Health Care Complaints Commission v Holmes

[2010] NSWMT 19

New South Wales

Medical Tribunal

CITATION:	Health Care Complaints Commission v Holmes [2010] NSWMT 19
TRIBUNAL:	Medical Tribunal
PARTIES:	Health Care Complaints Commission (Complainant) Dr John Gerard Holmes (Respondent)
FILE NUMBER(S):	40005 of 2010
CORAM:	Staff J - Toh, Dr S - de Carvalho, Dr V - Mair, Dr J
CATCHWORDS:	PROFESSIONAL MISCONDUCT :- sexual relations with patient - conduct admitted by medical practitioner - civil penalty - principles - removal from register - whether permanently unfit to practice - genuine contrition - real and genuine insight into unethical conduct - practitioner suspended - conditions imposed - costs.
LEGISLATION CITED:	Evidence Act 1995 Medical Practice Act 1992
CASES CITED:	A Solicitor v Council of the Law Society of New South Wales (2004) 216 CLR 253; Australian Competition and Consumer Commission v Dataline.Net.Au Pty Ltd (in liquidation) [2007] FCAFC 146; (2007) 161 FCR 513; Briginshaw v Briginshaw & Anor (1938) 60 CLR 336; Childs v Walton [1990] NSWCA 41; Davison v Council of the New South Wales Bar Association [2007] NSWCA 227; Gad v Health Care Complaints Commission [2002] NSWCA 111; Health Care Complaints Commission v Karalasingham [2007] NSWCA 267; Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630; Health Care Complaints Commission v Howe [2010] NSWMT 12; HCCC v Dr Mark Fairbrother [2008] NSWMT 5; HCCC v Dr Marcus Stoodley (Medical Tribunal, 5 November 2008); In Re Dr David John ELLIS [2006] NSWMT 9; In Re Dr B [2007] NSWMT 4; In Re Dr Geoffrey Robert Abrahams and the Medical Practice Act (Medical Tribunal, 14 December 1990); In Re Dr Roger Steven Jones and the Medical Practice Act [2005] NSWMT 9; Medical Board of Queensland v Thurling [2003] QCA 518; New South Wales Bar Association v Cummins [2001] NSWCA 284; (2001) 52 NSWLR 279; NSW Medical Board v Dinakar [2009] NSWMT 8; Ponzio v B & P Caelli Constructions Pty Ltd [2007] FCAFC 65; (2007) 158 FCR 543; Prakash v Health Care Complaints Commission [2006] NSWCA 153; Re the Medical Practice Act 1992 and Dr. Stuart Anderson [2004] NSWMT 3; Re Dr Parajuli [2010] NSWMT 3; Saville v Health Care Complaints Commission & Anor [2006] NSWCA 298
DATES OF HEARING:	29 November 2010
DATE OF JUDGMENT:	14 December 2010
LEGAL REPRESENTATIVES:	Ms K Stern of counsel (Complainant) Health Care Complaints Commission Mr M Lynch of counsel (Respondent) Peter A Smith Law Practice
ORDERS:	1. Pursuant to s 64(1)(b) of the Medical Practice Act 1992, the Tribunal suspends Dr John Gerard Holmes from practising as a medical practitioner for a period of 12 months. 2. Dr Holmes is to pay the HCCC's costs of these proceedings, on the ordinary basis as defined in Sch 3 of the Civil Procedure Act 2005. 3. Pursuant to s 61(1)(c) of the Medical Practice Act, the Tribunal directs the following conditions be imposed upon Dr Holmes' registration; Health; 3.1 to continue to attend for treatment with his psychiatrist, Dr Johns, at his own costs, at a frequency to be determined by Dr Johns; 3.2 to authorise Dr Johns to inform the Medical Council of New South Wales of any failure to attend for treatment, termination of treatment, or if there is a significant change in health status; Education and Medical Ethics; 4. To complete at his own expense, the course on Medical Ethics conducted in distance mode by the Department of General Practice, Monash University, Victoria. The course must be completed during Dr Holmes' period of suspension; 4.1 Within two weeks of completing the Medical Ethics course, to provide documentary evidence to the Medical Council of New South Wales that he has satisfactorily completed the course; 4.2 Within eight weeks of the date of this decision, the practitioner must provide evidence to the New South Wales Medical Council that he has enrolled in the Medical Ethics course; 5. These conditions may be varied, amended or removed at the discretion of the New South Wales Medical Council.

JUDGMENT:

- 1 -

MEDICAL TRIBUNAL OF NEW SOUTH WALES

DEPUTY CHAIR: Staff J

Dr S Toh

Dr V De Carvalho

Dr J Mair

Tuesday 14 December 2010

Matter No 40005 of 2010

HEALTH CARE COMPLAINTS COMMISSION v DR JOHN GERARD HOLMES

IMPORTANT NOTE

SUPPRESSION ORDER

PURSUANT TO CLAUSE 6 SCHEDULE 2 OF THE MEDICAL PRACTICE ACT 1992 THE TRIBUNAL HAS ORDERED THAT THERE BE NO PUBLICATION OF THE NAME OF PATIENT A OR OF ANY MATERIAL CAPABLE OF IDENTIFYING PATIENT A.

DETERMINATION AND ORDERS

1 The Health Care Complaints Commission ("HCCC") alleges that Dr John Gerard Holmes ("Dr Holmes"), a medical practitioner, is guilty of unsatisfactory professional conduct and/or professional misconduct, in that he has demonstrated that the knowledge, skill, judgment or care exercised by him in the practice of medicine, is significantly below the standard reasonably expected and/or has engaged in "unsatisfactory professional conduct" or "improper or unethical conduct" relating to the practice of medicine contrary to s 36(1)(a) and s 36(1)(m) of the Medical Practice Act 1992 (now repealed) (" Medical Practice Act" ).

