent assault on a male pursuant to s81 Crimes Act 1900 on 1 January 1976 at Springwood in the state of New South Wales.
c.Indecent assault on a male pursuant to s81 Crimes Act 1900 on 1 January 1976 at Springwood in the state of New South Wales.
d.Indecent assault on a male pursuant to s81 Crimes Act 1900 on 1 January 1976 at Springwood in the state of New South Wales.
e.Indecent assault on a male pursuant to s81 Crimes Act 1900 on 1 January 1976 at Springwood in the state of New South Wales.
f.Indecent assault on a male pursuant to s81 Crimes Act 1900 on 1 January 1976 at Springwood in the state of New South Wales.
The third complaint alleges, in the following terms, that the respondent:
COMPLAINT THREE
Has been guilty of professional misconduct within the meaning of s139E of the National Law in that he has:
i)Demonstrated that the knowledge, skill or judgement 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
Particulars
1.On 18 August, 2010 at Penrith in the state of New South Wales, the practitioner pleaded guilty and was convicted of six criminal offences namely:
a.Indecent assault on a male pursuant to s81 Crimes Act 1900 on 1 January 1976 at Springwood in the state of New South Wales.
b.Indecent assault on a male pursuant to s81 Crimes Act 1900 on 1 January 1976 at Springwood in the state of New South Wales.
c.Indecent assault on a male pursuant to s81 Crimes Act 1900 on 1 January 1976 at Springwood in the state of New South Wales.
d.Indecent assault on a male pursuant to s81 Crimes Act 1900 on 1 January 1976 at Springwood in the state of New South Wales.
e.Indecent assault on a male pursuant to s81 Crimes Act 1900 on 1 January 1976 at Springwood in the state of New South Wales.
f.Indecent assault on a male pursuant to s81 Crimes Act 1900 on 1 January 1976 at Springwood in the state of New South Wales.
The fourth complaint alleges, in the following terms, that the respondent:
COMPLAINT FOUR
Is (otherwise) not a suitable person to hold registration as a medical practitioner within the meaning of s144 of the National Law.
Particulars
1.On 18 August, 2010 at Penrith in the state of New South Wales, the practitioner pleaded guilty and was convicted of six criminal offences namely:
a.Indecent assault on a male pursuant to s81 Crimes Act 1900 on 1 January 1976 at Springwood in the state of New South Wales.
b.Indecent assault on a male pursuant to s81 Crimes Act 1900 on 1 January 1976 at Springwood in the state of New South Wales.
c.Indecent assault on a male pursuant to s81 Crimes Act 1900 on 1 January 1976 at Springwood in the state of New South Wales.
d.Indecent assault on a male pursuant to s81 Crimes Act 1900 on 1 January 1976 at Springwood in the state of New South Wales.
e.Indecent assault on a male pursuant to s81 Crimes Act 1900 on 1 January 1976 at Springwood in the state of New South Wales.
f.Indecent assault on a male pursuant to s81 Crimes Act 1900 on 1 January 1976 at Springwood in the state of New South Wales.
It is necessary, in order to understand the way these complaints have been brought by the HCCC and how they have been particularised, to have reference to s 144 of the Health Practitioner Regulation National Law (NSW) No 86a:
144 Grounds for complaint about registered health practitioner [NSW]
The following complaints may be made about a registered health practitioner-
(a) Criminal conviction or criminal findingA complaint the practitioner has, either in this jurisdiction or elsewhere, been convicted of or made the subject of a criminal finding for an offence.
(b) Unsatisfactory professional conduct or professional misconductA complaint the practitioner has been guilty of unsatisfactory professional conduct or professional misconduct.
(c) Lack of competenceA complaint the practitioner is not competent to practise the practitioner's profession.
(d) ImpairmentA complaint the practitioner has an impairment.
(e) Suitable personA complaint the practitioner is otherwise not a suitable person to hold registration in the practitioner's profession.
Complaint One is a recitation of criminal convictions entered against the doctor in the District Court of NSW. This complaint was brought in accordance with the provision of s 144(a) of the National Law.
Complaint One is admitted.
