Health Care Complaints Commission v King

[2013] NSWMT 9

Medical Tribunal

New South Wales

Case Title:	Health Care Complaints Commission v King
Medium Neutral Citation:	[2013] NSWMT 9
Decision Date:	06 February 2013
Before:	Murrell SC DCJ Dr C Berglund Dr E Kertesz Dr G Yeo
Decision:	1. Registration cancelled. 2. The practitioner may not apply for review for 12 months. 3. The Tribunal should undertake any review. 4. The practitioner is to pay the HCCC's costs. 5. Order 1 is to take effect in 28 days.
Catchwords:	Protective orders to be made following finding of professional misconduct - digital penetration- lack of insight- remorse- chaperone condition - maintenance of public confidence.
Legislation Cited:	Health Practitioner Regulation National Law 2009 (NSW), s 149A, s 149C(1)(b)
Cases Cited:	HCCC v King [2011] NSWMT 5 King v HCCC [2011] NSWCA 353 HCCC v Litchfield (1997) 41 NSWLR HCCC v Karalasingham [2007] NSWCA 267 Re Dr Parajuli [2010] NSWMT 3 HCCC v Holmes [2010] NSWMT19 Richter v Walton [1993] NSWCA 233 Health Care Complaints Commission v Wingate [2007] NSWCA 326
Category:	Principal judgment
Parties:	Health Care Complaints Commission Dr Victor King
Representation
- Counsel:	Ms K Eastman SC (HCCC) Dr J Renwick SC (King)
- Solicitors:	Health Care Complaints Commission Wyatt Attorneys (King)
File Number(s):	40017/10
Publication Restriction:	The names of the patients and the partner of patient D are not to be published.

JUDGMENT

1. The Tribunal is to determine what orders should be made in consequence of its finding that Dr King, a registered medical practitioner, (the practitioner) is guilty of professional misconduct. Under s149A of the Health Practitioner Regulation National Law 2009 (NSW) (the National Law) the Tribunal has power to impose conditions on the practitioner's registration. Under s 149C(1)(b) of the National Law, the Tribunal may suspend the practitioner's registration for a specified period or cancel the practitioner's registration.

Background

1. The Health Care Complaints Commission (HCCC) complained that, in the course of his general practice at the Chinatown Medical Centre between October 2007 and April 2008, the practitioner engaged in inappropriate intimate conduct with patients B, C and D, inappropriately managed patient C's wrist condition, and kept inadequate records in relation to patients B and C.

2. On May 2011, the Tribunal made the following findings:

   56 The established particulars of complaint show that, over a period of seven months from October 2007 to April 2008, the practitioner engaged in inappropriate sexual conduct towards three young female patients. The behaviour included inappropriate questioning about the patients' sexual behaviour, stroking the arm of patient C in an intimate way and offering to perform pap smears. The most serious misconduct involved the practitioner moving his finger in and out of the vaginas of two patients. Apart from sexual impropriety, the practitioner demonstrated a low level of competence in relation to treatment of patient C's right wrist injury, and kept inadequate records in relation to patients B and C.
   57 Each of the particulars of complaint that the Tribunal finds established constitutes unsatisfactory professional conduct either because it demonstrates conduct significantly below a reasonable standard (section 36(1)(a)) or, in the case of medical record keeping, it involves a contravention of the Act or regulations (section 36 (1) (b)).
   58 In relation to patients B and D , each of the occasions of clinically unjustified digital penetration amounts to unsatisfactory professional conduct of a sufficiently serious nature to justify suspension: s 37 Medical Practice Act 1992 . Conduct of this nature is a grave departure from proper standards. It involves a serious abuse of trust and breach of practitioner/patient boundaries. In this case, the conduct involved a violation of patients who were particularly vulnerable because of their youth and inexperience.
   59 When all aspects of unsatisfactory professional conduct are considered, they demonstrate professional misconduct that is both serious and multifaceted,
   ...
   61 The practitioner continues to deny the most serious departures (those involving sexual impropriety). He has demonstrated neither insight nor remorse, and has advanced no evidence that he has addressed the underlying problems.
   62 As to odd behaviour such as asking patient B to hold the speculum and suggesting that patient D's boyfriend wear gloves for digital sex, the Tribunal is unclear whether the behaviour was motivated by a desire for sexual gratification or was the result of simple ignorance. However, the combination of odd behaviour, inappropriate sexual questioning and the two episodes of digital penetration causes considerable disquiet to the Tribunal.
   ...

3. In reaching these findings, the Tribunal found that the practitioner was an unreliable witness who gave the evidence that he thought would best assist his case: at [3]. The Tribunal was unimpressed by the practitioner's thinly disguised attempts to taint the character of his former patients: at [6].