2 The particulars were that:

At all relevant times, the practitioner conducted practice as a general practitioner. Patient A was a patient of the practitioner from approximately July 1991 until late 2006 and thereafter on 4 occasions in late 2008 and early 2009.

1. In about November 1998 after undertaking a pap smear of Patient A in his room, the practitioner had sexual intercourse with Patient A.

2. From late 1998 until about February 2008, the practitioner engaged in an inappropriate personal and sexual relationship with Patient A when a regular and continuous therapeutic relationship existed for most of that period.

3. On the following dates during consultations with Patient A, the practitioner offered Patient A marital counselling and offered advice about Patient A's problems with her husband, including advice that she leave her husband, when at all relevant times he was engaged in a personal and sexual relationship with Patient A:

(i) 8 April 2002;

(ii) 5 April 2002;

(iii) 16 July 2002;

(iv) 13 May 2003;

(v) 4 March 2004;

(vi) 14 May 2004;

(vii) 19 August 2004;

(viii) 24 January 2005;

(ix) 27 January 2005;

(x) 7 April 2005;

(xi) 14 July 2005;

(xii) 21 July 2005;

(xiii) 4 August 2005;

(xiv) 29 September 2005 and

(xv) 4 October 2005.
4. On 25 January 2005, the practitioner provided to Police an Expert Certificate under s.177 of the Evidence Act 1995 in relation to an alleged incidence of domestic violence between Patient A and her husband without disclosing that he was at the time and had been since late 1998, engaged in a personal and sexual relationship with Patient A.

3 Dr Holmes admits the particulars of the complaint and that he engaged in unsatisfactory professional conduct that amounts to professional misconduct because it is sufficiently serious to justify suspension or deregistration. Pursuant to s 159 of the Medical Practice Act, the Tribunal determined it was therefore unnecessary to conduct an inquiry into the complaint.

4 The issue, therefore, is the appropriate protective orders that should be made by the Tribunal.

Background

5 Dr Holmes is 55 years of age. He is married to his second wife and has a daughter who was born in 2010. He has four children from his first wife. The fifth child, Thomas Holmes, who was born in 1997, died at four days of age.

6 Dr Holmes completed his medical degree at the University of New South Wales, passing with second class honours. After an internship with St George and Canterbury Hospitals, and working as a resident medical officer at Lismore Base Hospital, he commenced general practice at Brunswick Heads and Ocean Shores in 1983 when he purchased a long established medical practice. The principal practice is at Ocean Shores Medical Centre. The practice has grown steadily over the years and now consists of five fulltime general practitioners and one or two medical registrars. The practice has just under 10,000 patients on its books and is consistently busy being the only medical facility in the Ocean Shores area. There is another medical practice approximately 15 minutes from Ocean Shores.

7 From approximately July 1991 until late 2006, and on four occasions in late 2008 and early 2009, Patient A consulted Dr Holmes at the Ocean Shores Medical Centre. On 26 November 1998, Patient A presented for a post natal check up, which included a vaginal examination and a pap smear. During the consultation, Dr Holmes said that Patient A told him that while she was in hospital, after her baby was born, she dreamt that he had put his arms around her, hugged her, and kissed her on the cheek and that she had felt all warm and wonderful about this. Dr Holmes recalled that when Patient A told him this, he was overwhelmed with a feeling of desire and attraction towards Patient A. At the conclusion of the consultation they embraced, responded passionately to each other, kissed and had sexual intercourse. He says there was no premeditation on his behalf and afterwards he felt a sense of shock and numbness. Dr Holmes completed the consultation and Patient A left the surgery. He made no follow up appointment for her and did not ring or contact her subsequently.

8 After the initial incident, Patient A continued to consult Dr Holmes. He never telephoned her in a social or professional sense. On the majority of occasions she saw him, she was accompanied by her then husband and/or her children. However, occasionally she attended alone, or with her baby. In the years from 1998 to 2004, Dr Holmes engaged in sexual intercourse with Patient A, following a consultation, on three or four occasions per year.

9 In 2004, Patient A separated from her husband, leaving the marital home. From this time onwards, Dr Holmes and Patient A began to see each other socially and the relationship grew stronger. From the beginning of the relationship, Dr Holmes said that he discussed with Patient A on many occasions that it was improper for him to have a relationship with her whilst also being her doctor. However, he did not formally end the therapeutic relationship. He still does not fully understand how he could have allowed the relationship to start and to let it continue whilst she remained his patient. He knew it was wrong and potentially harmful to Patient A and that it broke the trust that a patient must have in their doctor. His judgment was not clouded by drugs or psychiatric illness. However, he did feel a strong attraction and developed love for Patient A. He felt he could help her and if he forced her to see another doctor that he was in some way abandoning her and letting her down. This was especially so during the difficult period she had after she separated from her husband, the divorce, property settlement and the legal problems that arose. The belief that she needed him, together with his love and desire for her, led to his lapse of judgment and the continuation of the unethical relationship.

10 In 2004, Patient A advised Dr Holmes that the reason she had to leave her husband was that he had sexually molested his stepdaughter on numerous occasions and that she had come home one night and caught him. She reported this to the Police and obtained an Apprehended Violence Order ("AVO"). Subsequently, the Police charged Patient A with "hindering a serious indictable offence," contending that she had fabricated the story. She was convicted of this offence in November 2007.

11 In January 2005, Patient A was stabbed by her ex-husband. It was a Sunday. Patient A's daughter called Dr Holmes to come urgently. When he arrived at her home, the Police and Ambulance were in attendance. Patient A had been stabbed in the shoulder and had a wound to her hand. Her ex-husband was charged and convicted and received a community service sentence. Apparently Patient A was bitter about the sentence and felt that he should have been punished more severely.

