In Re Dr B

[2007] NSWMT 4

New South Wales

Medical Tribunal

CITATION:	In Re Dr B [2007] NSWMT 4
TRIBUNAL:	Medical Tribunal
PARTIES:	Health Care Complaints Commission (Applicant) Dr B (Respondent)
FILE NUMBER(S):	40014 of 2006
CORAM:	Walmsley, SC DCJ - O'Brien, Dr E - Brash, Dr D - Smith, Mr RJ
CATCHWORDS:	Professional Misconduct - Unsatisfactory Professional Conduct
LEGISLATION CITED:	Medical Practice Act, 1992 s.37
CASES CITED:	Childs v Walton (unreported, Court of Appeal, 13 November 1990)
DATES OF HEARING:	14 May 2007 15 May 2007 16 May 2007 17 May 2007
EX TEMPORE JUDGMENT DATE :	17 May 2007
LEGAL REPRESENTATIVES:	Mr P Neil SC (Applicant) Ms A Katzmann SC (Respondent)
ORDERS:	Protective Orders proposed by the Heath Care Complaints Commission: 1.Pursuant to section 61(1)(a) of the Medical Practice Act 1992 the Tribunal reprimand Dr B; 2.Pursuant to Section 61(1)(c) of the Act the Tribunal direct that the following conditions be imposed on Dr B’s registration: Health related conditions:2.1 (i)Dr B is to continue to attend for treatment by a psychiatrist of his choice, at his own cost, at a frequency to be determined by the treating psychiatrist ; (ii) Dr B is to authorise the treating psychiatrist to inform the NSW Medical Board (“the Board”) of a failure to attend for treatment, termination of treatment or if there is a significant change in health status (including a significant temporary change) ; (iii)Dr B it to attend for review by a Board-nominated psychiatrist on a three monthly basis, at the Board's expense; (iv)To attend a Review Interview at the Board on a three monthly basis or as otherwise directed by the Board; (v)To authorise the Board to forward copies of Review Interview reports and other information relevant to his health to the Board-nominated psychiatrist and his treating psychiatrist; Practice conditions:Supervision:2.2Dr B is to nominate a supervisor within 21 days of this decision to be approved by the Board to monitor and review his clinical practice and compliance with conditions, in accordance with Level 3 supervision of the Board’s Policy on Selection & Responsibilities of Supervisors (PCH 7.1) for a period of 2 years from the date of the decision. The supervisor is to be provided with a copy of the Board’s Policy PCH 7.1 and a copy of this decision. The cost of the supervision is to be borne by Dr B. Dr B and the supervisor are to: (i)Meet on a fortnightly basis for at least one hour ; (ii)Meetings must address current cases, boundaries and workload; (iii)At each meeting the supervisor is required to complete a record of matters discussed at the meeting in a format approved by the Board; (iv)The supervisor is required to forward to the Board initially on a quarterly basis a report in a format approved by the Board; (v)The supervisor is required to notify the Board immediately if there are any concerns or issues in relation to Dr B's compliance with any condition of registration or if the supervision relationship ceases. Dr B is to authorise the supervisor to provide such information to the Board; Other:3.Pursuant to section 93(1) of the Act the Board is the appropriate review body for review of the conditions set out in Order 2. The Board may vary or terminate any of the conditions set out in Order 2 at its discretion at any time within the period specified above; 4.Dr B pay the Complainant’s costs of the proceedings; 5.There be a non-publication order of the name, address and identification details of patient A; 6.There be a non-publication order having effect only until 1st January 2008, of the name, address and identification details of Dr B.

JUDGMENT:

JUDGMENT

HIS HONOUR:

1 The Medical Tribunal must decide what orders to make in proceedings which arise from events which occurred 10 years ago, when a Sydney psychiatrist began a sexual relationship with a former patient of long standing.

2 It has long been regarded as one of the tenets of the medical profession that, as the Hippocratic oath says:

"In every house where I come I will enter only for the good of my patients, keeping myself far from all intention or ill doing and all seduction and especially from the pleasures of love with women."

3 That requirement that doctors not use their privileged positions to embark on relationships with patients continues to be relevant. The Royal Australian and New Zealand College of Psychiatrists, of which the doctor, who we shall call Dr B, is a member, has in its current form this ethical guideline:

"(1) Psychiatrists, like other medical practitioners, are required to adhere strictly to the ethical obligations. In psychiatry there is an even stronger obligation to avoid exploitation because of the more intensive therapeutic relationship with patients and the powerful, emotional forces often released during treatment.