Complaint Two and Complaint Three are complaints that assert under s 144(b), given those criminal convictions, the doctor has been guilty of unsatisfactory conduct (see s 139B definition) or professional misconduct (see s 139E definition). The doctor contends, as he was not a medical practitioner at the time of the offences, it cannot be held that the complaints are "relevant to the practice of medicine" (s 139) and Complaints Two and Three therefore cannot be established.
Complaint Four contends the doctor, given the convictions, is otherwise not a suitable person to hold registration as a medical practitioner under s 144(e). The doctor contends, given the particular circumstance, the Tribunal would be satisfied he is a suitable person to practice medicine. If the Tribunal so found and given he has admitted six assault charges over a period of time, given the priority under the Act to the protection of the public, the doctor agrees that conditions be placed upon his practice of medicine to protect the public.
Background
The circumstances surrounding the particularised criminal convictions came to light in 2007. At the time of the offences the victims were aged 13 years or 14 years and the practitioner was not then a doctor. He was about 26 years of age and not in medical school. The doctor and the two victims were brothers; he the biological son of the parents; the two brothers were adopted. After the original investigation took place and he made admissions, the doctor then volunteered that a similar allegation could be made upon the second victim (who was deceased). Once the allegation was belatedly brought to the attention of the authorities by the brother's wife and the charges were laid, the doctor pleaded guilty to the offences at the first opportunity. It was the doctor who, in admitting the reported offence, revealed the conduct/assault was also on his deceased brother. The offences are outlined in Complaint One.
The District Court, in sentencing, commented the offences, while establishing a breach of trust, were at the lower end of the scale of offences of that nature notwithstanding the seriousness of each offence.
Evidence established the first victim had, through life, been given considerable support including financial support by the doctor. When that financial support ceased the allegation was brought to the attention of the authorities. The seriousness of each conviction is acknowledged by the doctor and his remorse and contrition has been reflected in his early plea and co-operation with authorities. He has continually sought to support the brother aware of the damage caused.
Dr A spent his childhood in Sydney and the Blue Mountains. His home life was chaotic. The home was occupied by his parents and seven natural siblings and four adopted siblings. Both parents had mental health issues: his father also had episodic heavy drinking with accompanying violence. The doctor, for approximately four years, studied for the priesthood and then worked for the Police Service and Ambulance Service before, in 1983, enrolling at University in the school of Architecture. He then transferred to Medicine the following year. He graduated in 1989 and served his hospital residency. He practised as a General Practitioner in the Blue Mountains. He married, had a family then moved his own family, for health reasons, to a northern districts inland community where he set up a general practice. He has practised medicine as a General Practitioner for some 23 years without complaint.
After charges were laid and he pleaded guilty and was convicted in August 2010, the doctor published an "announcement" of that conviction to the local community. The Medical Council was notified and it was determined to refer the issue to the Medical Tribunal. The doctor has had conditions placed on his practice which require, for any consultations with children, that the child be accompanied by a chaperone. The doctor had already initiated this procedure once charges were laid and the Medical Council endorsed that decision by way of making it a condition on his Practising Certificate.
The doctor, in his consideration as to his past and present sexuality says:
... From my own perspective I consider that as a 26 year old in 1976 I was a very immature and inexperienced person, with confused feelings about sexuality. In saying this I do not seek to in any way minimise the seriousness of the offences I committed at that time. However it is the case that my maturity and my feelings changed very significantly over the following years.
21. The process of obtaining enough financial independence to study full time, to then re-sit the HSC and then embark on university studies involved a major personal struggle. A turning point was when I resolved in about 1979 to cease drinking to excess. I then became single-minded about doing well at university and trying to make something of my life. By the time I qualified to commence practice as a doctor at the age of 38 I had met my wife (to whom I am still married) and I had no interest in any other kind of sexual relationship or activity.
Dr Jeremy O'Dea, Consultant Forensic Psychiatrist, prepared a report for the sentencing hearing following the doctor entering the plea on the criminal charges. The doctor opined:
37.... it would also seem prudent and reasonable that Dr [A] take the opportunity to explore in further detail with a suitably qualified and experienced psychiatrist or psychologist, his sexuality in general and his history of homosexual paedophilia in particular, with the aim of assisting him to continue to manage these issues in a more formal setting. Formal reference to his history of alcohol abuse, depression and OCD style symptoms of the past should be a part of this process.