12 Dr Holmes provided, pursuant to s 177 of the Evidence Act 1995, an expert certificate dated 25 January 2005 in respect of the injuries suffered by Patient A. He included in the certificate that Patient A had consulted him in July 2002 and stated that her husband had attacked her and twisted her neck. On examination, she had a sprained neck. She also consulted him in July 2004 after her husband had hit her several times in the face with his fist and threatened to kill her. On examination, her upper and lower lips were swollen, bruised and abraded and she was emotionally distressed. Her injuries were consistent with the stated cause. Dr Holmes noted that she had called the Police and they may have taken a statement from her and that she had obtained an AVO. She told Dr Holmes that subsequently her husband had continued to call her up to 10 to 20 times a day.

13 In October 2005, Dr Holmes and Patient A had a weekend holiday where they both agreed that he could not continue to be her doctor and that she would transfer to another doctor. They also discussed the idea of having a child together as their relationship had become very serious. Subsequently, she consulted two doctors regarding a gynaecological issue.

14 Dr Holmes' staff were made aware that Patient A was not to be booked in to see him. However, despite this, a few further consultations did occur with him. On occasions, Patient A would insist, or just turn up at the Medical Centre and Dr Holmes took the view that it was impolite and harsh to refuse to see her.

15 In June 2006, Dr Holmes separated from his wife, who became aware of his relationship with Patient A.

16 In August 2006, Dr Holmes had a holiday with Patient A in New Zealand. They began to see each other frequently. He introduced her to his family, including his brother and sister.

17 In 2007, they travelled overseas to meet Patient A's extended family. Towards the end of 2007, they began to quarrel frequently and on several occasions, Dr Holmes sought to end the relationship. Patient A refused to accept this and became very distressed and emotional. He says that Patient A would frequently say to him "don't worry, I won't report you, as long as you do the right thing" and sometimes, "remember, I have a gun to your head" and "I can pull the trigger any time I choose to."

18 In February 2008, Dr Holmes left for an extended overseas holiday, hoping to make a complete break in the relationship. Whilst away, he met a new girlfriend. In November 2008, Patient A threatened to report their relationship to the Medical Board of New South Wales ("Medical Board"), and demanded that Dr Holmes pay her $100,000 for her silence.

19 In January 2009, Patient A informed Dr Holmes that she had lodged a complaint with the Medical Board. In February 2009, she advised him that she had been interviewed by representatives of the Medical Board. In March 2009, she came to his house and demanded $150,000, and said she would drop the complaint if he paid her that amount. Later that day, Dr Holmes received a text message from Patient A saying "I'm giving you final notice. I'm giving you until the end of this month to come up with the money or I will continue legal action. Reply back with your answer." Dr Holmes showed this text message to his solicitor and various colleagues in his practice, including his practice manager and also his daughter.

20 Dr Holmes arranged to meet Patient A at his home with his daughter present in an adjacent room. Patient A again demanded $150,000.

21 On 29 March 2009, Dr Holmes spoke to Ms Kate Harvey at the HCCC. He enquired if a complaint had been lodged. He advised her of Patient A's demands and admitted he was guilty of professional misconduct. Dr Holmes knew a doctor/patient relationship was fundamentally wrong in a "prohibited sense." However, he said he had little understanding of the complex issues of boundary transgressions and of the reasons why it was wrong. He said that he works in a small rural area where it is almost impossible to maintain absolutely strict boundaries. It is inevitable that friends become patients and patients become friends and associates. He acknowledged that this erosion of boundaries made it easier to adopt an attitude of acceptance and could lead to more serious boundary transgressions without feeling guilty about it.

22 Following the death of his son, Dr Holmes said his wife became depressed for a long period of time. He thought that he was coping. However, on reflection, he says it was a very difficult time and perhaps he did not cope as well as he thought. He can now see that he was emotionally vulnerable. He was attracted by the feeling that Patient A invoked in him of love, optimism, hope and carefree happiness, although he acknowledges that this was no excuse, but possibly a biopsychosocial explanation.

23 Dr Holmes said that he discussed with Patient A on many occasions, the situation of having a sexual, as well as therapeutic relationship. Although Patient A was firmly of the view that this was what she wanted, he now knows that a patient can never give consent to such a relationship. At the time, her so-called "permission" allowed him to delude himself into thinking that it would be acceptable and not harmful. He did not stop to consider the broader ramifications of the transgression, but now recognises that this was a complete breach of the fiduciary trust of the doctor/patient relationship.

24 Following the complaint being lodged, Dr Holmes undertook extensive research and reading to develop an insight and understanding of boundary transgressions. His awareness of the issues and insight is now far in advance of what it had previously been. He believes that there is absolutely no risk of him transgressing again. Dr Holmes has consulted Dr Derek Johns, a psychiatrist. This occurred shortly before the complaint was lodged. Initially he saw Dr Johns because he was acutely depressed and anxious. This was a reaction to his situation. This resolved relatively quickly, however, he has continued to consult Dr Johns because it has prompted him to explore the underlying reasons and motivations for his actions. At the time of the hearing, he had seen Dr Johns on 17 occasions and continues to see him. Additionally, Dr Holmes has undertaken open and candid discussions with various colleagues. He listed 10 publications that he has read which deal with the subject of boundary violations and 3 books that he has also read on the same topic.

25 Dr Johns was asked to address to what extent Dr Holmes currently has insight into the inappropriateness of his sexual relationship with Patient A between 1998 and 2008. In his report dated 8 September 2010, Dr Johns said:

My understanding of the situation is that Dr Holmes and the patient concerned developed a romantic attachment over time and the culmination of that with sexual activity came as a shock to him. He realised the inappropriateness of the relationship at the time, however he felt a strong sense of responsibility and loyalty to this patient and did not wish her harm in any way. This extended to his concern as to how she might react to abandonment. In any case, they both expressed their love for one another and the relationship progressed, as related in Dr Holmes' statement. The absolute nature of the inappropriateness of such a relationship is now very obvious to Dr Holmes.