(2) Psychiatrists face certain inescapable duties. They must be competent technically and watchful to ensure that whatever happens in therapy is in the patients' best interests. Psychiatrists should be aware of the need to monitor not only the patients' emotions but their own in the interest of the therapeutic process and for the patients' benefit. This firmly excludes any exploitation of the patient sexually, financially or in any other way.

(3) Sexual relationships between current and former patients and their psychiatrists are never acceptable and constitute unethical behaviour. The term 'sexual relationship' is not restricted to sexual intercourse. In this guideline sexual relationship includes: any behaviour, including discussion, which has as its purpose some form of sexual gratification which might reasonably be construed as having that purpose."

4 When the relevant events occurred, however, in 1995 to 1996, the guideline was a little different, and included the following:

"Furthermore, it is generally improper for a psychiatrist to have sexual relationships with former patients unless the circumstances of the professional relationship have not rendered the patient vulnerable to a subsequent approach. The more deeply the psychiatrist becomes involved in the patient's emotional life, the more certain is the impossibility of a subsequent equal relationship. Mutual termination of a therapeutic relationship does not ensure the resumption of an equal relationship. Following long-term psychiatric treatment this is never possible.

However, recognising the problems and formulating absolute rules, any psychiatrist contemplating an intimate relationship with a former patient is strongly advised to consult a properly constituted body of colleagues, bearing in mind that at all times the psychiatrist may be called upon to defend his/her conduct in the judicial context of a Medical Board/Council hearing."

5 The therapeutic relationship between Dr B and his patient, (Patient A,) began in 1992 and continued until early in 1996. At a time late in 1996 they began a sexual relationship which lasted for some years. After its breakdown, although not for some time after its breakdown, Patient A drew the matter to the attention of the relevant authorities.

6 In doing so she made it quite clear that she did not want Dr B to be suspended or struck off. Rather, she was concerned about his depression and the need that he had for treatment and accordingly the need for protection of his patients.

7 After the matter was investigated a complaint was laid. The complaint, in its amended form, alleges that under ss 36 and/or 37 of the Medical Practice Act (the Act) Dr B has been guilty of unsatisfactory professional conduct and/or professional misconduct in that he has demonstrated that his knowledge, skill or judgment possessed or care exercised in the practise of medicine is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience and/or engaged in improper or unethical conduct relating to the practice of medicine.

8 The particulars of the complaint given are (1) between February 1992 and January 1996 as a specialist psychiatrist he provided psychotherapy to Patient A; (2) between April and July 1996 he inappropriately continued to meet her in his rooms and/or provide psychotherapy to her in circumstances where (a) he had developed strong personal feelings for her (b) he had disclosed to her strong personal feelings (c) he was discussing with her the possibility of pursuing a personal relationship with her during that period; (3) in October 1996 he inappropriately entered into a personal and sexual relationship with Patient A.

9 According to the statements from Patient A, there had been, as alleged in the complaint, a professional relationship of longstanding. In early 1996, she had a number of problems, both physical and emotional. She had decided to leave her husband with whom she had lived for many years; she was diagnosed as having an ovarian cyst, and she was experiencing difficulties at work. Against that background, at one of the consultations with her, she disclosed to Dr B that she had informed her husband that she wished to separate.

10 At that time, Dr B, who was estranged from his wife, had developed strong feelings for her. Quite unexpectedly, in the context of their therapeutic relationship, he suggested that she begin seeing a different therapist.

11 When she asked him to explain why, he at first said he had a high regard for her. At a later meeting, he told her that he had fallen in love with her and had strong feelings for her and had done since mid 1995. They continued to meet at his rooms. But he ceased to send her accounts. He never charged her again. Over a period of about three months they discussed, amongst other things, the propriety of their having a different form of relationship.

12 In her two statements to the Commission, Patient A does not in terms say that there was a mutual attraction. But we infer that there was, though with the reservation that one must have about her ability to resist emotional impulses, given her position of long-term patient and the additional vulnerability that she undoubtedly had then, having resolved to leave her husband.

13 Dr B was at that time fully aware that there were ethical constraints in the way of the relationship’s becoming a personal one. He says that he read a number of publications on the issue at the time, including his college's ethical guidelines, and discussed these publications with Patient A.

14 One of the publications recommended that the therapist and patient, in a situation such as this, should cease any contact for 12 months. The evidence suggests that they did at one time agree to follow that, however, began to meet again not long afterwards.