4. The Tribunal directed that the practitioner be deregistered and ordered that there be no application for review for a period of 18 months.

5. The practitioner appealed. On 22 November 2011, the Court of Appeal determined that, in relation to the penalty of deregistration, the practitioner had been denied procedural fairness. The Court held that the Tribunal should have followed a two stage procedure, first publishing its findings on the issue of misconduct, and then giving the parties an opportunity to adduce evidence in relation to the appropriate consequential orders: per Handley AJA at [202] - [205], McColl JA agreeing, Macfarlan JA not deciding. The Court of Appeal set aside the consequential orders of the Tribunal and remitted the matter to the Tribunal to determine what consequential orders should be made.

6. Between 5 May 2011 and January 2012, the practitioner did not practice. Since January 2012, he has practised at Ashfield and Botany medical centres. In accordance with a condition that he is not to consult with female patients unless a chaperone is present, the practitioner has consulted only with male patients.

Proceedings in November 2012

1. When the matter resumed before the Tribunal on 14 November 2012, the practitioner gave evidence that, since January 2012, he has accepted the Tribunal's adverse findings. He is no longer "in denial". He accepts that he acted inappropriately towards three female patients, and he accepts that his actions included inappropriate sexual conduct with clinically unjustified digital penetration. He regrets his conduct. He has undertaken an ethics program through the St James Ethics Centre. His current professional colleagues know of the restraints upon his practice and facilitate him seeing only male patients. He has a good working relationship with his colleagues, who respect him as a practitioner. His colleagues (particularly his unofficial mentor, Dr Helena Berenson, and the practice co - director, Dr Elaine Hoang) provide helpful advice and support in relation to communication skills and clinical matters. He has improved his record - keeping. He spends more time on record - making. He gives greater attention to the development of patient management plans. He has suffered grave financial loss.

2. To date, the practitioner has been unable to explain his inappropriate sexual conduct (Exhibit 3, paragraph 6). He denies that the conduct was sexually motivated. In attempting to explain his conduct, the practitioner referred to the fatigue associated with working long hours, to deficient communication skills, "clumsy" actions and making an "error of judgement". With the benefit of hindsight, he considers that he used to succumb to patient "wants" (rather than addressing their "needs"). He used to confuse "sympathy" and "empathy". He fell into a "circle of anxiety".

3. Dr Bruce Westmore, a psychiatrist whom the practitioner consulted on a medico-legal basis, confirmed that the practitioner is distressed, ashamed and embarrassed. He gave evidence that the practitioner appears to be compliant and willing to seek advice and accept practice conditions. In Dr Westmore's opinion, the shame and embarrassment associated with the proceedings, their impact on the practitioner's reputation, the fact that the practitioner has initiated treatment by a psychiatrist, and the reduction in the practitioner's work hours mean that the risk of recidivism is minimised. Dr Westmore agreed that the practitioner's response to the complaints (inferentially, his inability to confront them) is probably influenced by cultural factors associated with the practitioner's Malaysian background.

4. Dr Westmore was concerned that the practitioner's insight into his conduct is limited, albeit increasing. Dr Westmore was also concerned that the practitioner has limited insight into the impact of his conduct on the patients and fails to appreciate the power imbalance between a practitioner and his patients. Further, the practitioner lacks insight into any conscious or unconscious sexual component of the conduct. It was Dr Westmore's opinion that the practitioner required psychiatric counselling in relation to the "sexual component" of his misconduct.

5. At Dr Westmore's suggestion, the practitioner made an appointment with Dr O'Dea, a specialist psychiatrist, for the purpose of addressing the sexual component of the practitioner's conduct. When the matter resumed before the Tribunal in November 2012, the practitioner had attended only one consultation with Dr O'Dea. The practitioner was prepared to pursue treatment with Dr O'Dea.

6. Having heard evidence in November 2012, the Tribunal wished to ascertain the outcome of psychiatric intervention. The Tribunal adjourned the proceedings to 7 February 2013. The Tribunal directed that the practitioner serve any psychiatric report by 24 December 2012 and any updating report by 25 January 2013. The HCCC was directed to serve any draft conditions by 4 February 2013.

Evidence of Treating Psychiatrist

1. At the resumed hearing on 7 February 2013, the practitioner tendered reports of Dr O'Dea dated 3 January and 6 February 2013. Since 14 November 2012, the practitioner has consulted Dr O'Dea on eight occasions.

