Health Care Complaints Commission v Howe
[2010] NSWMT 12
•30 September 2010
New South Wales
Medical Tribunal
CITATION: Health Care Complaints Commission v Howe [2010] NSWMT 12 TRIBUNAL: Medical Tribunal PARTIES: Health Care Complaints Commission (Complainant)
Dr Gordon Howe (Respondent)FILE NUMBER(S): 40026 of 2009 CORAM: Staff J - Hely, Dr J - Christie, Dr A - Smith, Mr RJ CATCHWORDS: PROFESSIONAL MISCONDUCT - personal and intimate relationship with patient - practitioner inappropriately prescribed Ritalin without authority to prescribe - professional misconduct requiring a severe reprimand and the imposition of conditions on his registration to minimise the risk of recurrence LEGISLATION CITED: Civil Procedure Act 2005
Health Care Complaints Act 1993
Medical Practice Act 1992CASES CITED: Briginshaw v Briginshaw & Anor (1938) 60 CLR 336;
Childs v Walton [1990] NSWCA 41;
Health Care Complaints Commission v Karalasingham [2007] NSWCA 267;
Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630;
NSW Medical Board v Dinakar [2009] NSWMT 8;
Prakash v Health Care Complaints Commission [2006] NSWCA 153;
Re Dr Parajuli [2010] NSWMT 3;
Saville v Health Care Complaints Commission & Anor [2006] NSWCA 298DATES OF HEARING: 6, 7 September 2010 DATE OF JUDGMENT: 30 September 2010 LEGAL REPRESENTATIVES: Ms G Furness of counsel (Complainant)
Health Care Complaints Commission
Ms A Moen of counsel (Respondent)ORDERS: 1. Dr Howe be severely reprimanded for entering into a personal and intimate relationship with a patient from 23 March 2006 to late November 2006; 2. Dr Howe be severely reprimanded for providing Patient A with six bottles of Ritalin for use by her daughter, in circumstances where he did not hold an authority to prescribe Ritalin to the patient's daughter and where another medical practitioner held such an authority and the patient's daughter was a child; 3. Dr Howe 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; 4. The conditions set out in the Annexure to this Determination are to be placed on Dr Howe's registration. The Medical Council of New South Wales is the appropriate review body for the purpose of any review of these conditions. It may remove or vary the conditions at such time and in such a way as it considers appropriate; Pursuant to cl 6 of Sch 2 of the Medical Practice Act 1992, the Tribunal has made a non publication order in respect of the name of the patient referred to in the proceedings.
JUDGMENT:
DEPUTY CHAIR: Staff J
Dr J Hely
Dr A Christie
Mr R Smith
Matter No 40026 of 2009
HEALTH CARE COMPLAINTS COMMISSION v GORDON HOWE
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 NAMES OF THE PATIENTS OR OF ANY MATERIAL CAPABLE OF IDENTIFYING THEM.
1 By complaint dated 22 June 2009, the Health Care Complaints Commission (the "HCCC"), following consultation with the New South Wales Medical Board (now known as the "Medical Council of New South Wales"), in accordance with s 39(2) and s 90B(3) of the Health Care Complaints Act 1993 (the "HCC Act") and s 51(1) of the Medical Practice Act 1992 (the "Act"), alleged that Dr Gordon Christopher Howe, a registered medical practitioner, has been guilty of unsatisfactory professional conduct under s 36 of the Act and/or professional misconduct under s 37 of the Act, in that he had:
(ii) has been guilty of improper or unethical conduct relating to the practice or purported practice of medicine.(i) engaged in conduct that demonstrates that the knowledge 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; and/or
2 The particulars of the practitioner's alleged conduct which is the subject of the complaint were:
1. At the relevant time, the practitioner practised as a plastic and reconstructive surgeon.
2. The practitioner treated Patient A between 16 May 2002 and 17 May 2006.
3. On 24 February 2006 during a consultation with Patient A, the practitioner disclosed personal information about himself to Patient A.
4. On 22 March 2006 the practitioner performed a procedure on Patient A to remove face lesions at which time he performed a brow lift.
5. On 23 March 2006 the practitioner visited Patient A at her home, during which visit, he disclosed personal information about himself to Patient A.
6. From 23 March 2006 until late November 2006 the practitioner engaged in a personal and intimate relationship with Patient A.
7. On 17 May 2006 the practitioner performed a breast implant procedure on Patient A.
8. Between 6 June 2006 and 13 June 2006 the practitioner entered into a financial arrangement with Patient A whereby a motor vehicle was leased in the name of the practitioner, registered in the name of Patient A, and the practitioner paid the lease payments.