15 In August 1996, Dr B arranged for them both to see a senior psychiatrist in Canberra, Dr Don Lawrence. They each went to Canberra. They saw him separately and they saw him together. Dr B took with him a list of questions which was in evidence before us. The questions included ones which raised the question of whether there would be any harm to Patient A, whether the elements of transference between him and the patient had been adequately resolved, whether there appeared to be any elements of coercion or unequal power relations, and finally whether, if they did develop a personal relationship, that would be unethical on his part. Insofar as it was put to Dr B that he knew he was acting inappropriately given he was seeing a doctor outside Sydney, we do not see that as a valid criticism. We see it as appropriate in the circumstances that he would have sought Dr Lawrence's assistance, given that they had once worked together and that he was senior in his profession; he had high regard for him and he was outside of Sydney but not too far away for him and the patient to go and see.

16 Dr Lawrence was approached by the HCCC some years ago and asked to recall what had occurred. When he reported, he said that in August 1996 he had been approached by Dr B and Patient A. They were exploring the appropriateness of entering an intimate relationship. She had been his patient. In considering the overall wisdom of what they were contemplating, he was asked, in accordance with Medical Tribunal of New South Wales guidelines, to assess whether or not the elements of transference had been adequately resolved. No intimate relationship had begun at that time. He interviewed them on different days and at some length.

17 He consulted the current guidelines concerning sexual relationships between psychiatrists and former patients, in particular the guidelines of the New South Wales Medical Board, as expressed in a Tribunal hearing: which had delineated guidelines for the situation.

18 He consulted the ethical guidelines of the RANZCP and he formed the opinion that the relationship they were considering would not be inappropriate, he said. He did not see it as being unethical or unprofessional, nor to contravene any of the relevant guidelines.

19 He said that he communicated this to them and indicated any steps they were to take were to be entirely at their discretion.

20 In August of 1996, Dr B sought the advice of another psychiatrist, Dr Pryor. In September of that year, according to Dr B, Dr Pryor told him that based on the information that he had given him, it would not be unethical for them to have a relationship.

21 Dr B and Patient A in fact began a sexual relationship in October 1996. Shortly afterwards, she began to consult a different therapist. The relationship continued on and off until about 2000.

22 In 1997, Patient A became pregnant to Dr B. Her pregnancy was terminated. This episode was highly distressing for them both. She says that she wanted to keep the child and her anger, when he did not, "nearly destroyed me." The complainant says that she was prompted to complain ultimately after seeing a television show about improper relationships.

23 Referring to the fact that at the time he first disclosed his feelings for her, he was alone and depressed, she said:

"I have decided to make a complaint to the Health Care Complaints Commission now because the whole thing could happen again with him if he is alone and depressed. He needs help. He is isolated in his profession. He doesn't share his difficulties with friends or peers. He never underwent his own psychotherapy in his training and I am aware that he self-medicates. I believe [Dr B] should be closely supervised in his work and he should be in his own long-term therapy. I don't want to see him punished or deregistered."

24 A significant issue which arose during the investigation of this complaint concerned whether there truly was a cessation of therapy early in 1996, when Dr B says it did cease, or whether it resumed in May 1996, when she returned to see him after a three-month absence.

25 There is no doubt that in the period of three plus months following his disclosure of his feelings for her in May 1996, the two met regularly in his rooms and in the same manner as they had in the past and discussed many issues of the type they had discussed during the four-year period when he undoubtedly did provide therapy.

26 The position taken by Dr B until relatively recently has been that therapy ceased at the beginning of 1996. Records and reports in evidence do not show what assumptions, when Dr Lawrence was consulted, he made about the length of the time Patient A had been in therapy nor how long it had been since therapy had ceased.

27 We referred earlier to Dr Pryor, to whom Dr B turned for an alternative or an additional view. According to Dr Pryor, it is his recollection that he was told that the therapeutic relationship had been brief and had terminated "some time previously."

28 Based upon what he was told, Dr Pryor says:

"I felt that based on the information he had provided to me, the potential for exploitation of the other person of harm to her was minimal but I expressed the view that I personally would not get involved with an ex-patient, given the current climate."

29 The complainant says Dr B told her that from May 1996, he would not charge fees and that this would make it easier later for him to assert the therapeutic relationship had ceased early in 1996. The patient was not cross-examined.

30 The HCCC came into possession, in the course of its investigation, of tape recordings of a number of the meetings Dr B had with Patient A, at his rooms; those tapes were transcribed and the transcripts were in evidence.