2. In his first report, Dr O'Dea stated:

   27. I have not diagnosed Dr King as suffering from a major psychiatric illness ...
   28. In addition, I have not diagnosed him as suffering from a sexual disorder ...
   29. However, at least some components of the complaints made by the female patients, and the findings of the New South Wales Medical Tribunal in relation to the complaints, may point to at least specific problems with professional sexual boundaries and may also point to the potential for more specific psychosexual problems.
   30. I have agreed with Dr King to explore in a psychotherapeutic forum the potential implications of these complaints for his sexuality in general and his management of professional sexual boundaries in particular ...
   31. A significant component of the psychiatric treatment program will be to endeavour to develop risk management strategies designed to enable Dr King to continue to practice medicine in a manner that would not place patients at undue risk. The nature and adequacy of such a risk management program will be dependent on Dr King's progress through our treatment program that is currently ongoing.

3. In his second report, Dr O'Dea emphasised that he was reporting in the capacity of a current treating psychiatrist. He noted that the practitioner continued to deny the potential for a sexual element to his conduct. Dr O'Dea expressed the following opinions:

   9. As above, Dr King has yet to demonstrate significant progress over the past three sessions in addressing any potential sexual element to the complaints.
   10. In my experience, it is not unusual that the potential imposition of external sanctions inevitably complicates the process of acknowledging and addressing potential sexual problems in patients in similar circumstances to Dr King.
   11. As such, it is difficult at this stage to explore and develop further meaningful specific risk management strategies in relation to the potential and considered sexual element of Dr King's conduct in relation to the complaints.

   Dr O'Dea stated that he was prepared to continue psychiatric treatment.

Submissions

1. The HCCC submitted that the Tribunal should cancel the practitioner's registration. The Commission argued that it is essential that a medical practitioner has insight into the way in which his or her conduct may impact upon the practitioner's patients. The practitioner started from a "very low base" in relation to level of insight and had far to go before the Tribunal could be satisfied that he posed no risk to patients. Until May 2012, the practitioner had vigorously challenged the most serious aspects of the complaint. Inter alia, he remained of the view that "patient misunderstanding" (or his failure to clearly communicate) had contributed to the patient allegations.

2. The HCCC submitted that it was inappropriate to impose a condition requiring ongoing psychiatric treatment as part of a final order because a condition that requires a practitioner to submit to psychiatric assessment indicates that the Tribunal has misgivings about the practitioner's future behaviour: HCCC v Litchfield (1997) 41 NSWLR 630 at 639.

3. The HCCC submitted that the Tribunal should not impose conditions that, in effect, restricted the practitioner to the treatment of male patients only. The HCCC submitted that a general practitioner should be competent and able to safely practise with respect to all patients, whether they are children or elderly persons, and whether they are male or female. Further, the practitioner had misconducted himself in connection with routine procedures that a general practitioner encounters when treating female patients in the course of daily general practice.

4. The practitioner submitted that the Tribunal could order deregistration only if it found that he was permanently unfit to practice, and there was no evidence to that effect.

5. He submitted that, since May 2011, he had changed significantly. He now accepts the Tribunal's findings. He is remorseful. He has attempted to address relevant issues by undertaking an ethics course and consulting with colleagues. He works from 9 am to 5 pm and is no longer fatigued. He is willing to comply with the current restrictions on his practice (including the chaperone condition) and to accept a mentor.

6. The practitioner emphasised that the Tribunal had made no positive finding that he had engaged in conduct for the purpose of sexual gratification.

7. The practitioner is willing to accept a registration condition that he be chaperoned during consultations with women patients, a condition that he continue psychiatric treatment until his treating psychiatrist considered that he no longer required treatment, and a condition that he obtain a mentor.

Considerations

1. In determining the appropriate consequential orders, the paramount consideration is the protection of the health and safety of the public: s 3A of the National Law.

2. The Tribunal rejects the practitioner's submission that it may order deregistration only if it finds that the practitioner is permanently unfit to practise. The health and safety of the public can only be protected if the Tribunal's decision addresses current unfitness, rather than limiting its consideration to permanent unfitness.

3. Where there is a finding of professional misconduct, the Tribunal has a wide discretion in relation to disposition of the complaint. The circumstances of the particular case will determine the appropriate disposition: HCCC v Karalasingham [2007] NSWCA 267 per Basten JA at [67].

4. The jurisdiction of the Tribunal is protective rather than punitive. The protection of the public is associated with the protection of the profession: Litchfield. The protection of the health and safety of the public encompasses a range of considerations. First, there may be a need to protect the public against further misconduct by a practitioner. Second, there is a need for general deterrence. Third, the high professional standards of the profession must be reinforced and transgressions must be denounced. Fourth, public confidence in the profession must be maintained. Fifth, it may be desirable to make available to the public any special skills possessed by a practitioner. It may be that the circumstances of a particular matter require the Tribunal to give greater weight to some of these considerations, or to consider other matters bearing on the health and safety of the public.

