Health Care Complaints Commission v Dr Small
[2012] NSWMT 18
•19 July 2012
Medical Tribunal
New South Wales
Medium Neutral Citation: Health Care Complaints Commission v Dr Small [2012] NSWMT 18 Hearing dates: 18/07/2012-19/07/2012 Decision date: 19 July 2012 Before: Elkaim SC DCJ
Dr M Cox
Dr P Gordon
Ms G EttingerDecision: See paragraph 34
Catchwords: Inappropriate doctor patient relationship. Conditions to be imposed on practice. Legislation Cited: Health Practitioner Regulation National Law (NSW) Cases Cited: Briginshaw v Briginshaw (1938) 60 CLR 336
Health Care Complaints Commission v Howe [2010] NSWMT 12Category: Principal judgment Parties: Health Care Complaints Commission (Complainant)
Dr Andrew Robert Small (Respondent)Representation: E Brus (Complainant)
M Lynch (Respondent)
Health Care Complaints Commission (Complainant)
Holman Webb (Respondent)
File Number(s): 40027/11 Publication restriction: Yes
Judgment
The Tribunal has heard two complaints brought by the Health Care Complaints Commission ("HCCC") against Dr Andrew Small. The original Notice of Complaint is dated 24 August 2011. At the commencement of the hearing an Amended Notice of Complaint was filed without objection.
Complaint 1 alleges "unsatisfactory professional conduct" within the meaning of Section 139B of the Health Practitioner Regulation National Law (NSW). The particulars of the complaint concern the relationship between Dr Small and a former patient of his. Complaint 2 is based on the same particulars but alleges "professional misconduct" within the meaning of Section 139E of the National Law.
The source of the complaints is a letter from the former patient ("Patient A") dated 30 November 2009 (Exhibit A, Tab 3). Two points should be made immediately about this letter:
(a) The allegation of sexual abuse was not pressed.
(b) The complaint about the patient's notes was not pressed.
The allegations against Dr Small can be placed into two categories:
(a) An inappropriate sexual relationship with Patient A.
(b) The conduct set out in the particulars of Complaint 1 under paragraph 2. These are essentially events that flowed in consequence of the sexual relationship. They include such matters as Dr Small providing Patient A with a vacuum cleaner and a microwave, cash and free medication.
In an opening address counsel for Dr Small indicated that his client admitted Complaint 1 other than in respect of particulars 2(a), (g) and (h).
Particular 2(g) was not pressed.
In relation to Complaint 2, the complaint was admitted.
The consequence of the admissions was that the only factual allegations that remained to be proved were those in particulars 2(a) and (h).
In approaching these allegations the Tribunal was mindful that although the standard of proof is on the balance of probabilities that it should nevertheless apply the principles enunciated in Briginshaw v Briginshaw (1938) 60 CLR 336.
It is convenient to deal with particulars 2(a) and (h) immediately. The Tribunal accepts in respect of 2(a) that Dr Small's mobile number had already been provided to Patient A and in any event was on the telephone answering service at Dr Small's practice. The provision of the mobile number again after the relationship started can therefore not be found to establish the allegation of a failure to maintain proper professional boundaries.
In relation to 2(h) the Tribunal is not satisfied that the allegation has been proved. The only evidence relating to the regular provision of lunch and the driving home of Patient A came from Dr Small. He did not accept the allegation. There was no evidence to the contrary. Accordingly the allegation has not been proven.
Dr Small's background
Dr Small's background is set out in a statement he made on 22 June 2012 (Exhibit 1, Tab 1). The details include the following:
(a) Dr Small was born in Sydney in 1956.
(b) He seems to have been a lonely child sometimes subjected to bullying. He was very close to his parents and supported them through his adult life and until their respective deaths. Their assorted health and personal problems were of deep concern to him.
(c) Dr Small commenced his medical degree at the University of Sydney in 1973. He graduated with the degree MBBS in 1979.
(d) Dr Small then worked in general practice and paediatric medicine until moving to England in 1984 where he obtained a Diploma in Child Health.
(e) In 1985 Dr Small returned to general practice in Sydney. He had a 'year off' to look after his father following a serious motor accident.
(f) In 1987 Dr Small started working in general practice in Waterloo. He is still at the Waterloo Medical Centre.
(g) Dr Small married for the first time in 1989. There is one child of the marriage, now aged 18. The marriage ran into difficulties leading to a divorce in 2002.