31 There was a deal of argument and evidence about the conversations concerning payment for services. Transcripts of the meetings confirm that there were discussions along the lines of those put forward by the patient. But in the end we do not see it necessary to resolve the precise nature of them.

32 At the request of Dr B's solicitors, consultant and forensic psychiatrist Dr Lisa Brown provided a report about Dr B, following lengthy consultations she had with him on 14 June 2005 and 21 June 2005.

33 He told her that he considered the psychotherapy treatment had ceased in January 1996, and he had continued to see Patient A in his rooms because that was the more neutral situation. She concluded as to the background in which the relationship began and occurred:

"In conclusion, vulnerabilities in Dr B's personal life in 1996 of loneliness and mild depression in the context of the marital breakdown is likely to have rendered him vulnerable to the involvement with his ex-patient. If his account is accurate, ambiguous written guidelines during this period of time and the apparent support of colleagues he consulted with, may have tipped the balance in him, acting as he subsequently did. However both the underlying and situational vulnerabilities are now much less in evidence and the sobering effect of the investigation against him and better social supports are all factors suggesting that there is a very low risk of such behaviour occurring again."

34 An issue occurring in the course of the hearing involved the history which Dr B gave to Dr Brown about his depression and its nature, as compared with the history recorded later by his now treating psychiatrist, Dr Diamond. We do not see differences which may be apparent between the two histories as being significant in the context of the matter.

35 The HCCC, for the purpose of these proceedings consulted Associate Professor James Greenwood. Professor Greenwood has not seen or had any consultations with Dr B. He was provided with, and he listened to, the tapes of the consultations in 1996. By reason of their contents, he concluded that Dr B regarded the meetings as therapeutic and that both the doctor and the patient appeared to believe that the relationship was something other than an equal social one.

36 In his view, therapy continued at least until July or August 1996. He concluded that Dr B had used his status as therapist to maintain regular opportunities to negotiate a future personal relationship with Patient A. In his view, most psychiatrists in 1996 would have considered it inappropriate for Dr B to have a sexual relationship with Patient A.

37 He said the departure from ethical standards would have attracted the disapproval of the general body of psychiatrists, that it was a moderately severe breach, but it must be considerably mitigated by the fact that it was openly acknowledged by both parties and considerable attempts were made to validate it by consultations with various colleagues.

38 He went on to say that it was his opinion that Dr B's conduct had fallen below the acceptable standard of professional conduct for a psychiatrist, however, his attempts to validate it by seeking ethical standards of behaviour that would enable him to proceed with the relationship under certain circumstances, did mitigate the severity of his transgression from severe to moderate.

39 The fact that he did not conform to the ethical standard that they had both chosen by maintaining a period of abstinence of relationship for a 12-month period, suggested, he said, that they were each aware that the relationship did not fall within the ethical guidelines.

40 The HCCC also obtained an opinion from Dr Jurd, another consultant psychiatrist. In his view, expressed in a report of 21 July 2005, having heard the tapes, he said Dr B had disclosed his feelings to Patient A and recommended that she attend another therapist and ceased to charge and that during these sessions, at the least, Dr B had the fiduciary duty of a psychiatrist to a former patient. He was on his home ground and almost certainly had the power to be in control to set agendas and set times.

41 So these sessions were, in his opinion, more like therapy than anything else, but overtly to both parties, lacking the key components of therapist objectivity, payment for time and an intention by both parties to contain the relationship in what he called a therapeutic space.

42 In his opinion, Dr B's conduct fell below an acceptable standard and he thought that his departure from the standard invited disapproval to a moderate degree and that his colleagues would agree. Again, as had Dr Greenwood, he said his disapproval was moderated by Dr B's several, albeit ineffectual attempts, to gain support in making the decision to develop the relationship. He referred to the advice that he sought from Dr Lawrence and the fact that Dr B had considered some guidelines.

43 In a report of 8 March 2005, Dr Jurd said - given that there was what he described as an overtly sexual side to the relationship beginning in October 1996, even looked at in the most favourable light, still too short a period between the cessation of therapy and the commencement of the relationship. He expressed the view that the acceptable standard of conduct was that even many years after an intense long-term psychotherapeutic relationship had finished a sexual relationship would be unethical.

44 However, he repeated what he had said in his earlier report, that there was some moderation of his criticism because of the efforts that Dr B had taken to discuss the matter with others.