10. By on or about February 2007 the practitioner provided Patient A with six bottles of Ritalin for use by Patient A's daughter, in circumstances where the practitioner did not hold an authority to prescribe Ritalin to Patient A's daughter, another medical practitioner held such an authority and Patient A's daughter was a child.9. On 4 January 2007 the practitioner grabbed Patient A's breast with his hand and twisted.
3 The Tribunal, pursuant to Sch 2, cl 5(2)(a) of the Act, having regard to evidence given during the proceedings, determined that another complaint could have been made against the practitioner. That particular of complaint is reflected in particular 10, which replaced particular 10 as contained in the original complaint.
4 At the commencement of the proceedings, Ms A Moen of counsel, who appeared for the practitioner, admitted particulars 1 - 8. Particular 10 was admitted, except in respect of the number of bottles of Ritalin provided by the practitioner. Particular 9 was denied.
5 The practitioner conceded that on 27 May 2006 an incident of attempted sexual intercourse occurred with Patient A, although not particularised in the particulars of complaint. Ms Moen submitted that the incident in and of itself constituted unsatisfactory professional conduct in circumstances where the incident occurred 10 days after the practitioner had performed a breast implant procedure on Patient A (particular 7).
6 Therefore, the issues in the proceedings were, firstly, whether on 4 January 2007 the practitioner grabbed Patient A's breast with his hand and twisted; secondly, the nature and extent of the personal and intimate relationship with Patient A and whether such conduct amounted to professional misconduct, or unsatisfactory professional conduct, and thirdly, the number of bottles provided by the practitioner to Patient A.
The practitioner
7 The practitioner is 67 years of age. He graduated in Medicine and Surgery from the University of Sydney in 1970 and trained in plastic surgery in England, South Africa and Australia, obtaining specialist recognition in 1978. He has been a consultant plastic surgeon in Newcastle since 1978. The practitioner has also been a visiting medical officer at Newcastle Hospital, the Newcastle Mater Misericordiae Hospital and Newcastle Private Hospital. He has also practised at a day surgery centre.
8 The practitioner founded the Newcastle Melanoma Unit and was its Director between 1980 and 1998. He was President of the Hunter Branch of the Australian Medical Association between 1993 and 1994. The practitioner stated that about 10 per cent of his practice has involved cosmetic work and 90 per cent other plastic surgery, mainly skin cancers.
Patient A
9 Patient A, who is the subject of the complaint, is 47 years of age and a married mother of 5 children. She first saw the practitioner when she was approximately 24 years of age to have a cyst removed on her back. In or about November 1996, she consulted the practitioner for a breast augmentation after the birth of twins. Following this procedure, a personal relationship developed between the practitioner and Patient A. In his evidence, the practitioner described having a crush on Patient A.
10 The practitioner next treated Patient A in 2002 for the removal of skin cancers. The series of events that are the subject of this complaint began in 2006.
The conduct complained of by Patient A
11 Patient A gave evidence before the Tribunal. The Tribunal has already recorded that the complaint has been largely admitted by the practitioner.
12 From 23 March 2006 until late November 2006, the practitioner engaged in a personal and intimate relationship with Patient A. That relationship involved the practitioner revealing personal information concerning himself and his family situation to Patient A whilst she was a patient. The practitioner either rang or visited Patient A at her home on a daily basis. He brought gifts for Patient A and her children and provided groceries, he took Patient A to dinners including a medical dinner, and he took Patient A on three overseas trips, with Patient A's children accompanying them on one trip.
13 The practitioner also entered into a financial arrangement with Patient A in respect of a motor vehicle which was leased in the name of the practitioner and registered in the name of Patient A. The practitioner paid the lease repayments. In January 2007, after the relationship had ceased, Patient A decided to sell the car as she could not afford the running costs. She found that the car had an encumbrance on it and went to see the practitioner.
14 On 4 January 2007, Patient A attended the practitioner's home. Her evidence was that she was very distraught. In her complaint to the HCCC dated 11 September 2007, Patient A stated that the practitioner advised her that they could make the problem (in respect of the car) go away if they resumed their relationship. Patient A's evidence was that the practitioner said he would agree to lift the encumbrance on the vehicle if she spent a night with him at his home. Patient A says she started to get upset again and the practitioner "reached over and put one arm behind me and with the other, he grabbed my breast really hard and twisted." She pushed him away and said "don't do that" and he said "they're mine I own these." Patient A left the house. Her evidence was that she felt degraded and disgusted that the practitioner had touched her. Upon arriving at her home, she told a friend who was visiting from Queensland what had happened. He advised her to report the matter immediately to the Police, which she did. Patient A attended Newcastle Police Station on the same day and made a complaint. However, she advised the police officer that she wished to consider whether she should proceed with the charge because of the potential serious implications for the practitioner. Her evidence was she agonised about this matter for a week before deciding to proceed with the complaint. She provided a statement to the police dated 15 January 2007. Her evidence was that the matter did not proceed to Court because the practitioner had a witness (his gardener), who the practitioner said would give evidence that the incident did not occur.