26 Dr Johns also stated in his report that he did not believe that there was any likelihood of Dr Holmes repeating such professional boundary violations in the future. Dr Johns' opinion was that he did not think that Dr Holmes "really 'decided' to embark on a sexual relationship with his patient." From what he understood, sexual intercourse happened unexpectedly and Dr Holmes felt bewildered by what had occurred and it was in no way planned or premeditated.

27 Dr Johns acknowledged that Dr Holmes' conduct was a matter of serious professional misconduct, not only in starting and continuing the sexual relationship, but also in continuing the therapeutic relationship. Dr Holmes says he is ashamed of himself and that that it will never happen again. He sincerely apologises to Patient A and her family, the Medical Board (now known as the Medical Council of New South Wales) and the medical profession in general, for not upholding the standards and ethics expected of a doctor.

Professional misconduct

28 For the purposes of the Medical Practice Act , "unsatisfactory professional conduct" of a registered medical practitioner is defined as follows:

36 Meaning of “unsatisfactory professional conduct”

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

(a) Conduct significantly below reasonable standard
Any conduct that demonstrates that the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of medicine is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience.
...
(m) Other improper or unethical conduct
Any other improper or unethical conduct relating to the practice or purported practice of medicine.

29 For the purposes of the Medical Practice Act , "professional misconduct" of a registered medical practitioner means:

37 Meaning of "professional misconduct"

(a) unsatisfactory professional conduct, 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 of the practitioner from practising medicine or the removal of the practitioner’s name from the Register.

30 In order for the Tribunal to be satisfied that the allegation is established, the Tribunal must be comfortably satisfied on the balance of probabilities, having regard to the serious nature of the allegation and the serious consequences: Briginshaw v Briginshaw & Anor (1938) 60 CLR 336.

31 The New South Wales Medical Board Code of Professional Conduct July 2005 provides:

2.3 Maintaining trust with and providing information to patients
...
Observe professional boundaries with patients. This includes not engaging in personal relationships or sexual behaviour with patients. This principle is subject of a specific policy in relation to Sexual Misconduct issued by the NSW Medical Board.

32 The New South Wales Medical Board Policy Statement "Medical Practitioners and Sexual Misconduct" dated 27 October 1995 provides:

1. It is an absolute rule that a medical practitioner who engages in sexual activity with a current patient is guilty of professional misconduct.

2. While not detracting from the fundamental impropriety of such activity, the sanction applied as a result of a finding of misconduct may vary according to the circumstances of each case.

3. Factors to be considered include the degree of dependence in the doctor/patient relationship, evidence of exploitation, the duration of the professional relationship and the nature of the services provided.

4. The rule refers to current patients. This termination of the doctor/patient relationship prior to sexual activity may be raised as a defence, but its strength will be dictated by consideration of the factors referred to in paragraph 3, as well as the time lapse after the end of the professional relationship.

33 Among the reasons advanced for the rule are:

· The doctor is in a unique position regarding physical and emotional proximity. Patients are expected to disrobe and to allow doctors to examine them intimately.

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

· The doctor's role is one of authority by virtue of the patient seeking assistance and guidance.

· Breaches of the doctor-patient relationship have often caused severe psychological damage to the patient.

· The community expectation of the medical professional is one of utmost integrity. The community must be confident that personal boundaries will be maintained and that patients are not at risk.
...

34 The Policy concludes by observing:

The Board rejects the view that changing social standards require a less stringent approach. The nature of the professional doctor/patient relationship must be one of absolute confidence and trust. It transcends social values and no standard other than the highest can be acceptable.

35 The Tribunal finds that a doctor/patient relationship existed between Dr Holmes and Patient A between November 1998 and February 2008, during which Dr Holmes became involved in an inappropriate personal and sexual relationship with Patient A. Such conduct constitutes professional misconduct within the meaning of s 37 of the Medical Practice Act and involves a very serious breach of the standards set out in the New South Wales Medical Board Code of Professional Conduct and its policy statement set out above.

Principles

36 This jurisdiction is exercised for the protection of the public and the medical profession. It is protective rather than punitive. 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.

37 It is important to bear in mind that the question of fitness to practice must be determined at the date of hearing: A Solicitor v Council of the Law Society of New South Wales [2004] HCA 1; (2004) 216 CLR 253 (at [21]). In determining the question of fitness, the whole of the conduct of the practitioner should be considered: Gad v Health Care Complaints Commission [2002] NSWCA 111 at [55].

Penalty

38 Ms K Stern of counsel, who appeared for the HCCC, relied upon the New South Wales Medical Board Code of Professional Conduct and the Board's guidance on sexual misconduct. Counsel submitted that the aggravating factors were that the relationship was initiated after taking a pap smear; the relationship was conducted over approximately five to six years in Dr Holmes' professional consulting rooms where the power imbalance in the relationship was at its highest; that Dr Holmes was clearly aware of the seriousness of what he was doing; that he knew at the time that it was improper and potentially harmful for him to continue the relationship; that it broke the trust which a patient has with a doctor; that the relationship continued through a highly tumultuous time for Patient A; that Dr Holmes did not bring the relationship to the attention of the Medical Board until he was in a position where he knew that Patient A had made a complaint; that Dr Holmes provided counselling to Patient A on a number of occasions in 2002, when in a sexual and personal relationship with her (in 2004 this counselling included reference to her husband and whether or not she should leave him); the relationship continued whilst Dr Holmes' view was that Patient A had post traumatic stress disorder and depression; Dr Holmes continued seeing Patient A professionally until 3 January 2009 and the providing of the expert's certificate by Dr Holmes in respect of an alleged assault on Patient A by her ex-husband in January 2005.

39 The HCCC relied upon each of these factors in submitting that the proper protective order in this case was the removal of Dr Holmes' name from the National Register of Health Practitioners.