(h) Dr Small saw Dr Rikard-Bell, a psychiatrist, for marriage counselling with his former wife. He also consulted Dr Rikard-Bell after the divorce. He was diagnosed with severe depression. He continued treatment until 2005 when Dr Rikard-Bell went overseas. The treatment included counselling and the prescription of anti-depressant medication. Details of the treatment can be found in Dr Rikard-Bell's report in Exhibit 1 at Tab 4.
(i) After Dr Rikard-Bell left, Dr Small consulted a psychologist on a number of occasions, which he apparently did not find helpful. In oral evidence he attributed difficulties with Dr Badaines to his present wife. The doctor had also apparently said that the couple were unsuitable to marry.
(j) Dr Small met his current partner in 2005. They married in May 2006. They have one child, now aged 5.
Patient's A background
Patient A did not give evidence. She was not required for cross-examination by Dr Small and the HCCC did not call her to expand on any of the allegations made by her. The following relevant matters of history emerge from the documentary evidence:
(a) Patient A was born in 1969.
(b) As at 2006 she was a single mother with financial difficulties.
(c) She had a long history of alcohol abuse. This was current in 2006 when she was prone to binge drinking.
(d) Patient A also had a significant history of depression. She was receiving current prescriptions of anti-depressant medication in 2006.
(e) Patient A's mother, grandmother and son were also patients at the Waterloo Medical Centre.
(f) Patient A's grandmother died in a nursing home in mid-March 2006.
Discussion and resolution
Dr Walid Jammal provided a report to the HCCC. A useful starting point is to quote his general comments on a doctor pursuing a sexual relationship with a patient:
"It is well documented and widely appreciated that having a sexual relationship with a patient is a serious breach of professional boundaries. It is also well know that 'it is an absolute rule that a medical practitioner who engages in sexual activity with a current patient is guilty of professional misconduct.' This is reiterated in the new National Code of Conduct, as well as AMA 'Code of Ethics', NSW Medical Board 'Policy on Sexual Misconduct', and the UK General Medical Council code on Good Medical Practice. Put simply, having a sexual relationship with a patient is always wrong, the reasons for which are reiterated by the former NSW Medical Board and include:
Dr Jammal (Exhibit A, page 136) summarises the position firmly: "Put simply, having a sexual relationship with a patient is always wrong..."
As already stated, Dr Small, by his counsel, made a complete admission in respect of Complaints 1 and 2 other than the minor matters already referred to emanating from particular 2 in Complaint 1. Notably he admitted that he had been guilty of professional misconduct.
The Tribunal formally finds the complaints have been established as alleged in the Amended Notice of Complaint. This is subject only to the findings and notations already made concerning particular 2 in Complaint 1.
Dr Small's response to the allegations is primarily contained in his statement. He also gave oral evidence.
In paragraph 84 of his statement Dr Small says the following:
"I admit the inappropriate nature of my personal and sexual relationship with Patient A. I accept that I had a significant lapse of judgment in engaging in the improper relationship with Patient A. I admit that I engaged in professional misconduct in allowing the relationship to develop and continue and in not ending the therapeutic relationship after it had developed and ended."
Notwithstanding the admission just quoted the Tribunal finds that Dr Small's statement and oral evidence, while being frank also contains elements which might be interpreted as an attempt to justify his inappropriate activities. For example, he refers to the relationship with Patient A commencing when he felt "alone and isolated" because he was having "very serious difficulties" in the relationship with his then fiancé. In addition, he says that he continued elements of the relationship with Patient A because she threatened to report him to the Medical Board. Suffice to say, that any such report was fully justified.
In addition the history given to Dr Rikard-Bell contains assertions such as:
"He felt that this woman had pursued him. It initially started when he was involved managing her grandmother at a nursing home. She was very distressed, "She jumped me." Over several months there were 18 occasions. The affair stopped after 6 months. Then 9 months later there were one or two occasions at her place at her instigation." (Exhibit 1, page 70, underlining added.)
Dr Small's rationalisation of his entry into the relationship must be seen against a background which includes the following:
(a) Dr Small, together with other doctors in his practice, had treated Patient A for some time prior to April 2006.
(b) Dr Small was aware that Patient A was an extremely vulnerable person. He knew that in April 1999 Patient A had been physically assaulted (Exhibit A, page 78). He knew that she was a single mother, bringing up a young son on her own. He knew that she had alcohol problems and a history of depression.
(c) Patient A saw Dr Small on 29 March and 31 March 2006. At the very least he would have noticed the entry concerning Patient A's visit to the medical centre on 27 March when she was prescribed, by a different doctor, both strong painkilling medication and antidepressants.