15 In cross-examination, Patient A said that the practitioner's witness could not have seen what occurred because he was working in the practitioner's front garden at the time of the incident and Patient A and the practitioner were upstairs at the back of the practitioner's house. Patient A contended that because of the financial situation surrounding the motor vehicle, she ultimately had to sell her house. In light of the admissions, it is not necessary to further detail the circumstances surrounding the motor vehicle.
The Ritalin issue
16 The practitioner supplied Ritalin to Patient A to be given to her daughter. Patient A's daughter had been prescribed Dexamphetamine by her treating doctor since she was two years of age. Patient A's evidence was that the practitioner initially provided her with one bottle of Ritalin. He suggested that she change her daughter's medication after reading a newspaper article about the effects of long acting Ritalin. The practitioner gave her a further two bottles of Ritalin and when these had been used, he gave her a further bottle of Ritalin which had been prescribed for the practitioner's nephew by another doctor.
17 Patient A said that she never intended to suggest there were six bottles of Ritalin provided by the practitioner prior to January 2007. If she had suggested that, she said it was a mistake. She said she received four bottles before 5 January 2007 and then some time thereafter in either February or March 2007 she found two further bottles of Ritalin on her doorstep. They had arrived in post packet with a letter attached. Patient A could not be precise as to the date of their arrival, but thought that the two bottles arrived after she had made a complaint to the police and had no further contact with the practitioner. She threw these away because her daughter had recommenced taking Dexamphetamine.
The practitioner's evidence
18 The practitioner provided a statement dated 22 January 2010 to the Tribunal and also gave evidence before the Tribunal. He acknowledged that he had been involved in a sexual relationship with Patient A and that his conduct was unethical and amounted to a boundary violation in relation to Patient A. The practitioner described the relationship as "one of beyond friendship, it was a relationship which was of a personal nature which was an agreement not to have a sexual relationship in it but there was a violation of that."
19 The practitioner agreed during cross-examination that on one occasion there was an attempt to have a sexual relationship and that his feelings for Patient A were "feelings that one would have in a sexual relationship." The practitioner acknowledged that the relationship as a whole as it developed was a violation of the boundaries of a patient/doctor relationship. The practitioner's evidence was that a relationship started in June 2006, though he was prepared to concede that a "preliminary relationship" commenced before that date.
20 The practitioner said that he could not remember the number of bottles of Ritalin that he provided to Patient A, but accepted that it "could have been four." His evidence was that he obtained the Ritalin from the drug supplier that he dealt with at his day care centre. The practitioner agreed that he provided a bottle of Ritalin that had been prescribed for his nephew to Patient A after the relationship had ceased.
21 The practitioner stated in his written response to the complaint that he had bought a saxophone for one of Patient A's sons. During cross-examination, the practitioner accepted that this was incorrect and that his sister, at his request, had given him a saxophone which he gave to Patient A's son. He explained that this was "a dictation error which I did not pick up." He accepted that this was misleading.
22 The practitioner said that on 4 January 2007, Patient A came to his house. The practitioner explained that Patient A was upset because she thought the vehicle he bought for her was unencumbered and had discovered this was not the case. She asked him to pay out the lease on the car. He denied that any dispute arose and said that Patient A left amicably after he said he would look into the legalities of the issue. He disagreed that Patient A was angry. He said she asked him to write a letter so that she could provide it to a car dealer and the police. It is unnecessary to expand on the reasons for this. In the letter, the practitioner stated that both he and Patient A were unaware that the car was encumbered. The practitioner accepted that neither of these statements were true. The practitioner denied that he wrote the letter because he was ashamed about his behaviour on 4 January 2007. He reaffirmed no misbehaviour occurred. The practitioner acknowledged that he wrote a letter which contained two known lies that could have had legal consequences, "just because Patient A was upset." The practitioner "absolutely and categorically denied" any physical touching of Patient A on 4 January 2007.
23 On 6 February 2007, the practitioner voluntarily attended Charlestown Police Station. The practitioner provided a statement to the police in response to the complaint made by Patient A. On advice from his solicitor, he declined to answer any questions regarding whether there had been sexual activity between himself and Patient A. He was advised only to respond to questions about the motor vehicle.