40 Mr M Lynch of counsel, who appeared for Dr Holmes, submitted that the critical question for the Tribunal to determine was whether it was necessary for the purposes of deterrence, both specific and general and for the proper maintenance of professional standards, to make an order which precluded Dr Holmes from continuing to practice as a doctor. Counsel concluded that the Tribunal's decision would turn on the impression that it formed of Dr Holmes, the insight that he has gained regarding his misconduct and whether this insight was a true insight as identified in various decisions of the Tribunal, as distinct from a superficial insight.

41 Mr Lynch submitted that when these factors taken together with ensuring the protection of the public, maintaining public confidence and standards in the profession, and marking the unacceptability of the kind of conduct under consideration, together with Dr Holmes' personal rehabilitation, this would result in a penalty of such severity as deregistration being unwarranted. Counsel submitted that the above principles may be achieved through the imposition of a significant fine, or a period of suspension and the imposing of appropriate conditions. Counsel relied upon the decision of Davison v Council of the New South Wales Bar Association [2007] NSWCA 227 where he submitted the Court observed that deregistration should be reserved for those practitioners who are permanently unfit to practise.

42 In a subsequent written statement dated 20 November 2010, Dr Holmes articulated what he had learnt in relation to the issues of boundary transgressions. After undertaking a substantial amount of reading on this subject, referred to earlier in these reasons, Dr Holmes stated that it soon became apparent to him that the first step was to undertake a thorough and honest self-analysis and expose of what had occurred by reducing it to writing. At this time, Dr Holmes said that he was in a severe state of anxiety and depression to the point where he had constant daily suicidal ideation, which was reactionary and very unlike his normal personality. It was at this time he was referred to Dr Johns, who he continues to consult on a monthly basis. Dr Johns has reassured him that he does not have a psychiatric or personality disorder and helped him work through the issues of how and why boundary violations can occur and how to be prepared and aware of the risks so that any transgressions can be prevented. Under the heading "What have I Learned?", Dr Holmes stated:

(a) My level of awareness, insight and knowledge of maintaining boundaries in a therapeutic relationship is far in advance of what it was previously. I understand the risks, dangers and potential harm to the patient.
(b) I realise clearly what I have done wrong and although I cannot change the mistakes of my past I can ensure that they will never happen again.
(c) With absolute certainty I can reassure the Tribunal that there is no danger of me ever transgressing professional boundaries again.

43 Dr Holmes said that he is now more aware of the following:

(a) That a patient can never, ever give the doctor permission to have a sexual relationship.
(b) The therapeutic relationship is one of trust. A fiduciary relationship is built on trust. One where the patient must have complete confidence that the doctor will act only in the patient's best interest. One of confidence where the doctor is bound to act in good faith, in privacy and trust usually in return for a fee.
(c) The doctor/patient relationship is one with a power differential where the doctor is in the position of power.
(d) What are boundaries and why they are essential. The need for the public to have confidence and trust in the doctor/patient relationship.
(e) The extent of the problem. Prevalence - sexual transgression - between 3%-10% in most studies.
(f) It is always the doctors responsibility to maintain boundaries.
(g) The " slippery slope " of boundary transgression. The range and types of boundary transgressions leading up to boundary violations.
(h) The " zone or time of vulnerability " the time from when the doctor has in his mind completed the consultation - the history is taken, the examination done, the scripts or investigation paperwork is completed but the patient has not left the consultation room. It is a time when it is easier for the doctor and or the patient to let their guard down and transgressions are more likely to occur at this time and until the patient is escorted out the door.
(i) The concept of transference - where a complex set of emotions formed in the past can become activated and combined with the present and directed towards the therapist by the patient. An unconscious assignment of performed feelings and attitudes originally associated with a significant past life figure.
(j) Counter transference - similar to transference but from the doctor towards the patient.
(k) Types of transgressions - boundary blurring, dual relationships, sexual impropriety, boundary transgression, sexual violation.
(l) The various profiles of doctors who transgress boundaries are:
Naive/lovesick, neurotic lovesick, severely neurotic/socially isolated, impulse control disordered (sic), sociopathic neurotic, personality disorder, psychotic and severe borderline personality disorder, sex offenders, medically disabled.
Of these, I would categorise myself as Naive/lovesick (and emotionally vulnerable), although I realise this only with the benefit of retrospection and introspection.
(m) The type of patient who is vulnerable - naive, neurotic, borderline personality disorder, sexually abused.
(n) Prevention of boundary transgression - education of doctors, public awareness, ethics, recognition of early transgression - avoid the slippery slope.
(o) The patient is always the victim and can come to considerable harm emotionally and psychologically.
(p) Types of harm - loss of trust, loss of the therapeutic benefit of the doctor patient relationship, depression and psychological trauma.
(q) Consequences for the doctor - loss of career, emotional and psychological effects.
(r) The use of chaperones.
(s) The misinterpretation of social change, the relaxation of dress codes and a more collaborative empathetic style of consulting can blur the boundaries.

44 His statement concluded with the following summary:

(a) I recognise that I have made a grave mistake in having a sexual relationship with a current patient and in continuing to treat her. I was misguided in my belief that I could help her and be a good doctor to her.
(b) I have done my best to be open and honest about this and accept responsibility. I blame her in no way.
(c) I have worked earnestly to understand myself and to further my knowledge and education, awareness and insight.
(d) I believe with sincere confidence that this will never happen again and can assure the Tribunal of this fact.
(e) I have worked in the same small rural community for over 27 years and believe I am kindly regarded as a doctor. I would like to continue to work in this community despite the fact that this matter has and will become publicly known.
(f) My colleagues, in particular Dr Coker are willing to continue to work with me and trust me.
(g) I hope the Tribunal takes into account my sincerity, contrition, efforts to educate myself and my complete reassurance that I will never do this again in determining the appropriate orders in my case.