5. In Re Dr Parajuli [2010] NSW MT3, the Tribunal found that inappropriate sexual conduct by a practitioner towards a patient constituted professional misconduct. The Tribunal was concerned that the practitioner lacked complete insight into the impact of his conduct on the patient and found that the lack of full insight meant that there was some risk of future patient/practitioner boundary transgression: at [35]. The considerations of reinforcing high professional standards, denouncing transgressions, general deterrence and the maintenance of public confidence in the profession caused the Tribunal to direct that the practitioner be deregistered and that there be no application for review for a period of six months.

6. In Litchfield at 639, the Court determined that a condition requiring that a practitioner submit to psychiatric assessment was inappropriate in a final order because the condition suggested that the Tribunal had misgivings about the practitioner's future behaviour and the condition did nothing to protect the public. It is true that in HCCC v Holmes [2010] NSWMT19 the Tribunal merely suspended the practitioner from practising for a period of 12 months and directed that he continue to see his treating psychiatrist. However, in that case, the Tribunal noted that there was an unusual combination of circumstances. From the outset, the practitioner had acknowledged the misconduct. The Tribunal concluded that, having had many consultations with his treating psychiatrist, the practitioner understood the gravity of his misconduct and was unlikely to repeat it.

7. In relation to whether it is appropriate to permit a practitioner to practise subject to a female chaperone condition, in Litchfield at 639 the Court referred with approval (albeit obiter) to the dissenting judgment of Priestley JA in Richter v Walton [1993] NSWCA 233, to the effect that the need to impose such a condition of itself demonstrated unfitness to practise medicine. However, that observation is best seen as a response to the particular circumstances under consideration. In the leading judgment Health Care Complaints Commission v Wingate [2007] NSWCA 326, Basten JA observed:

   62 In relation to Litchfield, care must be taken, as the Commission recognised in its written submissions, in deriving a principle of over-general application from the circumstances of a particular case. It might be argued from Litchfield that a condition should only be imposed to provide necessary protection to the patients of a practitioner, but that if such a condition is reasonably necessary, the practitioner must lack a precondition to entitlement to continued practice and accordingly the need to impose the condition demonstrates unfitness to practice. Clearly that reasoning is, when stated at that level of generality, fallacious. Conditions may be imposed in varying circumstances and for various purposes. The circumstances and purposes will always be important, in part because of the need for the Tribunal to be satisfied that the condition will be effective. In the present case, the practitioner had committed no misconduct of a 'hands-on' kind; there had been no inappropriate conduct of a sexual kind with any patient or indeed with any non-patient.

   Basten JA went on to emphasise that, in each case, it is necessary to consider all relevant circumstances, including the nature of the practitioner's practice and the degree of real risk of inappropriate conduct.

   The Tribunal's Determination

1. In May 2011, the Tribunal observed that the practitioner had demonstrated neither insight nor remorse, and had advanced no evidence that he had addressed the underlying problems. Indeed, it was unclear to the Tribunal whether the behaviour was motivated by a desire for sexual gratification or was the result of simple ignorance.

2. The practitioner is now remorseful. However, there has been little progress in relation to the gaining of insight. The underlying problems have not yet been identified, let alone addressed. Dr O'Dea hopes to employ psychotherapy techniques with the goal of developing risk management strategies "in relation to the potential and considered sexual element of Dr King's conduct". Unfortunately, to date, there has been no significant progress.

3. The imposition of an indefinite chaperone condition may well protect individual women patients against further misconduct by the practitioner. However, public confidence in the profession would be seriously undermined if the Tribunal permitted the practitioner to continue practising despite the fact that he has little insight and the reasons for the misconduct remain unknown. The digital penetration was sexual assault. In this case, the particulars of complaint were not confined to digital penetration. Considerations of general deterrence, the maintenance of high professional standards, and the maintenance of public confidence convince the Tribunal that the only appropriate order is cancellation of registration.

4. The medical members of the Tribunal consider that the minimum period of psychotherapy that will be required is 12 months. Psychotherapy may prove successful, assisting the practitioner to gain insight into his misconduct and enabling the development of risk management strategies. A minimum period of deregistration of 12 months is adequate to address the considerations of general deterrence, maintenance of professional standards and public confidence.

   Orders

   1. The practitioner's registration is cancelled.

   2. The practitioner may not apply for review for 12 months.

   3. The Tribunal should undertake any review.

   4. The practitioner is to pay the HCCC's costs

   5. Order 1 is to take effect in 28 days.

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