45 Before us, Dr B's counsel tendered a bundle of documents which included a statement from Dr B of 13 April 2007, in which he specifically admitted particulars 1 and 2, and 3, of the complaint, save that he said, "I do not accept that it is accurate to characterise what I did as psychotherapy. However, I do admit that my meetings with Patient A had elements of psychotherapy."

46 He conceded in his statement that he was guilty of unsatisfactory professional conduct in exploring the possibility of and in entering into a personal and sexual relationship with patient A. He said:

"I now acknowledge the difficulties in ceasing a therapeutic relationship after four years when I had seen the patient in consultation weekly or fortnightly. Although I maintain that the meetings after January 1996 were not formal therapeutic consultations, I acknowledge that the power and imbalances inherent between a patient and their medical practitioner rendered it difficult, if not impossible, to have an equal relationship with Patient A and that I should not have continued meeting with her once I realised that the neutral treatment relationship was no longer viable and should be terminated."

47 He went on to acknowledge that it was inappropriate for him to disclose his feelings to her.

48 Dr B has recently seen and been treated by a consultant psychiatrist, Dr Michael Diamond. Dr Diamond has provided a report of 8 April 2007 for this hearing. He summarised the background of Dr B and the relationship with Patient A and expressed his views.

49 He said, in summary, dealing with the events of 1996, that there were factors that impaired his professional judgement at the time. These related, he said, to his impaired mood state, his failure to recognise his feelings of grief in relation to his failed marriage, and the impending loss.

50 Dr Diamond said that Dr B had dealt with feelings of depression, loneliness, and possibly rejection, by becoming overly focused on his work and by deriving gratification from that environment.

51 In Patient A, he said, he found somebody whom he identified as being compatible with his values and interests, and he had developed romantic aspirations. He noted that he had had many years to reflect on what he had done and to confront the views that had allowed him to pursue that inappropriate relationship and that in that time he had become knowledgeable and insightful about the inappropriateness of his conduct.

52 He had attempted to address his depressive illness when it had exacerbated and was now benefiting from appropriate psychiatric treatment. He said, "It must be emphasised that Dr B is not an individual who shows any signs of exploitative or predatory behaviour."

53 He noted that he had been through a process of having been ostracised by his peers, and noted that that predicament meant it was difficult for him to engage in collegiate activity. He had been excluded from teaching because of his current circumstances and he felt those effects and that it was not helpful for him to be ostracised or excluded further.

54 He concluded, "One could clearly say that Dr B has deep and profound insight into what he has done and the consequences thereof.” There were many changes in his life, his mental state and his psychiatric treatment and in his personal and relationship circumstances to make good that proposition.

55 He was asked specifically whether he considered Dr B unfit to practice. He said:

"With regard to his long-term history of largely untreated depressive illness and difficulty with accepting a need for counsel or psychotherapy, I am encouraged by Dr B's progress to date. His unprofessional conduct developed during a time when he was clearly emotionally distressed and had probably developed significant melancholic depressive illness. He has had repeated episodes of such illness over the years."

56 He concluded:

"Given his past history of recurrent illness and the lack of appropriate management of these illnesses it may be appropriate for him to have conditional registration that ensures that he maintains appropriate treatment for his depressive illness and that he addressed the underlying personality and psychological vulnerabilities that have contributed to his unprofessional conduct."

57 Since 2002, Dr B has been in a supportive and significant relationship with a new partner. From a statement from her, which was tendered on behalf of Dr B, it is clear that she has been very supportive of him. She says that his mood has in recent times been more stable and has lifted significantly.

58 She, it appears, and we are satisfied, has clearly been and continues to be a positive influence in his life.

59 When the case began on 14 May, Dr B's counsel, on his behalf, admitted that his behaviour amounted to professional misconduct and the HCCC's counsel told us that it would not be the contention of the HCCC that his right to practise should be suspended, nor that his name be removed from the register.

60 Rather, it would be the submission of the commission, we were told, that the appropriate order would be that he be reprimanded and that he be permitted to practise but on conditions.

61 It is important to note that “professional misconduct” is defined in s 37 of the Act in this way:

"For the purposes of this Act, professional misconduct of a registered medical practitioner means unsatisfactory professional conduct of a sufficiently serious nature to justify suspension of the practitioner from practising medicine or the removal of a practitioner's name from the register."

62 The admissions by him, on his behalf, by his counsel, and the submissions of the HCCC, through their counsel, should be seen in the light of that definition.

63 Oral evidence was given before the Tribunal by Associate Professor Greenwood and by Dr Diamond and by Dr B.

64 By reason of the concessions made, the real issue before us was Dr B's current degree of insight in the context of the terms and conditions on which he ought be permitted to practise.