45 Mr Lynch submitted that there was no risk that such misconduct would recur. The Tribunal has reached a similar conclusion as will be explained.

46 When Dr Holmes became aware that a complaint had been made, he acknowledged his misconduct and has been contrite and remorseful ever since. Dr Holmes has undertaken an extensive and impressive reading of material on boundary violations and also attended a workshop to gain a greater understanding of the doctor/patient boundaries.

47 In particular, the Tribunal accepts that Dr Holmes has a true and genuine insight into the dangers and risks to which he exposed Patient A by engaging in a sexual relationship. Dr Holmes gave the following oral evidence:

Q. If the tribunal was inclined to permit you to continue in practice in the future why should it be confident that your assertion that you won't do anything of this kind in the future is a reliable one?
A. Well I can only say that from my state of knowledge to what I had previously, and to what I have now, it has had a huge, enormous difference. My level of insight and awareness into this issue is much, much greater, especially the fact that I never wished harm to her, and I wouldn't want to harm anyone again.

Q. What impact do you think engaging in boundary transgressions like you have with Patient A, what impact does that have on the medical profession, as you see it?
A. Well, obviously, the general public and the medical profession has to have confidence that when they go to a doctor that it's a position of trust, where they can trust their private details, their personal and emotional feelings, and the doctor will only act in the patient's interests. Now, if the general public hasn't got that confidence then it brings the medical profession into disrepute. They must have that confidence. I said to you earlier about it.

Q. Were you conscious of that possible impact back in the period from '98 to 2006 or 2007?
A. I didn't think about it enough.

Q. Did you consider what impact on your profession it might have that you were exposing this patient to possible risk?
A. I did consider it, but in all honesty I was misguided, I know, but I thought I could help her.

Q. What do you mean by you thought you could help her?
A. Well, I though I was helping her by being her doctor.

Q. And why did you think that?
A. Well I, I felt I cared about her. I cared about her welfare, I cared about her problems - not to say some other doctor wouldn't care about her. Maybe they would, but I felt in a position where I could help her and look after her, and I didn't consider enough the clarity of judgment that being in a sexual relationship involves.

Q. Did you think back then that you were able to maintain efficient objectivity to treat her with adequate care?
A. I did.
Q. Do you think that now?
A. No I don't. I know in a sense it was a kind of delusion, where you think you can do it but you don't really do it properly.

Q. And what about the selfish side of the relationship, what do you think about that, the selfish side of the personal and sexual relationship? What have you got to say about that?
A. Well, there's truth in that, I wanted to see her. I don't say I was totally altruistic in wanting to help her. I loved her, I wanted to be with her. I wanted to see her so, of course, there was a selfish side to it.

Q. Now, in your conversation with your psychiatrist, and I think in your statement you made reference to the sad and premature death of your baby?
A. Yes.

Q. I don't think you seek to offer that as an excuse for your behaviour, do you?
A. Not really, and I think that affected my wife way more than it affected me, although it did affect me, but it certainly affected her.

Q. What does that have to do with your boundary transgression, can you indicate to the tribunal what, if anything?
A. I think, I think it kind of left me in a sort of emotional vacuum. My wife suffers from mood disorders, bi-polar disorder, and the death of the child put her into a serious depression, and my kind of nature is I want to help her, and someone with bi-polar, their moods are kind of independent of, you know, you can't do anything. Sometimes the more you try the more, the worse you make it, and so she withdrew, and I think by the time, end of '98, I just needed someone, and it just coincided with xxxxx coming along.

48 During cross-examination, Dr Holmes gave further evidence about his insight:

Q. How can this tribunal be confident if an infatuation developed again that you will be able to resist it?

A. Well, I can reassure the tribunal that I will be far more vigilant. And I am more insightful and aware of the repercussions and the lead up to any hypothetical infatuation. Certainly the fact that I now understand a lot of the issues surrounding boundary transgressions, doctor/patient relationships, that education and skills will help prevent that ever happening again, I have absolute certainty of that, completely.

Q. How does an awareness of boundary transgressions help you if you are in the throes of an infatuation?
A. Knowledge and education arms with you some sort of skills to stop it happening, it is not as if you blindly lose control.
...
Q. How can anything that you have described give you confidence that you may not again become similarly overwhelmed?
A. I think the mindfulness and certainty and awareness of the situation, of the possibilities of things like that happening arms you with the determination and absolute certainty it won’t happen again because I won't allow myself to - it will not happen again.
...
Q. If this happened again, that you were in a emotional involvement, you can’t possibly predict what might happen?
A. As far as anyone can predict I will say that certainly it won’t happen again. Once bitten twice shy. I will make sure I am not in that situation again and I will try not to be in a vulnerable situation.

Q. How will you make sure of that?
A. I will make sure by a continual degree of action because I have been there and I know what harm it can do. I have learnt from my experience.

Q. Do you say that the Tribunal can rely on your assurance because of things you have put in place?
A. It is not just introspection but I think that is an important part of self awareness, of trying to control your actions and reactions. If you don’t have introspection and look at ourselves maybe you never change. I think you do, maybe you can change.

49 The Tribunal accepts that Dr Holmes has learnt from the experience. This is the only occasion on which Dr Holmes has been involved in a relationship with a patient.

50 Almost two years has elapsed since the complaint was brought to the attention of Dr Holmes. He says that in that time what has changed is mostly in his mind, in his heart, and in his soul. The functionality of the practice has not changed much. His evidence is that he does not believe that patients are at risk at all when consulting him. He is particularly conscious of what he described as "the zone of vulnerability" or "time of vulnerability" which occurs at the conclusion of the medical consultation, when boundary transgressions can occur. His evidence was that you have to recognise the risk times so you can prevent them.