24 The practitioner acknowledged that as a result of therapy he had undertaken with Dr Jonathan Phillips, a consultant psychiatrist, he had been given an insight into himself and a better understanding of himself. He said he realised that his relationship with Patient A was wrong, because it was not a relationship that was separate from his medical treatment of her.
25 In response to a question whether he was still seeing patients who attend for mammoplasty procedures, the practitioner said he was not and gave the following evidence:
Q. Why not?
A. Because I felt it was, I felt it was an indication of my concern and goodwill that for those group of patients which generally are in a high risk group would be - I would indicate that I was prepared to take a financial sacrifice in the goodwill of the - my indication of concern and commitment to being a good doctor, that I would not see those patients.
Q. Higher risk of what?
A Well, the risk of breach of medical ethics and what we've been talking about.
Q. A higher risk of you breaching medical ethics in relation to them?
A. There's no risk of me breaching it, it was to take away - it was to take away the perception that there was a risk.
Q. Were you advised to do this or did you decide to do it yourself?
A. No, I decided to do it myself. I was asked what would be appropriate, would it be appropriate to do, to do anything to indicate your goodwill, and I said I thought that this would be, this would be an indication of my goodwill.
Q. Being that you were prepared to sacrifice financially, is that right?
A. That was a component of it.
Q. But you yourself don't believe there is any risk to those patients from you, do you?
A. No.
Q. Now do you have a chaperone present when you're seeing female patients for other cosmetic procedures?
A. I endeavour to have someone there, yes, I do.
Q. When you say "endeavour", do I take it to mean that you don't succeed on every occasion in having a chaperone present?
A. I have, I have a chaperone. The difficulty, if I might speak to the Tribunal, the difficulty is with what is classified as cosmetic. Cosmetic surgery I don't do a lot of anyway, I'm mainly a cancer surgeon, but I do a lot of breast reductions, and have down (sic). And breast reductions are not - they're covered under the Medical Benefits Schedule and they're not classified as cosmetic. So the same as rhinoplasties, bat ears and some of those sorts of things, they're not classified as cosmetic, although loosely they are covered by it, people put them in that category, but medically those things which are covered under the Medical Benefits Schedule are not cosmetic, so it's a difficult, a difficult one.
Q. Why do you have a chaperone present?
A. Because in the treatment phase it was considered an indication that I was endeavouring to do the right thing and doing the right thing.
Q. So the idea was not initiated by yourself?Q. Who considered it such?
A. With discussion with the solicitors and - with discussion with the solicitors.
A. No.
26 The practitioner continues to carry out plastic surgery and reconstruction surgery in his specialist practice where he works three and a half days per week. He also works one day per week carrying out plastic procedures on patients under general anaesthetic in a day surgery and one day per fortnight in a major hospital. The practitioner said that he had been endeavouring for the past year and a half to sell the premises in which his specialist practice operates. He owns the building and all the facilities, including the software and the hardware that make up the practice. He explained that he is not attempting to sell the goodwill of the practice as this no longer occurs. His intention is to remain in practice as a plastic and reconstructive surgeon until such time as he sells his practice.
27 The practitioner stated during his oral evidence that when he sells his practice he intends to continue to practise medicine doing locum work either here in Australia, in New Zealand, or in the United Kingdom. He does not intend to give up his registration. In his written statement, he informed the Tribunal that he was retiring from medical practice at the end of 2010. As we have observed, his oral evidence was inconsistent with this statement.
28 The practitioner accepted that if the Tribunal imposed a condition that a chaperone be in attendance when he saw a female patient that he would of course comply with such a condition. The practitioner confirmed that he continues to consult Dr Phillips on a monthly basis.
Determination
29 In light of the admissions and evidence of the practitioner in respect of the Ritalin issue which the Tribunal will deal with shortly, there remains only one allegation that was denied by the practitioner, that being, that on 4 January 2007, the practitioner grabbed Patient A's breast with his hand and twisted (particular 9).
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. Such a finding can only be made after careful scrutiny of the evidence, particularly in circumstances where it is word against word. The practitioner's position was one of denial.