38.This treatment option could be organised and implemented in the community without placing the community at undue risk.
Dr Anthony Samuels, Consultant Psychiatrist, gave an opinion to the Medical Council on 4 May 2011. He opined:
I would see his risk of offending in the context of his medical practice as being very low particularly if he is chaperoned. I think he does very much value his life and lifestyle in northern NSW and his ability to provide and to work as a medical practitioner and I feel reasonably confident that he would not take any steps that would jeopardise his situation.
I would see his conditions at the present time as being entirely appropriate and I think he should have continuing regular contact with his treating psychiatrist. I think there are considerable psychiatric and psychological issues that need to be explored. He is not currently psychiatrically ill and I would see no indication for any form of antidepressant, anti-anxiety or antipsychotic medication but, certainly, if he began to explore issues in depth from his childhood; his own abuse or the events that occurred with his brothers, there is a high likelihood that he could develop a marked emotional response to that. I think it would be appropriate for him to continue to see the Council nominated psychiatrist on at least a 6 monthly basis, as well as yet another safeguard.
He further opined on 2 November 2011:
1.Psychiatric Issues
As far as I can ascertain Dr A is very stable in terms of his mood state, there is no evidence of depression or anxiety, no evidence of obsessive compulsive phenomena and I can find no evidence of psychotic features. He assures me that he has no deviant sexual fantasisation. He also feels that any homosexual inclinations he had in the past are no longer. He certainly endeavoured to express remorse in relation to what happened in the context of my interview today.
My diagnostic perspective is unchanged. I accept what he says in terms of the paedophilic sexual fantasies no longer being present but there remains at least a theoretical risk that, under particular conditions of stress or adversity, such thoughts or feelings could re-emerge. I nevertheless continue to regard him as being at an extremely low risk of repeating his offences particularly in the context of his medical practice at the present time.
2.Recommendations
I would see his conditions as being appropriate and I would see them as needing to remain in place for the foreseeable future.
The respondent doctor was asked to comment as to Dr Samuel's opinion:
Q.He goes on to say he nevertheless regards you as being at extremely low risk of reoffending. The conditions you describe of your work, because of your level of commitment and concern for your patients, appear to involve a significant level of stress. You start early in the morning, finish late at night and you haven't taken a holiday in 3 years. Do you perceive there's a risk if you keep operating like that, that's a high pressure stressful environment?
The doctor answered:
A.I have my own ways of adjusting to that. I'd love to get a locum, it would be nice to have a break. If things are getting busy or I've been out at night, I'll ask the girls, "Don't take any bookings for this particular afternoon, we need a bit of time off", and we poke away in the garden or go for a drive or something. Occasionally I'll take the phone off the hook for an hour. It's just a - I don't like taking it out for too long because you never know what's going to happen. There are mechanisms to take control of the situation.
As to his risk of re-offending, the doctor was directly asked:
Q.I want to ask you about the risk of reoffending you've already been asked about. Mr O'Dea as you understand, categorised your risk of reoffending as low?
A.Yes.
Q.Dr Samuels categorised it as low in one part, and extremely low somewhere else?
A.Yes.
Q.What do you say your risk of reoffending is?
A.I won't reoffend. I will not reoffend. It will not happen.
The doctor assures the Tribunal he has not, for over 30 years, nor will he ever re-offend.
Further, in revealing the nature of his practice, the doctor explained he services a large aboriginal community and, as well, a needy local community. He works very long hours. He ensures the conditions, self imposed but endorsed by the Medical Council, are complied with. However, because of the isolation of his inland communities and the lack of public transport, sometimes in emergencies (for example, home violence circumstance), mothers and children were, and still are, harbored in his home overnight on occasions, often at the instigation of his wife, a trained Veterinarian who is now a teacher. It appears, within the communities, she is empathetic and acts in a social worker capacity. Having heard explanations on this point, the Tribunal expressed its concern that this, perhaps well intentioned harboring, even where there is a remote element to the communities he services, causes the doctor to transgress over the boundaries necessary to maintain a professional and clinical relationship with his patients.