65 Shortly before the hearing, the HCCC sought a supplementary report from Professor Greenwood. He was asked, among other things, for his view about Dr B's current level of insight into his unprofessional conduct. For reasons which he gave, he questioned whether he had developed insight. Among other material Associate Professor Greenwood relied on were the transcripts to which we have earlier referred, statements made by Dr B to several people whom he consulted for the purpose of this case, and statements he has given to the HCCC from time to time.

66 The Tribunal considers that there were legitimate concerns for him to raise, and accepts that his concerns were legitimate ones as to Dr B’s insight. But bearing in mind the matters which were the subject of cross-examination of him, particularly against the background of the views we have reached about Dr B, and the views about him from Dr Brown and, particularly, Dr Diamond, we do not share the concerns of Associate Professor Greenwood.

67 Dr Diamond expressed the view that Dr B appears to have shown remorse, and that he is probably now much more aware of the ethical problems arising from sexual relationships with patients than many of his colleagues. We accept that there has been remorse shown by Dr B, and that it is genuine. We note that in Childs v Walton (unreported, Court of Appeal, 13 November 1990) Samuels JA said, "In cases such as this where the protection of the community is the paramount interest, contrition, if accepted as honest, may indicate that no occasion for protection exists." We find that a helpful expression of principle in this case, where we accept that there is honest contrition.

68 We will turn to mention something of Dr B's background. He graduated from the University of New South Wales with the degrees of MB,BS, and became a Fellow of the College of Psychiatrists, in 1989. He is a fellow of the Australasian Chapter of Addiction Medicine.

69 He has studied in disciplines in addition to medicine. In 1989, he completed a training program in addiction medicine run by the Australian Medical Society on Alcohol and Other Drugs, and underwent other training in psychotherapy training.

70 He has practised continuously since 1989 in hospitals in Sydney, has been an occasional lecturer and tutor with the New South Wales Institute of Psychiatry and has on occasion provided advice to the Medical Board, particularly in regard to its Impaired Registrants' Programme. He continues to practise as a consultant psychiatrist.

71 A number of his patients, he says, have serious chronic conditions and have been treated for more than ten years; some started more than 15 years ago. Neither his professional nor his personal conduct before this matter has been, he says, the subject of any prior complaint or investigation.

72 His background, insofar as it is relevant, we have earlier referred to, that is the break-up of his marriage at a time prior to his involvement with Patient A. His practice continues to be one which includes psychotherapy. His current practice, we understand the evidence to be, according to his evidence, substantially less active than it was in 1996.

73 In recent years he has stopped seeing new patients. He did this, he said, because he was not as well as he would like to be, because of his depressive state. He thought also it would be irresponsible or wrong, as he might be deregistered or suspended in these proceedings and that would be irresponsible conduct to any new patients he had taken on in the interim period.

74 He also said that he did not want to have to work so hard, that he had enough to cope with, with matters including in particular this hearing, and that in any event he had trouble functioning in the mornings and so could not start until late.

75 We accept these as the reasons why he has reduced his workload. To the Tribunal he admitted the complaint, or aspects of it, as noted, in its amended form. In his supplementary statement he had not admitted that there had been psychotherapy as opposed to elements of it, during what might be described as the transitional period between about May to about July 1996, with Patient A.

76 He explained to us that he had been “really stupid”, in the way that he handled the position in 1996. He conceded that he had difficulties listening to the tapes until relatively recently, but having done so, he appreciates looking back on it now, he did still want to help Patient A, and respond to her and was doing things of a therapeutic nature such as responding to her concerns about certain dreams, in a way in which a therapist does.

77 He concedes that there was psychotherapy continuing. His point of difference now is that it was not exclusively so. He was also at the sessions trying to tell her about his feelings and the dilemma that he was in. He describes his conduct now as “stupid and incompetent”.

78 He conceded that by waiting until August 1996 before seeing a colleague for advice, he had committed what he described as a very serious error of judgement, especially by not seeking supervision before telling her of his own feelings.

79 He now appreciates, he said, that he should have sought supervision for himself at a much earlier stage on the question of counter-transference.

80 He always had been someone, it appears, who found it hard to open up. This has become a little easier in recent times with help from his partner and from his treatment from Dr Diamond and from other relationships, social and professional, including speaking with lawyers with whom he has no doubt spoken at length for the purposes of this case.