(d) The sexual relationship commenced on 8 April 2006. Dr Small visited the patient's home at the request of a nurse from the nursing home where Patient A's grandmother had died about three weeks earlier. The nurse was concerned about Patient A's mental state.
(e) Dr Small's visit to Patient A was for the purpose of ministering to her condition. The visit became a session in which Dr Small allowed his own problems to surface. He effectively allowed Patient A to counsel him. The visit ended with sexual intercourse between the doctor and the consenting, but obviously very vulnerable patient.
(f) Dr Small continued to treat Patient A during the relationship including carrying out personal procedures such as pap smears.
(g) There are certain bizarre elements that arise from Dr Small's evidence. These include the fact that he married his current wife about a month after the relationship with Patient A began and continued the relationship after the marriage. His explanation for this behaviour included the then difficult attitude of his wife and his desire to have a child with her, noting that his wife was already pregnant.
As stated, the Tribunal accepts that Dr Small was honest in his oral evidence. It was also impressed with the depth of his remorse, his concern about the actions he had taken to remedy his failings and the apparent genuineness of his intent, if allowed, to practise in accordance with any conditions stipulated by the Tribunal.
In addition the Tribunal accepts the evidence of Dr Rikard-Bell about the nature, extent and effect of Dr Small's depression in 2006.
Orders
A summary of basic principles in HCCC v Howe [2010] NSWMT 12 is a useful introduction:
"59 This jurisdiction is exercised for the protection of the public and the medical profession. It is protective rather than punitive, and deregistration is not an automatic outcome of a finding of professional misconduct, even where that conduct is sufficiently serious to justify it: Health Care Complaints Commission v Karalasingham [2007] NSWCA 267 at [67]. It is clear that deregistration may be required in serious cases of professional misconduct in order to adequately achieve the objectives of minimising the risk of recurrence and of deterring other practitioners from engaging in such conduct and thereby maintaining public confidence in the profession: Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630; Re Dr Parajuli [2010] NSWMT 3 at [32]; Saville v Health Care Complaints Commission & Anor [2006] NSWCA 298 at [45]; Prakash v Health Care Complaints Commission [2006] NSWCA 153, Santow JA at [64] and Basten JA at [101]; Childs v Walton [1990] NSWCA 41."
The primary position put by the HCCC was that Dr Small should be de-registered. Counsel for the HCCC emphasised the stark nature of the contravention of boundaries and the need for the Tribunal, in protecting the public, to reduce the risk of Dr Small carrying out similar activities in the future. It was pointed out that an analysis of the risk of 're-offending' should take into account that Dr Small returned to the relationship, albeit briefly, with Patient A in 2007, ostensibly having terminated it in August 2006.
Counsel for the HCCC said that the essential question was whether deregistration was necessary to protect the public. Counsel fairly accepted that there were factors to explain (but not justify) Dr Small's conduct and she recognised the efforts that he had taken to remedy his failings. Counsel also accepted that Dr Small had received no counselling or treatment between August 2006 and the resumption of the relationship in 2007.
In their oral evidence Drs Rikard-Bell and Chung emphasised two significant aspects:
(a) The insight and acceptance of wrongdoing that Dr Small now had; and
(b) The efforts he had taken to normalise his conduct and be in a position to avoid any repeat of the inappropriate conduct.
In addition, Drs Chung and Rikard-Bell were of the view that Dr Small was a fit person to practise although both suggested the imposition of conditions. The Tribunal agrees with this assessment. The Tribunal is satisfied that Dr Small, having had continued treatment, attended appropriate courses and involved himself in ongoing education, is a fit and proper person to practise as a general practitioner. The Tribunal is, however, firmly of the view that any such practice should be governed by conditions.
In addition the Tribunal was impressed with Dr Small's commitment to the deprived community in which he practises and the difficulty he described in finding doctors to work in the area both on a short and long term basis.
The Tribunal asked the parties to agree on conditions that were practical but also met the purposes of providing protection to the public and the medical profession.
The proposed conditions agreed by the parties were generally accepted by the Tribunal subject to the following:
(a) The Tribunal was of the view that while Dr Small should be free to have a mentor it was more important that his continuing practice be supervised. The Tribunal has therefore substituted the mentoring conditions for supervision in accordance with the Medical Council of NSW Guidelines (PCH 7.5, level 3).
(b) The Tribunal did not see a need for Dr Small to be obliged to consult both a psychiatrist and a psychologist. A psychiatrist is sufficient.