Another issue arose from the doctor's description of his practice. He was asked:
Q.From a personal point of view in terms of having other things in your life, what do you say for that?
A.I've talked with Richardson about this tendency to make medicine the be-all and end-all of life and I acknowledge his concerns about that. I do enjoy gardening, I try to get out as much as I can. I love my family and enjoy my family as much as I can.
As to his personal life, the doctor revealed his wife is now teaching and loves the work. The children are growing up and he intends to and accepts the advice that he should "slow down".
Because of the issues that arose as to the "boundaries" required in the professional conduct of his practice and given the workload the doctor described (including his long hours of clinical consultation each week), the Tribunal members asked the doctor about his continuing medical education. The doctor replied:
A.That can always be a difficulty, getting one's brownie points to fulfil the requirements for the triennium to keep one's vocational registration etcetera going. Though I have a number of options, I occasionally attend. It's difficult to do that, but I manage each time to do so.
The doctor uses registered nurses in his practice. He does not use "nurse practitioners" even though they would assist him in his workload and also attract extra payments to his practice. He revealed he is not an accredited practitioner. When asked why, the doctor stated he thought accreditation was "balderdash".
The doctor has an arrangement with the Pharmaceutical Board to dispense some medications from his practice. When questioned by the Tribunal, it was revealed:
A. I spend most the majority of my patients I've managed over time, to be able to convince people to make a relationship with the chemist when they are in town. It has really helped, the Close the Gap situation has really helped with that because they don't have to find money. It may not seem a great deal amount of money, but if you're on the pension or supporting mother's benefit, and you're diabetic and you've got four or five or six medications at $5 or $6 a pop, it mounts up to substantial money; $30 to $40 a go, and you don't have it.
and:
A. The arrangements with this is that the Pharmaceutical Services Board, if I write a script for something and send that in, it goes off to the ether somewhere, and you send it off to Medicare, Sydney 2000, Post Office box somewhere, and back it comes eventually some months later.
Q. I'm suggesting that you fax a script to the local pharmacy and that pharmacy sends out the prescription to you, back to the patient. Meantime you've given enough medication short-term to tide them over. I'm interested in terms of your financial outlay. It's just a huge outlay, I would have imagined for you to be supporting the local population?
A. It does mount up and my wife has raised the point it has cost us $200,000 at least, over the years. It's one of those things one does. It would be a little complicated I think, that arrangement, with the - it will come back with - the functional patients. I'll bear that in mind. ...
Since the federal government introduced the "Closing the Gap" scheme, aboriginal people are able to obtain their PBS prescription medication for no fee. The doctor appreciated the issue that he was giving medication he had bought to patients who could obtain it for no fee. To support the community in this way is not only a financial burden for the doctor but has little or no financial benefit for patients. The Tribunal notes the community has access to a pharmacy within an hour's drive. There are few medical conditions which cannot wait an hour's drive for a prescription to be dispensed and treatment initiated.
The doctor gave evidence he was in good health. Once a week he visits the North Coast and has a close friend, a Medical Practitioner, with whom he can discuss professional and personal issues. He values this friendship, respects and generally complies with the advice given.
After the doctor gave his evidence and faced rigorous cross-examination, counsel for the HCCC in addresses conceded:
... there are a significant number of mitigating factors put forward on behalf of the respondent during the sentencing process and they are accepted. First the expression of genuine remorse and I was keen to clarify that given the comments of Doctor Samuels in the report of May 2011 which were concerning at first blush but they do seem to have been clarified that there is a significant level of remorse expressed by the respondent and certainly a very significant period of demonstrated rehabilitation and the Commission accepts, your Honour, that the work of the respondent is very important work and that he seems to display a very significant level of devotion and care to the particular community that he serves.
Given the facts recited in Complaint One are agreed, Complaint One is established.