51 Taken as a whole, these are an unusual combination of circumstances. The Tribunal has reached the conclusion that Dr Holmes understands the gravity of his conduct. In this respect, he has been assisted by the 17 consultations that he has had with Dr Johns. He continues to consult him. The changes undergone by Dr Holmes in respect of his belief, his thinking, his acceptance that his behaviour was intolerable and that such misconduct exposes patients to potential harm and should not occur, has led the Tribunal to be satisfied Dr Holmes is unlikely to engage in such behaviour in the future. The Tribunal further finds that Dr Holmes has demonstrated that he is truly contrite. There was a genuine and deep sorrow for what he has done and an acknowledgement of the reasons why it was so wrong.

52 Dr Holmes attempted to bring the relationship to an end. He deserves some credit for attempting to terminate the relationship. Ultimately, he did terminate the doctor/patient relationship whilst the sexual relationship continued for a further period of 18 months. Although this in no way is an answer to the serious misconduct engaged in by Dr Holmes, it is an example of his belated realisation that the relationship was wrong. When the Deputy Chair asked Dr Holmes why he had not terminated the relationship with Patient A before 2006, despite discussing terminating the therapeutic relationship with her, Dr Holmes, in an emotional and distressed state said:

A. I felt as though I loved her. Simple as that, really. It wasn't just a dalliance or a sexual fling or anything like that, I really thought, I believed I could have helped her. Now, I know I didn't, and for that I apologise to her sincerely.

53 He also sought psychiatric assistance before the complaint was made to the HCCC in an attempt to independently try to better understand what had led him to engage in this unethical conduct. This is a significant matter.

54 In addition, the self education undertaken by Dr Holmes is quite impressive. It involves a comprehensive consideration of some texts by learned authors, one of whom is a highly regarded psychiatrist from the United States of America, Dr Glen Gabbard, who has written comprehensively on boundary transgressions.

55 It is also appropriate that the Tribunal takes into account that Dr Holmes admitted his misconduct at the first opportunity, which minimised the ongoing pain to the patient and resulted in her not being subjected to giving evidence and being cross-examined. In a career of 28 years, there have been no previous complaints about Dr Holmes.

56 The Medical Board was consulted by the HCCC in respect of this matter, but did not consider it necessary or appropriate to hold a s 66 Inquiry. This fact, in itself, is telling as it gives rise to a inference that at least the Medical Board did not perceive in the last 21 months that Dr Holmes was a risk to the community.

57 There was also the evidence of the pressures that Dr Holmes was under in light of the sad loss of his son. His wife suffered significant depression as a result of this and withdrew from their relationship. None of this, of course, leads to Dr Holmes being excused from his misconduct and he does not assert that he should be so excused. However, these are factors which have played a part in his failure to follow what he knew to be the appropriate course, that being, if he fell in love with a patient, he should have immediately terminated the therapeutic relationship and allowed a sufficient period of time to elapse before acting upon that love. Dr Holmes, misguidedly, thought that he was helping Patient A, and potentially caused her confusion and harm.

58 The Tribunal does not accept that these pressures were a significant contributing factor to his conduct. However, to the extent that they were a contributing factor, the Tribunal accepts that Dr Holmes is no longer under such pressures. He has remarried and has a young daughter.

59 A number of persons provided testimonials in support of Dr Holmes. They including medical practitioners currently in practice with him. All were advised of the complaint and that Dr Holmes had admitted the misconduct. They spoke highly of him as a competent, caring and highly respected practitioner. His conduct, which brought him before the Tribunal, in their opinion, was quite out of character with the person that they knew. Testimonials were also provided by other medical practitioners who do not work within the practice, nursing staff within the practice, the practice manager at the practice and patients. They all testified to his good character, but for this isolated but extended incidence of misconduct, his honesty, his soul searching in relation to his misconduct, his standards of performance as a general practitioner, and the tireless way in which he works as a medical practitioner. These testimonials speak glowingly of him and do not undermine or seek to understate the misconduct that he has engaged in, but they enable the Tribunal to have confidence that he will not engage in the conduct the subject of this complaint again.

60 Ms Stern provided the Tribunal with nine decisions of this Tribunal and one of the Supreme Court of Queensland, dealing with an appeal from a decision of the Medical Board of Queensland. The decisions were provided by counsel as an illustration of the penalties determined by the Tribunal in circumstances where practitioners have engaged in similar unethical behaviour and to support the HCCC submission that Dr Holmes should be deregistered. The decisions were:

Health Care Complaints Commission v Howe [2010] NSWMT 12
Re Dr Parajuli [2010] NSWMT 3
HCCC v Dr Mark Fairbrother [2008] NSWMT 5
HCCC v Dr Marcus Stoodley (Medical Tribunal, 5 November 2008)
In Re Dr B [2007] NSWMT 4
In Re Dr David John ELLIS [2006] NSWMT 9
In Re Dr Roger Steven Jones and the Medical Practice Act [2005] NSWMT 9
Re the Medical Practice Act 1992 and Dr. Stuart Anderson [2004] NSWMT 3
Medical Board of Queensland v Thurling [2003] QCA 518
In Re Dr Geoffrey Robert Abrahams and the Medical Practice Act (Medical Tribunal, 14 December 1990)

61 The Tribunal in these decisions imposed penalties ranging from deregistration, suspension for 12 months, the imposition of a substantial fine, in one case $25,000, to severe reprimands. A reading of these cases confirms that each complaint must be determined on its own particular facts and circumstances. The starting point for the assessment of an appropriate civil penalty is the objective seriousness of the unethical conduct. It includes the assessment that the Tribunal forms of the practitioner and the mitigating factors balanced against the paramount object of the Medical Practice Act which is the protection and the health and safety of the public.