Particular 9
31 Ms Moen submitted that in considering which version of events to prefer, the Tribunal would find Patient A was an unreliable witness for the following reasons:
(i) the statement to the police occurred in the context of a relationship breakdown;
(ii) Patient A had a level of animosity in respect of the motor vehicle which went well beyond what was normal;
(iii) Patient A made a number of serious allegations during cross-examination that undermined her credit. These included that the practitioner "paid off a witness" and that the police agreed with her when she said that the practitioner "probably paid off a witness." Counsel contended that as these two allegations were so inherently improbable that if Patient A was prepared to indicate that level of allegation about the practitioner, it was possible she would be prepared to make the allegation in respect of the assault on her in January 2007;
(iv) the allegation that the practitioner had falsified documents in relation to legal proceedings;
(v) Patient A did not pursue the complaint with the police;
(vi) the practitioner voluntarily provided a statement to the police denying the allegation;
(viii) Patient A was prepared to withdraw the complaint if the issue in respect of the motor vehicle was resolved which was conveyed to the practitioner by her solicitor. However, the practitioner knowing that that opportunity was available, did not embrace it.(vii) Patient A returned to the practitioner's house the following day and although being advised to take a witness with her, took one of her children who she left in the car whilst she spoke to the practitioner. It was submitted that this conduct was consistent with the fact that nothing happened on 4 January 2007 that caused her concern;
32 Counsel submitted in respect of the last factor, that this was indicative that the practitioner did not assault Patient A on 4 January 2007 and was therefore not afraid of any consequences flowing from any proceedings or any investigation that may arise in respect of that allegation.
33 In the Tribunal's view, although Patient A was very emotional and upset when she gave her evidence, the Tribunal found her to be a credible and convincing witness who had no reason to fabricate the events of 4 January 2007.
34 Patient A admitted that had an agreement been reached with the practitioner in respect of the motor vehicle, she would have withdrawn her complaint. Weight must be given to the evidence of Patient A that she made a contemporaneous complaint to a friend who was staying with her at that time and to the police on 4 January 2007 about the practitioner's conduct. The friend was not called to give evidence.
35 However, weight must also be given to the practitioner's admission in respect of the most serious aspect of the complaint (the relationship), the particulars, his volunteering to provide a statement to the police and his consistent denial of the allegation of 4 January 2007.
36 Both Patient A and the practitioner on occasions exaggerated and misstated their evidence. For example, Patient A's evidence that the practitioner paid off a witness and that the police agreed with her in this respect seems unlikely to have occurred. Similarly, the practitioner's evidence that he purchased a saxophone for one of Patient A's children was false. In addition, he created a false document in respect of the motor vehicle.
37 Balancing all of these factors, together with the Tribunal's assessment of the demeanour of the practitioner and Patient A when giving their evidence, has resulted in the Tribunal being unable to reach the required level of comfortable satisfaction that the practitioner engaged in the conduct complained of by Patient A on 4 January 2007. It follows that particular 9 is not established.
Particular 10 - Ritalin issue
38 Turning to the allegation in respect of the provision of Ritalin to Patient A, the oral evidence given by the practitioner was, in broad terms, consistent with the amended particular. Although the practitioner's recollection as to the number of bottles was imperfect, his oral evidence was inconsistent with the statement made by him to the HCCC that he had provided only one month's supply of Ritalin to Patient A. It was common ground that one month's supply represented one bottle. Patient A's account of the provision of Ritalin was that she was provided with a total of six bottles by on or about February 2007. Her evidence was clear and convincing in respect of this issue.
39 Ms G Furness of counsel, who appeared for the HCCC, submitted that the Tribunal would be comfortably satisfied that particular 10 had been made out primarily by reference to the evidence of Patient A and the evidence given by the practitioner. Ms Moen did not cavil with this submission and conceded from the outset of the proceedings that if this particular was established, that such conduct was unsatisfactory professional conduct. Ms Moen accepted that the amended particular had been made out, noting that it extended through to February 2007.
40 The Tribunal is comfortably satisfied that this particular has been made out and finds that the conduct of the practitioner in providing Patient A with six bottles of Ritalin for use by her daughter in circumstances where he did not hold an authority to prescribe Ritalin to Patient A's daughter, is unsatisfactory professional conduct.
Whether balance of conduct is unsatisfactory professional conduct or professional misconduct
41 For the purposes of this 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.
42 For the purposes of this Act, "professional misconduct" of a registered medical practitioner means:
(a) unsatisfactory professional conduct, or37 Meaning of "professional misconduct"
(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.
43 The critical complaint against the practitioner is that he engaged in a personal and intimate relationship with Patient A from 23 March 2006 until late November 2006, during which time he performed a breast implant procedure on her. In light of the admission of this particular, Ms Furness submitted that it amounted to professional misconduct. Ms Furness relied on the New South Wales Medical Board Code of Professional Conduct July 2005, which 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....
44 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.
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.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.
45 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.
- ...
46 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.