The first issue raised is whether, in the circumstances, the criminal convictions lay the ground for a finding under s 144 the doctor is guilty of unsatisfactory professional conduct or professional misconduct as pleaded in Complaint Two and Complaint Three. Complaint Two, therefore, contends because of the convictions the doctor is guilty of unsatisfactory professional conduct under s 144(b). Complaint Three asserts that because of the convictions the doctor is guilty of professional misconduct under s 144(b). The reference in Complaint Two to s 139B is a reference to the definition of "unsatisfactory conduct". The reference in Complaint Three to s 139E is a reference to the definition of "professional misconduct".
Counsel for the doctor contends under the provision of the Act, particularly s 139B and s 139E, the doctor is required to be a member of the profession at the time of the offences. It is pleaded that "the doctor engaged in improper or unethical conduct relating to the practice of medicine". Section 139B of the Health Practitioner Regulation National Law (NSW) No 86a relevantly states:
139B Meaning of "unsatisfactory professional conduct" of registered health practitioner generally [NSW]
(1) Unsatisfactory professional conduct of a registered health practitioner includes each of the following-
(a) Conduct significantly below reasonable standardConduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of the practitioner's profession is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience.
(b) Contravention of this Law or regulationsA contravention by the practitioner (whether by act or omission) of a provision of this Law, or the regulations under this Law or under the NSW regulations, whether or not the practitioner has been prosecuted for or convicted of an offence in respect of the contravention.
The definition under s 139B is applicable to a reading of Complaint Two.
The pleading as to the Complaint Three also requires a finding the doctor engaged in improper or unethical conduct relating to the practice of medicine within the meaning of s 139E:
139E Meaning of "professional misconduct" [NSW]
For the purposes of this Law, professional misconduct of a registered health practitioner means-
(a) unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; or
(b) more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration.
Mr Lynch, counsel for the doctor, contends the 1976 conduct was, as pleaded, "plainly improper" but he submits it cannot be characterised as unethical because the doctor was then not even a medical student and not bound by a code of ethics. The offending improper conduct should, it was contended, not be confused with the consequence of it. The offences were in 1976 and the consequences, as relied upon by the HCCC, are in 2010.
Applicable Principles
In many authorities, especially in Re Dr Richard Wingate [2007] NSWMT 2 and in HCCC v Dr Alex Simring [2010] NSWMT 7, the Deputy Presidents of each Tribunal gave comprehensive consideration to the various authorities where the phrase "relating to the practice of medicine" has been considered and the application of the relevant principles to particular circumstances.
In Wingate the practitioner had been convicted of possession of child pornography. The doctor in one complaint was alleged to have engaged in improper or unethical conduct "relating to the practice of medicine". The Tribunal was urged to find that the doctor was guilty of professional misconduct. The Tribunal rejected the submission finding that the conduct was neither in nor relating to the practice of medicine and so did not fall within any part of s 36 of the then Act. The matter went on appeal: HCCC v Wingate [2007] NSWCA 326, but not on the interpretation of the phrase "relating to the practice of medicine".
In Simring the discussion by Basten JA on the appeal in Wingate was considered. Basten JA noted that on being convicted of the offence the practitioner became a "prohibited person" and was thus affected by the various laws regulating the conduct of prohibited persons. In his analysis of the effect of the various laws on Dr Wingate, Basten JA found two conclusions to flow: there is a presumption that a prohibited person "poses a risk to the safety of children" and that the very extensive definition of "child-related employment" involves the provision of personal services to children. He concluded:
[72]... Accordingly, there is presumed to be a relationship between conduct constituting an offence of a relevant kind and the provision of professional services in health, education, transport, child protection, recreation and "other support services".
Although not necessary to the determination of the appeal in Wingate, his Honour said:
[74]One consequence which might have followed from that understanding was that the conduct resulting in the conviction should have been treated as improper conduct "relating to" the practice of medicine, so as to constitute unsatisfactory professional conduct within s 36(1)(m) of the Medical Practice Act. That might have resulted in the first complaint being upheld. ...
In Simring, the Tribunal then concluded:
75 The Tribunal is of the view that the conduct of the respondent in accessing and possessing child pornography, while done in his private life, by reason of its seriousness and reprehensible nature demonstrates an absence of qualities compatible with professional practice.76 The Tribunal further finds that the terms and effect of the legislative conditions by which the respondent is now bound place restrictions on his practice of medicine and is therefore conduct "relating to the practice of medicine".77 The Tribunal finds that the nature of the offence and the consequences of convictions is conduct that falls within s36(1)(m) of the Act....