81 He concedes his conduct was a very serious deviation and that suspension or deregistration may have been appropriate. He acknowledges that his conduct was so serious that it departed from the normal duty of care, by bringing himself into the matter and risking very serious harm to his patient.

82 He acknowledges that it was a betrayal of her trust. He acknowledges that, in a situation where a relationship develops between doctor and patient, if it does not work out, that of itself can cause more problems for the patient in that it may make it far more difficult for her to trust other doctors or indeed others with whom she has a relationship.

83 He told us that he had a “shame” about these matters. As to Patient A's statements before the Tribunal, he said that on some factual matters he disagrees with her. But, as we note, she was not required for cross-examination. And, as he properly pointed out, it was his conduct under scrutiny and not hers.

84 In his statement for the Tribunal of 13 April 2007, Dr B gave an assurance to us that if confronted with the same circumstances as confronted him in 1996, he was confident that there would not be a recurrence, because looking back on it, he was lonely and depressed at the time, his marriage having broken down, his judgement being impaired.

85 He had less capacity to deal with these issues then, whereas he is now getting care from Dr Diamond for his depression. He is willing to continue treatment by Dr Diamond, as both he and the Board consider appropriate, and follow his recommendations.

86 He says that if he did again detect feelings of a type which he experienced in 1996, he would approach a professional colleague without delay to discuss the feelings and to seek guidance. He is less isolated. He has improved his support networks. He has a stable relationship. He has close friends.

87 He appreciates the professional standards in relation to exploring and entering new relationships with former patients are clear and unambiguous, such relationships being inappropriate and unethical. He feels an ongoing load of regret for the serious disappointment and trouble that he has caused Patient A and others. He feels humiliated and overwhelmed and debilitated by the investigative processes and never wants to go through it again. We accept that that is so.

88 Looking back at the events of 1996, he considers that he may have been considering the Tribunal's decision in Jolley . He was asked about Dr Greenwood's opinion of the events of 1996 in particular, that he knew what he was doing was improper or wrong. He did not agree that that was how he saw it, rather that it was controversial. We think it was in that context that he referred to the case involving Dr Jolley.

89 Dr Brown, when she saw him for this case in 2005, thought he had some insight. He now considers that he has more.

90 Although the admission of professional misconduct came late in this matter, we do not draw any inference adverse to him by reason of the lateness of it.

91 We take him to have conceded the seriousness of the conduct at an appropriately early time. We note, as we earlier stated, the fact that he has only relatively recently managed to bring himself to listen to the tapes. As well as that, of course, there would have been a cumulative effect of the treatment he has had from Dr Diamond, thus making it more apparent why he can only now or until relatively recently, could, fully appreciate the inappropriateness of his earlier conduct.

92 He has read some conditions which have been prepared by the HCCC for the purpose of this case. We take him to be willing to comply with them. We regard that as appropriate.

93 The Tribunal is reasonably satisfied on the balance of probabilities that all parts of the complaint are proved. We find that there was professional misconduct and it follows from the finding of professional misconduct that the conduct was sufficiently serious to justify suspension or removal of his name from the register.

94 However, it does not follow that such an event should occur. Our prime concern is with protection of the public. There is also a significant issue involving the maintenance of public confidence in the medical profession. Members of the public are entitled to be concerned that a psychiatrist who, as he concedes, was guilty of such a gross breach of the usual trust between doctor and patient, should be permitted to retain the right to practise.

95 Dr B, as we have noted, gave evidence. This was over several hours. His counsel took him carefully through the process by which he came to acknowledge the very serious breach of trust was so great that he made the concession ultimately that his conduct was professional misconduct.

96 He was cross-examined by senior counsel for the HCCC. It is the view of the Tribunal having observed him give evidence that he does now have significant insight into his conduct of 1996, which he did not have at the time of those unfortunate events.

97 We note also the views, which we accept, of Dr Brown, that in 2005, he was insightful, and Dr Diamond, in his report of 08/04/07, that he had "Deep and profound insight into what he has done and the consequences thereof."

98 Apart from having a lack of insight at the time, which we are satisfied played a significant part in the matter, there were his health and the events in his private life in 1996, we are satisfied, which together constituted an unusual combination of circumstances.

99 Given that he is and has for some time been having treatment and the evidence as to his new social contacts and other areas of improvement in his social life, and his mood, and the views of Doctors Brown and Diamond, we are satisfied that there is but a low risk of recurrence of such behaviour.