47 The HCCC tendered two expert reports from Dr Murray Stapleton, Hand, Plastic & Reconstructive Surgeon and Dr Cholm W Williams, Plastic, Reconstructive & Aesthetic Surgeon. Each of these practitioners have expertise in the same specialty area of medicine as the practitioner. They were not required for cross-examination.
48 Dr Stapleton, in his report, concluded that he did not believe the practitioner had departed from the standards required of him and that no criticism could be directed to the practitioner. The basis for this conclusion was that on the material provided to Dr Stapleton, there had been only one attempt made at sexual intercourse. This was a matter he noted that was not commented upon in the material provided to him and which he believed, incorrectly, was denied by the practitioner. In his view, given that there was no evidence of a sexual relationship, there was no cause for a complaint of sexual misconduct against the practitioner.
49 Dr Williams, after noting that there was a major discrepancy in the chronology and other details given by Patient A and the practitioner, the veracity of which he could not assess, reached a similar conclusion to Dr Stapleton that "the personal relationship which developed between [the practitioner] and [Patient A] is not in my opinion a cause for concern in relation to his professional standards in his provision of plastic surgical services on a doctor/patient basis, but must be seen in the context of the exceeding potential complexity of all interpersonal relationships." Dr Williams believed that "it was very inappropriate for him to provide ... Ritalin to her child," although he was "not aware of the details of any official regulation which may apply to the prescription of this drug."
50 The practitioner relied upon a report of Dr Phillips dated 17 August 2010. The practitioner's evidence was that he gave an accurate and complete account of his relationship with Patient A to Dr Phillips for the purposes of obtaining a report to rely upon before this Tribunal. Dr Phillips noted that the practitioner had sought treatment acknowledging that he had suffered a significant unstable mental state for some time prior to 2010, and also to learn why he had become involved in a sexual relationship with a particular patient. Dr Phillips observed that, on his understanding, an intimate relationship with Patient A began at or around 2006.
51 Dr Phillips further stated:
- ... Additionally, you knew the relationship with [Patient A] was unethical. At no time did you pretend otherwise, or try to rationalise the liaison.
...
To your credit you recognised from an early time in the course of your therapy that your actions were significantly to the detriment of [Patient A]. Additionally, you have expressed contrition in relation to your wrong doing. I accept your contrition as being real.
...
On my assessment, your boundary violation occurred with a single patient, and at a time in your life when you almost certainly were experiencing a depressive disorder which rendered you vulnerable to act in an unethical manner (which you do not deny).
- You no longer suffer from any disorder likely to put you at risk. You have not offended in relation to any other patient, or ex-patient. You have been honest about your transgressions. You have a comprehensive understanding of the high ethical standards which must be maintained by a medical practitioner. You are contrite. Taking all matters into consideration, you are highly unlikely to offend again.
- Notwithstanding the above, you will understand that the Tribunal has to ensure protection of the community. I will put a case to the Tribunal (if requested) that deregistration serves no particular importance in your case. I stress, however, that I will not argue against the usual safeguards which might be raised at the time of the hearing.
52 Ms Moen submitted that the Tribunal should assess the relationship between the practitioner and Patient A on the basis that there was only one sexual incident (27 May 2006). In these circumstances, counsel contended the Tribunal would be entitled to find that the practitioner had engaged in unsatisfactory professional conduct. It was submitted such conduct was an aberration. Ms Moen also emphasised that the practitioner had admitted that a doctor/patient relationship existed between 16 March 2002 and 17 May 2006. Although acknowledging that there may have been a need for further consultations after the procedure on 17 May 2006, Ms Moen , somewhat optimistically, submitted that the Tribunal should not find that the doctor/patient relationship was still on foot some 10 days later when the sexual incident occurred. It is unnecessary to deal in any detail with this submission, as the clinical records of the practitioner include a letter dated 28 May 2006 forwarded to Dr Julianne Schwenke, Patient A's general practitioner, from the practitioner, which read:
- "I reviewed [Patient A] today following her recent re-augmentation mammoplasty performed on 17.5.06 - she has settled down well and should get a good result. I will keep you advised."
53 The Tribunal finds that a doctor/patient relationship continued to exist between the practitioner and Patient A after 17 May 2006 and beyond 27 May 2006. The practitioner's evidence was that he had become involved in a sexual relationship with Patient A.
54 The conclusions of the experts (Dr Stapleton and Dr Williams) that the conduct of the practitioner did not warrant criticism was based on a view that because sexual intercourse had not occurred, therefore the practitioner had not engaged in a sexual relationship and/or misconduct.