62 The imposition of a civil penalty must recognise the need for deterrence, both personal and general. This is not to incorporate into the factors to be taken into account in assessing a civil penalty, the principles of sentencing in the criminal law, but rather, to recognise that civil penalties serve a role in enhancing social welfare by minimising the net social costs of wrongdoing and to fix a price on the contravention that is sufficient to deter repetition by the contravener: Australian Competition and Consumer Commission v Dataline.Net.Au Pty Ltd (in liquidation) [2007] FCAFC 146; (2007) 161 FCR 513 at [60].

63 The extent to which deterrence may feature in any penalty will, in the case of personal deterrence, depend on an assessment being made as to the risk of re-offending and in the case of general deterrence, an assessment being made as to the extent to which the penalty will act as a deterrent to other medical practitioners who might be likely to offend. In ACCC v Dateline.Net.Au Pty Ltd , the Full Bench of the Federal Court observed at [60] that in the context of an appeal in proceedings concerning the imposition of a pecuniary penalty for a contravention of the Trade Practices Act 1974 that "[t]he character of the contravention must be the central determinant of the penalty taking into account any ameliorating circumstances".

64 In relation to mitigating factors, Jessup J, in Ponzio v B & P Caelli Constructions Pty Ltd [2007] FCAFC 65; (2007) 158 FCR 543, considered the following factors to be "conventional" in assessing a civil penalty (at [138]), co-operation by the respondent with the [prosecutor]; no prior contravention of the Act; the respondent had reviewed his conduct and the fact and conduct of the legal proceedings itself had been costly to the respondent.

65 It follows that each case is different and that each of the above cases therefore do not demonstrate the limits of the Tribunal's discretion.

66 It is important, as the Tribunal has observed, that any penalty imposed by the Tribunal falls within the range for the objective seriousness of the particular misconduct, taking into account the subjective circumstances of the practitioner, and not whether it is more or less severe than some other penalty imposed upon another practitioner by the Tribunal.

67 The Tribunal was impressed by the evidence that Dr Holmes gave in acknowledging his wrongdoing, and secondly, achieving both an intellectual and real and genuine understanding and insight into what is required of him. The evidence set out earlier demonstrates that he has developed a significant insight into the matters that brought him before the Tribunal and led to a significant change of attitude. This has enabled the Tribunal to comfortably conclude that Dr Holmes would not again engage in this kind of wrongdoing in the future. We accept Dr Holmes' evidence that this has been a humbling experience for him.

68 The misconduct that Dr Holmes has admitted, and that the Tribunal has found established, is very serious. However, the evidence does not establish, unlike in some of the decisions relied upon by Ms Stern , that at the time the relationship commenced, Patient A was vulnerable and that Dr Holmes took advantage of such vulnerability. A further distinguishing factor is that the first occasion of sexual intercourse was neither planned, nor was it premeditated. In determining penalty, we are also mindful that the conduct continued for a lengthy period of time, during which Dr Holmes continued to treat Patient A, her children, and from 1998 to 2003, on occasions, her then husband.

69 In Prothonotary of Supreme Court of New South Wales v Ritchard (NSWCA, 31 July 1987, unreported) McHugh JA stated that if the Court is not persuaded the practitioner is permanently unfit to practice, then the proper order will usually be one of suspension or fine, instead of removal. In New South Wales Bar Association v Cummins [2001] NSWCA 284; (2001) 52 NSWLR 279, Spigelman CJ at [26] agreed with the observations of McHugh JA in Ritchard. We are not persuaded, for the reasons set out earlier in this decision, that the practitioner is permanently unfit to practice and that he should be deregistered.

70 The Tribunal has reached the conclusion that Dr Holmes' conduct deserves to be denounced in protection of the public and the standing and reputation of the medical profession. It is the view of the Tribunal that this can be achieved if the practitioner is suspended for a period of 12 months from practising medicine. The Tribunal also proposes to add Health, Education and Medical Ethics conditions to Dr Holmes' registration.

Costs

71 The Tribunal's power and discretion in relation to costs was reviewed in NSW Medical Board v Dinakar [2009] NSWMT 8. The general rule is that in the absence of disentitling conduct by the successful party, the Tribunal will exercise its discretion by compensating the successful party through an order for costs. The HCCC sought an order for costs. No submission in opposition to this request was put by Mr Lynch . Dr Holmes is ordered to pay the HCCC's costs of these proceedings on the ordinary basis, as defined in Sch 3 of the Civil Procedure Act 2005.

ORDERS

72 The orders that we make are:

1. Pursuant to s 64(1)(b) of the Medical Practice Act 1992, the Tribunal suspends Dr John Gerard Holmes from practising as a medical practitioner for a period of 12 months.
2. Dr Holmes is to pay the HCCC's costs of these proceedings, on the ordinary basis as defined in Sch 3 of the Civil Procedure Act 2005.
3. Pursuant to s 61(1)(c) of the Medical Practice Act, the Tribunal directs the following conditions be imposed upon Dr Holmes' registration:
Health
3.1 to continue to attend for treatment with his psychiatrist, Dr Derek Johns, at his own costs, at a frequency to be determined by Dr Johns;
3.2 to authorise Dr Johns to inform the Medical Council of New South Wales of any failure to attend for treatment, termination of treatment, or if there is a significant change in health status.
Education and Medical Ethics
4. To complete at his own expense, the course on Medical Ethics conducted in distance mode by the Department of General Practice, Monash University, Victoria. The course must be completed during Dr Holmes' period of suspension.
4.1 Within two weeks of completing the Medical Ethics course, to provide documentary evidence to the Medical Council of New South Wales that he has satisfactorily completed the course.
4.2 Within eight weeks of the date of this decision, the practitioner must provide evidence to the New South Wales Medical Council that he has enrolled in the Medical Ethics course.
5. These conditions may be varied, amended or removed at the discretion of the New South Wales Medical Council.
(signed and sealed)
His Honour Justice Staff Dr Saw-Hooi Toh

Dr Vasco De Carvalho Dr Judith Mair