79 The Tribunal finds that this conduct is unsatisfactory professional conduct of such a seriousness that it amounts to professional misconduct and finds this complaint made out.
In both Simring and Wingate the offences, while of a private nature, were committed while each doctor was practicing medicine and complaints raised ethical issues related to a practitioner.
Counsel for Dr A urges upon the Tribunal that, in the circumstance, there was no offence related to the practice of medicine and therefore no issue arises that requires a consideration as to whether the conduct was unsatisfactory professional conduct or professional misconduct. Rather, it is submitted the Tribunal simply deals with the effect of the conviction as recited in Complaint One.
In Roylance v The General Medical Council [1999] UKPC 16, the court considered the point at which personal behaviour can be held to amount to professional misconduct. Lord Parker CJ observed:
"But if conduct, though reprehensible in anyone is in the case of the professional man so much more reprehensible as to be defined as disgraceful, it may, depending on the circumstances amount to conduct disgraceful of him in a professional respect in the sense that it tends to bring disgrace on the profession which he practises. It seems to me, although I do not put this forward in any sense as a definition, that the conception of conduct which is disgraceful to a man in his professional capacity is conduct disgraceful to him as reflecting on his profession ..."
In Childs v Walton (unreported, CA 4025/90, 13 November 1990), the court considered the term "in the practice of medicine". Samuels JA said that the phrase contemplates:
. . . conduct by a practitioner that demonstrates his or her lack of one or more qualities indispensable to the practice of medicine.
Spigelman CJ in NSW Bar Association v Cummins [2001] NSWCA 284 at [56] discussed the extent to which personal conduct could be said to reflect on professional conduct:
There is authority in favour of extending the terminology "professional misconduct" to acts not occurring directly in the course of professional practice. That is not to say that any form of personal conduct may be regarded as professional misconduct. The authorities appear to me to suggest two kinds of relationships that justify applying the terminology in this broader way. First, acts may be sufficiently closely connected with actual practice, albeit not occurring in the course of such practice. Secondly, conduct outside the course of practice may manifest the presence or absence of qualities which are incompatible with, or essential for, the conduct of practice. In this second case, the terminology of "professional misconduct" overlaps with and, usually it is not necessary to distinguish it from, the terminology of "good fame and character" or "fit and proper person".
Given the effect of the above reasoning, the question becomes whether the conduct, as admitted, was closely connected with the doctor's practise of medicine and did such admitted acts reveal qualities in the doctor which qualities are incompatible with the conduct of a medical practice?
This poses a difficult consideration given the facts in this matter. As Basten JA said, related statutory provision presumes there is a relationship between such conduct and the delivery of a professional service, in this case medical services (to children).
However, the facts further establish the doctor's conduct occurred some 33 years ago, eight years before he enrolled in the study of medicine and some 13 years before he qualified as a medical practitioner. Through his own personal development and self-discipline in the 23 years since he graduated he has, in the practise of medicine, had no complaints brought against him. He has chosen a difficult professional path in his clinical practice and all the evidence from the Psychiatrists and community members is he is a highly skilled and competent professional with clinical knowledge and skill and great empathy.
The doctor in evidence revealed his sensitivity and personal commitment. While some elements in the nature of his practice, not pleaded as particulars of a complaint, have excited the interest of the Tribunal, Dr A has revealed no quality of character which would be incompatible with the practice of medicine. In the particular circumstances of this case, in the context of the unblemished practise of medicine since qualification over a period of 23 years, the Tribunal rejects that it has been established that the doctor engaged in improper conduct relating to the practise of medicine nor, therefore, professional misconduct.
Further, even applying the test enunciated in Wingate (and as applied in Simring), while the nature of the conduct was most serious and disgraceful of him personally, but balancing his unblemished reputation post the conduct with his proven clinical skills and qualities as a most caring General Practitioner, the Tribunal finds there has not been revealed any quality of character which could attract a finding the doctor is not suitable to practise medicine.