55 The Tribunal is not attracted to such a narrow definition of a sexual relationship. It is at odds with the conclusion reached by Dr Phillips and that of the practitioner. Furthermore, in the Tribunal's view, in reaching a conclusion in respect of whether a practitioner has engaged in a sexual relationship with a patient, or how a relationship between a doctor and patient should be characterised, each case will turn on its own factual circumstances.
56 As we have already determined, upon an analysis of the evidence, the proper characterisation of the relationship between the practitioner and Patient A was that they engaged in a sexual relationship. In the Tribunal's view, there is no basis for making any distinction between the nature of the relationship that the practitioner had with Patient A and the relationships which are intended to be captured by the policies referred to earlier in these reasons which prohibit sexual relationships between patients and doctors and provide that a practitioner who engages in "sexual activity with a current patient" is guilty of professional misconduct.
Disposition
57 The Tribunal is, therefore, comfortably satisfied that the practitioner's conduct was significantly below the standard reasonably expected of a practitioner and was improper and unethical. We find the practitioner guilty of professional misconduct.
58 In such circumstances and findings by the Tribunal, the HCCC's position was that, based on the documentary material filed by the practitioner, it did not seek suspension and/or deregistration of the practitioner.
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.
60 The Tribunal was concerned with the practitioner's lack of insight into his behaviour and his lack of contrition during the proceedings. We are mindful that he expressed contrition to Dr Phillips. His evidence was that it was only after attending therapy sessions with Dr Phillips that he developed an insight into himself, the relationship with Patient A and that the relationship was wrong. The practitioner's evidence was less than compelling in respect of his understanding of what he had done and the effect it had on Patient A. The only evidence that the practitioner was able to give in respect of the effect that his conduct may have had on Patient A was that she had told him during the first five or six months of their relationship, that she was the happiest she had ever been and was absolutely supported. In his written statement, the practitioner stated that he did not consider he exploited Patient A and that he was vulnerable at the time of the relationship with Patient A because of a marriage breakdown. This, he said, was a factor in respect of his inappropriate conduct, but not an excuse. During his oral evidence, his answers to when he thought the relationship with Patient A had begun were vague, and at times, evasive. The practitioner used expressions such as "it was a matter of when [the] relationship, the degree of relationship"; "when's [sic] it classified as a, you know, relationship"; "I concede that the preliminary, early relationship started before that [June 2006]."
61 The practitioner gave the following further evidence during cross-examination, about the relationship:
Q. Doctor, what did you do that you believe is a boundary violation with patient A?
A. I engaged in a relationship whilst treating the patient.
Q. What sort of relationship?
A. It was a relationship which involved - I'm not conversant with the technicalities of the words.
Q. In your words doctor, if you use your words to describe your relationship?
A. The relationship was one of beyond friendship, it was a relationship which was of a personal nature which was an agreement not to have a sexual relationship in it but there was a violation of that.
Q. You did on occasion have sexual relations with patient A, didn't you?
A. On one occasion there was an attempt at a sexual relationship, yes.
Q. You wished to have a sexual relationship with her, did you not?
A. I couldn't have a sexual relationship.
Q. Your feelings for her were feelings that one would have in a sexual relationship, is that right?
A. True.
Q. When was it doctor that you first understood that your relationship with patient A was wrong?
A. I'm not trying to evade the question, I just - probably December, it was a realisation when I took my problems to Dr Phillips.
Q. Now you first saw Dr Phillips on 22 January 2010?Q. So you - I am sorry doctor, I didn't mean to interrupt you?
A. Yes. I said when I took my problems to Dr Phillips.
A. Yes.
62 Furthermore, the practitioner stated that he was no longer performing mammoplasty procedures and gave an explanation for this which we have set out earlier in these reasons at [25]. His explanation for having a chaperone present when he sees female patients for cosmetic procedures was that it had been suggested by his solicitors. However, in cross-examination, the practitioner confirmed he continued to see patients for reduction mammoplasties. The practitioner's evidence was that he considers augmentation mammoplasty as a cosmetic procedure because there is no Medicare refund available for this procedure. However, reduction mammoplasty is not considered to be a cosmetic procedure by Medicare who provide a benefit for this procedure. The distinction is important because, in the Tribunal's view, it indicated a further lack of insight by the practitioner into his conduct, the subject of the complaint. He explained his decision on the basis that he understood that "the risk may be higher in me seeing female patients who require cosmetic procedures." In circumstances where his solicitors had suggested that he no longer perform mammoplasty procedures, the distinction offered by the practitioner was disingenuous. Analysed this way, it is clear that the practitioner's decision was not designed to reduce the risk of a doctor/patient relationship.