(c) The Tribunal felt it important to limit the number of patients and period of time during which Dr Small should be permitted to practise. No resistance was put to the suggested maximum of 50 patients on any given day and working on no more than five days a week.
(d) Bearing in mind that the sexual relationship commenced during a home visit the Tribunal was of the view that such visits should be not allowed or restricted. The Tribunal accepted the suggested limits proposed by Dr Small namely limiting home visits to nursing homes, hostels or patients receiving palliative care.
In addition to these conditions, the Tribunal also finds that Dr Small should be reprimanded.
The Tribunal makes the following orders:
(a) The Practitioner is reprimanded.
(b) The Practitioner is subject to conditions on his registration as set out in Annexure A.
(c) The practitioner is to pay the complainant's costs of the proceedings.
ANNEXURE A
PRACTICE CONDITIONS
Practice (Public) Conditions
The practitioner is to practise only in a Medical Council of NSW ("the Council") approved group practice (group is defined as at least three practitioners), with one other practitioner on site wherever practicable. The absence of another practitioner at the Waterloo Medical Centre between 6.30am and 9.30am is not regarded as a breach of this condition.
For a period of 18 months the practitioner is to obtain approval of the Council prior to changing his place of practice.
The Practitioner is to be subject to supervision by a Council-approved registered practitioner for a minimum period of 18 months.
Within 21 days of the date of this Decision the Practitioner is to nominate a supervisor for approval by the Council, to monitor and review his clinical practice and compliance with all Conditions in accordance with Level 3 supervision of the Council's Guidelines for Supervision (Policy PCH 7.5). The supervisor is to be provided with a copy of Policy PCH 7.5 and a copy of the Medical Tribunal Decision upon which these conditions are based. The cost of the supervision and any reports is to be borne by the Practitioner. The Practitioner is to take steps to ensure that:
(a) He and the supervisor meet on a monthly basis for one hour, the first meeting to occur within one month of being advised by the Council that his nominated supervisor has been approved.
(b) At each meeting they address the issues of doctor/patient boundary responsibilities, doctor/patient communication, communication skills and workload.
(c) At each meeting the supervisor completes a record of matters discussed at the meeting in a format prescribed or approved by the Council.
(d) The supervisor forwards to the Council every six months a Supervision Report in a format prescribed or approved by the Council.
(e) He will meet with the supervisor for an initial period of 18 months from the date of the first consultation and thereafter for such period as the Council may determine.
(f) In the event that the approved supervisor is no longer willing or able to provide the supervision required by this order, another practitioner is to be nominated by the Practitioner for approval by the Council within one month of the cessation of supervision by the Practitioner's previous supervisor.
The supervisor is authorised to inform the Council immediately if there is any concern in relation to the practitioner's compliance with the supervision requirements, compliance with other conditions of registration, clinical performance, health or if the supervisor relationship ceases.
Health-related (Private) Conditions
To attend for treatment by a psychiatrist of his choice, at his own cost, at a frequency to be determined by the treating psychiatrist. The practitioner is to notify the Council of the name of his treating psychiatrist within 2 weeks and is to authorise the treating psychiatrist to inform the Council of failure to attend for treatment, termination of treatment or if there is a significant change in health status.
To attend for review by a Council-appointed psychiatrist, within six months, and subsequently as directed by the Council at the Council's expense.
To attend any Review Interview at the Council on a six monthly basis or as otherwise directed by the Council.
To authorise the Medical Council to forward copies of the Medical Tribunal 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 Council within 7 days of any change in treating practitioner, so that copies of the Decision may be provided to them.
To attend for treatment by a general practitioner of his choice, at a frequency to be determined by him and the treating general practitioner. He is to advise the Medical Council of the name of his general practitioner within 2 weeks and is to authorise the treating general practitioner to inform the Medical Council of failure to attend for treatment, termination of treatment or if there is a significant change in health status.
To see no more than 50 patients on any given day and not to work on more than five days a week.
Not to make home visits other than to nursing homes, hostels or patients receiving palliative care.
Review of conditions
The Medical Council of NSW is the appropriate review body for the purposes of Division 8 of Part 8 of the Health Practitioner Regulation National Law (NSW). The conditions may be varied, amended or removed at the discretion of the Medical Council of NSW.
However, should Dr Small seek to change or remove any of the conditions imposed as a result of this Tribunal's orders when his principal place of practice is anywhere in Australia other than in New South Wales, sections 125 to 127 inclusive of the Health Practitioner Regulation National Law (NSW) are to apply, so that a review of these conditions can be conducted by the Medical Board of Australia.
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Decision last updated: 20 July 2012
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