Complaints Two, Three and Four are, therefore, dismissed.
However, the Complaint One is admitted. The Tribunal, in the application of its protective jurisdiction, must ensure the trust and confidence of the public and not just that minimum standards of conduct are maintained. The medical profession aspires to the highest of ethical standards.
In that context, the doctor has sought psychiatric support. Further, he has publicly revealed his circumstances and put in place a chaperone arrangement during his clinical consultations with children. The chaperone arrangement has been endorsed by the Medical Council. The Tribunal is of the view such conditions should be continued to give assurance to the public, if there was a perception of concern or expressed concern based upon his long past conduct, of the absolute ethical manner in which the doctor conducts a skilled practice.
Further, given the doctor revealed in his evidence some elements as to the nature of his practice, perhaps reflecting his isolation and his years of practise, the Tribunal is of the view the doctor should be given further support and an opportunity for him to be exposed to the various options available to plan and manage a general practice. Accordingly, there will be a condition for the doctor to seek further professional development. They are agreed to by both parties. The condition regarding the mentor is formalised and reflective of the doctor's already informal relationship with another practitioner in the district who clearly provides personal and professional support.
The evidence revealed the doctor works long hours including home visits. It is difficult to put a condition on the doctor's hours of work until the doctor determines to access the valuable skills of a nurse practitioner. However, were the doctor to use such nurses, he could share the after hours/on-call duties with such a nurse. The doctor should work towards working for an eight hour day.
There will be a condition for the doctor to continue to seek psychiatric consultation and support. This condition reflects the medical expert assessments placed before the Tribunal. The condition related to the pursuit of General Practitioner accreditation is to ensure that the doctor is reminded of the necessity for the rigorous application of professional boundaries and to ensure he is exposed to modern developments in the practise of medicine. All conditions are aimed at supporting and assisting the doctor in his clinical practice.
Orders
1.The doctor has pleaded guilty and was convicted of six offences of indecent assault on a male. Complaint One is sustained.
2.The Complaints Two and Three are dismissed.
3.Complaint Four is dismissed. The Tribunal finds the doctor is a suitable person to hold a practitioner's registration but with conditions attached to his practitioner certification (see Annexure A), the purpose of which is to provide the doctor with professional support in the conduct of his medical practice within an isolated community.
4.The respondent shall pay the complainant's costs.
Annexure A Conditions
Medical Treatment
The practitioner must:
1.Attend for treatment by a psychiatrist of his choice at a frequency to be determined by the treating Psychiatrist. The practitioner is to notify the Medical Council of NSW of the name of his treating Psychiatrist within 2 weeks and is to authorise the treating Psychiatrist to inform the Medical Council of NSW of failure to attend for treatment, termination of treatment or if there is a significant change in health status.
2.Attend for review by the Council-appointed Psychiatrist, within six months, and subsequently as directed by the Medical Council of NSW, at the Medical Council of NSW's expense.
3.Attend any Review Interview at the Medical Council of NSW, as directed by the Medical Council of NSW.
4.Authorise the Medical Council of NSW to forward copies of the Decision upon which these Conditions are based and any subsequent Council Review Interview or other reports and any other information relevant to his health and treatment, to the Council-nominated practitioners and his treating practitioners. He is to notify the Medical Council of NSW immediately of any change in treating practitioner, so that copies of the Decision may be provided to them.
5.The practitioner authorises the Medical Council of NSW to provide a copy of the Medical Tribunal Reasons for Determination, and any reports that the Medical Council of NSW considers appropriate, to any treating practitioners.