63 In light of the practitioner's evidence of his understanding of boundary violations of the doctor/patient relationship, the Tribunal is not convinced that the practitioner understands and has a clear insight into the boundary violation that occurred with Patient A. Although Dr Phillips referred to the practitioner's insight into his inappropriate conduct, the Tribunal, after carefully analysing the practitioner's oral evidence, is unable to share Dr Phillips' opinion at this time. It is for these reasons that we propose to impose counselling, health and practice conditions upon the practitioner. We note that the practitioner agreed to the proposed counselling and health conditions, although he preferred not to have any restrictions placed on the carrying out of any procedures undertaken by him.
64 The Tribunal has taken into account the unblemished record of the practitioner, his age and his desire to sell his practice. However, the Tribunal notes that he has stated a desire to continue working in Australia or overseas in a locum capacity when he sells his practice.
65 Ms Moen submitted that the Tribunal should find that the practitioner engaged in unsatisfactory professional conduct, but accepted that if the Tribunal found, as it has, that the practitioner engaged in a sexual relationship with Patient A, and that the practitioner was guilty of professional misconduct, she could put nothing to the Tribunal to dissuade it from not issuing a severe reprimand to the practitioner.
66 The Tribunal considers that in all the circumstances, the practitioner's misconduct requires that he be severely reprimanded and that conditions be placed on his registration to minimise the risk of a recurrence of the conduct the subject of the complaint.
67 For the foregoing reasons, the Tribunal considers that conditions should be imposed upon the practitioner's registration in respect of counselling, health and practice conditions. Such conditions are imposed on the basis that they may be reviewed, amended or varied by the Medical Council of New South Wales as it considers appropriate. The conditions are set out in the annexure to this Determination.
Costs
68 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 in the event that it was successful. No submission in opposition to this request was put by Ms Moen . Dr Howe 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
1. Dr Howe be severely reprimanded for entering into a personal and intimate relationship with a patient from 23 March 2006 to late November 2006.
2. Dr Howe be severely reprimanded for providing Patient A with six bottles of Ritalin for use by her daughter, in circumstances where he did not hold an authority to prescribe Ritalin to the patient's daughter and where another medical practitioner held such an authority and the patient's daughter was a child.
4. The conditions set out in the Annexure to this Determination are to be placed on Dr Howe's registration. The Medical Council of New South Wales is the appropriate review body for the purpose of any review of these conditions. It may remove or vary the conditions at such time and in such a way as it considers appropriate.3. Dr Howe 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.
Pursuant to cl 6 of Sch 2 of the Medical Practice Act 1992, the Tribunal has made a non publication order in respect of the name of the patient referred to in the proceedings.
Annexure
Counselling conditions
2. Dr Howe is to authorise Dr Phillips to:
1. Dr Howe is to attend upon Dr Jonathan Phillips, Consultant Psychiatrist, for the purpose of counselling on a monthly basis. The next consultation should occur no later than 28 days from the date of this Determination.
- (i) provide to the Medical Council of New South Wales a report of Dr Howe's progress in approved format on a six monthly basis;
- (ii) notify the Medical Council of New South Wales immediately if there are any concerns or issues in relation to Dr Howe's compliance with any condition, or if the counselling relationship ceases:
- (iii) in the event that Dr Phillips is no longer willing or able to continue to provide counselling, Dr Howe is to notify the name of another counsellor for approval by the Medical Council of New South Wales within 28 days of the cessation of the original counselling relationship;
- (iv) all expenses associated with Dr Phillips or another counsellor as set out in these conditions are to be met by Dr Howe.
Health condition
1. Dr Howe is to undertake a neuropsychometric assessment. Such assessment is to be performed by a neuropsychologist who has experience in testing medical practitioners.
2. Dr Howe is to confer with the Medical Council of New South Wales and agree upon a neuropsychologist to undertake the assessment.
3. Such assessment is to be undertaken within 28 days of the date of this Determination.
5. All expenses associated with the neuropsychometric testing are to be met by Dr Howe.4. The Medical Council of New South Wales in its ordinary course of business is to respond to the findings of the report.
Practice conditions
2. That Dr Howe shall forward to the Medical Council of New South Wales within seven days of the end of each calendar month, a report listing all female patients examined 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:
1. That whenever Dr Howe examines or treats any female patient, an adult third person must be present at all times. Such person may be a family member of the patient.
§ printed notation of the patient's name and chaperone;
§ the contemporaneous signature of the chaperone;
§ the date and time of the examination.
(signed and sealed)
His Honour Justice Staff Dr A Christie
Dr J Hely Mr R Smith
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