100 We consider that it is appropriate for him to continue to practise. We note in particular in that regard the view of one his fellow consultant psychiatrists, Dr McPherson, who was not cross-examined on the statement he provided. He knows Dr B as a fellow professional. He met him in a peer review committee. They are friendly but it appears do not socialise. He said this about Dr B:

"I have the highest regard for Dr B's skill and competence as a psychiatrist. In his clinical work he is empathic, careful, considered, well-informed across the various aspects of practice and has generally excellent judgment. Furthermore, he has always shown a great sense of care and ethical responsibility to patients as evidenced in his discussions and presentations in our peer review group meetings. I have referred patients to Dr B from time to time with complete confidence.

My impression in general is that he is an excellent general psychiatrist to whom I would be happy to refer members of my own family or close friends. In fact, of many psychiatrists that I know, he would perhaps in the most general sense, be one that I would be most impressed with in terms of clinical competence in the world of real everyday clinical practice."

101 We consider that that is high praise, and we find it of assistance. We have noted also in the statement from his partner that after he began to see Dr Diamond late last year, she noticed an improvement in his mood, the lifting of his mood and his lack of tiredness, his greater activity and sociability.

102 In summary, because of our view of his current level of insight, and the views of those whom we have quoted and the positive changes and the support of peers such as Dr McPherson and his ongoing treatment, we consider that provided there are proper safeguards, he should be permitted to practise on conditions.

103 A document was handed to us for us to consider. There was one matter in it with which his counsel took issue; namely in 2.2.I, that is as to a requirement that there be a meeting on a fortnightly basis for at least an hour.

104 The proposition put by his counsel, was that these meetings should be required for each fortnight for three months and thereafter on a monthly basis.

105 The Tribunal, however, accepts the submission of the commission that all of the conditions in the document handed to us should be imposed on his right to practise. We make that observation for these reasons.

106 There is no restriction on his providing formal psychotherapy. We are concerned to ensure that he consolidates and integrates his recently developed insight into his clinical practice, especially his psychotherapy practice. We express that concern, although we do appreciate that supervision does impose costs on him.

107 We are content to leave it for the Board, which has the power in order 3 to vary or terminate any of the conditions in order 2, including the relevant one, at its own discretion.

108 We observed earlier that it was the submission of the commission that the appropriate order under s 61 be a reprimand. The orders that we make then are these:

(1) Pursuant to s 61(1)(a) of the Medical Practice Act 1992, the Tribunal reprimands Dr B.

(2) Pursuant to s 61(1)(c) of the Act, the Tribunal directs that the following conditions be imposed upon Dr B's registration.

Health-related Conditions:

2.1(i) Dr B is to continue to attend for treatment by a psychiatrist of his choice, at his own cost, at a frequency to be determined by the treating psychiatrist.

2.2.(ii) Dr B is to authorise the treating psychiatrist to inform the New South Wales Medical Board (the board) of a failure to attend for treatment, termination of treatment or if there is a significant change in health status (including a significant temporary change.)

2.2.(iii) Dr B is to attend for review by a board-nominated psychiatrist on a three-monthly basis at the board's expense.

2.2.(iv) To attend a review interview at the board on a three-monthly basis or as otherwise directed by the board.

2.2.(v) To authorise the board to forward copies of review interview reports and other information relevant to his health to the board-nominated psychiatrist and his treating psychiatrist.

Practice Conditions: Supervision.

2.3. Dr B is to nominate a supervisor within 21 days of this decision to be approved by the board to monitor and review his clinical practice and compliance with conditions in accordance with level 3 of the board's policy on selection and responsibilities of supervisors (PCH 7.1) for a period of two years from the date of the decision. The supervisor is to be provided with a copy of the board's policy (PHC 7.1) and a copy of this decision. The cost of the supervision is to be borne by Dr B. Dr B and the supervisor are to:

(i) Meet on a fortnightly basis for at least one hour.

(ii) Meetings must address current cases, boundaries and workload.

(iii) At each meeting the supervisor is required to complete a record of matters discussed at the meeting in a format approved by the board.

(iv) The supervisor is required to forward to the board initially on a quarterly basis a report in a format approved by the board.

(v) The supervisor is required to notify the board immediately if there are any concerns or issues in relation to Dr B's compliance with any condition of registration or if the supervision relationship ceases. Dr B is to authorise the supervisor to provide such information to the board.

Other Orders:

3. Pursuant to s 93(1) of the Act the board is the appropriate review body for review of the conditions set out in order 2. The board may vary or terminate any of the conditions set out in order 2 at its discretion at any time within the period specified above.

4. Dr B to pay the complainant's costs of the proceedings.

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