Mentoring
1.Within 21 days of the date of receipt of this Decision the practitioner is to provide for approval by the Medical Council of NSW the name and professional address of a registered medical practitioner who has agreed to act as his professional mentor. The nature and frequency of contact with the mentor is to be determined by the mentor in accordance with the Medical Council of NSW Guidelines for Mentors (Policy PCH 10). The mentor is to be provided with a copy of Policy PCH 10 and a copy of this Decision and these Orders.
a)The practitioner is to authorise the mentor to report, in an approved format, to the Medical Council of NSW every six months about the fact of contact, and to inform the Medical Council of NSW if there is any concern about his professional conduct, health or personal wellbeing.
b)The practitioner is to authorise the mentor to notify the Medical Council of NSW of any failure to attend, termination of the mentoring relationship against the advice of the mentor, or any other matter the mentor considers appropriate.
c)The practitioner will meet with the mentor for an initial period of 18 months from the date of the first consultation and thereafter for such period as the Medical Council of NSW may determine.
d)In the event that the approved mentor is no longer willing or able to continue as mentor, the practitioner is to nominate another mentor for approval by the Medical Council of NSW within 28 days of the cessation of the original mentor relationship.
e)The meetings should include discussion of Dr A's personal and professional development as a registered medical practitioner, as well as personal issues as they arise and initially the issues highlighted in this Decision.
f)In the event that the approved mentor is no longer willing or able to continue as mentor, he/she is to nominate another mentor for approval by the Medical Council of NSW within 28 days of the cessation of the original mentor relationship.
g)The practitioner is to be responsible for any costs associated with the mentoring process.
Practice conditions
1.Dr. A is not to invite patients to reside at his home nor agree to requests from his patients that they or their children reside at his home.
2.Within 60 days of the date of this order, the practitioner will use all reasonable endeavours to seek accreditation as a GP practice, with a recognised accredited organisation.
3.Within 90 days from the date of this order, the practitioner is to report to the Medical Council of NSW the steps taken by him to pursue such an application.
4.The doctor is to notify the Medical Council of NSW if he changes the address of his general practice.
Chaperone
1.The practitioner will not consult, treat, interview or examine any person under the age of 18 years, whether in his surgery rooms, hospital, nursing home or house calls, unless a chaperone (an adult third person) is continuously present.
2.Prior to any such consultation, examination, treatment or interview he must inform each parent or other adult carer of each child patient of the necessity for a third person/chaperone to be present at all times.
3.The chaperone must be acceptable to the patient and may be a spouse, or other family member who is over the age of 18 years, or a guardian/carer of the patient.
4.The chaperone may not be a member of the practitioner's family. In the absence of a spouse or family member or guardian/carer of the patient, the chaperone must be a registered nurse, registered enrolled nurse or nurse practitioner.
5.While the practitioner is employed in general practice, he must:
i) notify the principal of the practice and any other practitioner who may be working on site with him of these Practice Conditions; and
ii)forward to the Medical Council of NSW within seven days of the date of receipt of these Conditions, or of commencing new employment, a copy of these Practice Conditions signed by each one of these practitioners.
iii)within seven days of the date of receipt of these Conditions, send to the Medical Council of NSW for its approval, a list of possible chaperones except in the circumstances where the chaperone is a spouse or family member of the patient. Any chaperone that is not included on this list must be notified to the Medical Council of NSW and approved by the Medical Council of NSW prior to undertaking that role. Any approval shall be in accordance with the current version of the Medical Council of NSW's protocol concerning chaperones (Policy PCH C13.3)
iv)forward to the Medical Council of NSW within seven days of the end of each calendar month a report listing all patients as described in this Condition, who have been examined/consulted, treated or interviewed by him during the calendar month, showing in respect of each patient the date of every examination and the name or names of the person or persons present throughout that examination. This report must include:
printed notation of the names of each patient and the chaperone;
contemporaneous signature of the chaperone;
date and time of each examination;
where applicable, the relationship of the chaperone to the patient.
All reports must be in the format set out in Annexure 'A' to this decision.
6.If, in the event of a medical emergency, it is not practical to obtain the services of a chaperone, a chaperone is not required; however, any such event must be notified to the Medical Council of NSW and recorded in the list of patients referred to in Condition 5(iv). A medical emergency is an event where it is not possible or reasonable to have a patient with a serious or life threatening or urgent condition seen by another medical practitioner or transferred to the nearest hospital.
7.Dr A is to authorise the exchange of information between Medicare Australia and the Medical Council of NSW where required in order to facilitate monitoring of compliance with these Conditions.
Review of conditions
The Medical Council of NSW is to be the appropriate review body in relation to these conditions.
Decision last updated: 26 June 2012
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