Medical Board Australia and Veness; (Occupational Discipline) - [2012] ACAT 36

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

MEDICAL BOARD AUSTRALIA & VENESS
(Occupational Discipline) [2012] ACAT 36
OD 10/13
Catchwords: Occupational Discipline – Medical Practitioner – boundary violation by psychiatrist – expressions of personal feelings to patient – effect on patient – prescribing of drugs when not able to continue treatment – failure to arrange alternate treatment – limited value of testimonials – need for further expert evaluation of the practitioner before registration – doctor’s needs put ahead of patient’s needs – inappropriate place of disclosure – excessive prescribing of drugs.

List of Legislation: Health Practitioner Regulation National Law
Human Rights Commission Act 2005
Health Practitioners Regulation National Law (ACT) Act 2010

List of Cases Briginshaw v. Briginshaw [1938] 60 CLR 336
Law Society of NSW v. Foreman 34 34 SCNSW 408
Re: A Medical Practitioner [1993 No2] 2 QDR 154
Healthcare Complaints Commission v. Litchfield [NSWCA] 41 NSWLR 630
Saville v. Healthcare Complaints Commissioner & Anor [2006] NSWCA 298

Tribunal:                  Mr C.G Chenoweth, Senior Member (Presiding Member)
  Dr T. Faunce, Member
  Ms J. Greagg, Member

Date of Orders:  8 June 2012
Date of Reasons for Decision:       8 June 2012
AUSTRALIAN CAPITAL TERRITORY          )
CIVIL & ADMINISTRATIVE TRIBUNAL     )
OD 10/13

BETWEEN:
MEDICAL BOARD OF AUSTRALIA
Applicant

AND:

HUGH VICTOR VENESS

Respondent

TRIBUNAL:            Mr C.G Chenoweth, Senior Member
  Dr T Faunce, Member
  Ms J. Greagg, Member

DATE: 8 June 2012

ORDERS
1.The Tribunal sets aside the decision of the Applicant of 2 December 2010.
2.The Tribunal substitutes the following decisions:
a) That the Respondent has behaved in a way that constitutes professional misconduct; and
b) That the registration of the Respondent is cancelled

3.The Tribunal decides not to determine a specified period for which the Respondent is disqualified from applying for registration.

………………………………..
Mr C.G Chenoweth, Senior Member
For and on behalf of the Tribunal

REASONS FOR DECISION

Introduction.

This is a matter instituted in the tribunal by the applicant ("the board") following its decision to immediately suspend the registration of the respondent ("the doctor") as a registered medical practitioner. The decision to suspend the doctor was made by the ACT Board of the board, on 2 December 2010 acting under powers conferred by the Health Practitioner Regulation National Law ("the Law"). The doctor was notified of the decision to suspend by written notice sent to him on the 6 December 2010.

The doctor instituted proceedings in the ACT Civil and Administrative Tribunal ("the tribunal") in matter 0D 12 of 2010, seeking a stay order of the decision of the board to suspend him. That application was granted, on conditions. Further stay orders were renewed a number of times on conditions, expiring on 2 September 2011. The stay orders were granted as interim orders under section 53 of the ACT Civil and Administrative Tribunal Act ("ACAT Act") as orders that the tribunal considered appropriate to protect the position of the doctor as the party applying for the stay order.
The last application for an extension to the stay order was made on 25 August 2011. By that date, all of the evidence in the board's application comprised in this matter had been heard and final submissions had been made by both parties. The tribunal members had discussed the matter in private. The tribunal refused the application for a further stay order. The result of this refusal was that the original decision of the board to suspend the doctor's registration took effect from the date of expiry of the previous stay order, namely 2 September 2011. The notification of the suspension would then have been entered on the national register maintained under the Law.

The Health Services Commission.

The decision of the board arose out of a complaint by a female patient of the doctor ("the patient") alleging inappropriate conduct that she saw as a sexual advance. She also complained about the manner of prescribing of certain drugs. The complaint was originally made to the offices of a politician in Canberra. The complaint was referred to the Health Services Commissioner, a person appointed under the Human Rights Commission Act 2005 ("the HRC Act").
Section 14 of the HRC Act empowers the Human Rights Commission ("the commission") to identify, enquire into and review issues relating to matters that may be complained about under the HRC Act. The commission is authorised to make reports to other appropriate entities. One such entity is the board, pursuant to the terms of the Law as it applies in the Australian Capital Territory.
The commission is given power under section 74 of the HRC Act to require a person to provide relevant documents and attend and answer questions about a complaint. The commission must be satisfied on reasonable grounds that the person to whom the notice is given can provide information relevant to its consideration. It is an offence for a person not to comply with such a notice.
Under section 92 of the HRC Act, where the commission has received a complaint about a registered health professional, and it considers the person's behaviour warrants enquiry, the commission must give to the health profession board for that health professional a copy of the complaint and all of the documents that the commission has relating to the complaint.
On 22 November 2010, the commission notified the board that the commission had made enquiries about the conduct of the doctor.

The National Scheme.

Prior to the introduction of the Law, regulation of health professionals was on a separate basis for each State and Territory, albeit with some co-ordinating arrangements. The introduction of the Law and the establishment of various bodies under it established a single national scheme for the registration of health professionals, and for the review of their conduct.
The Law (being the schedule to a Queensland act) was adopted as a law of the territory by the provisions of section 6 of the Health Practitioners Regulation National Law (ACT) Act 2010. That act in section 8 makes the tribunal the responsible tribunal for the territory for the purposes of the Law.
Part four of the Law establishes the Australian Health Practitioners Regulation Agency as the body that is to support national boards. The board is established pursuant to section 31 of the Law. The board under section 36 may establish a committee for a participating jurisdiction, with the members of that committee appointed by the responsible Minister for that jurisdiction. That body may act in matters in a particular jurisdiction on behalf of the board. The committee that has been established for the Territory is the Medical Board of the Australian Capital Territory.
Section 156 in division seven of the Law allows the board to take immediate action in relation to a health practitioner where the board reasonably believes that the practitioner's conduct, performance or health poses a serious risk to persons, and it is necessary to take immediate action to protect public health or safety.
Before exercising this power, a show cause notice must be issued under section 157 to the practitioner concerned. Material produced in response to the show cause notice must be considered by the board, but it then has the power to suspend registration under section 158 if it considers appropriate.
Section 193 (1) (a) (i) of the Law requires the board to refer a matter about a health practitioner to the tribunal as the responsible tribunal for the territory, where the board considers that the practitioner has behaved in a way that constitutes professional misconduct.
Where there has been a reference of a matter to a responsible tribunal and after a hearing, section 196 sets out the power of the tribunal. They are as follows:
196Decision by responsible tribunal about registered health practitioner
(1)After hearing a matter about a registered health practitioner, a responsible tribunal may decide—
(a)the practitioner has no case to answer and no further action is to be taken in relation to the matter; or
(b)one or more of the following—
(i)the practitioner has behaved in a way that constitutes unsatisfactory professional performance;
(ii)the practitioner has behaved in a way that constitutes unprofessional conduct;
(iii)the practitioner has behaved in a way that constitutes professional misconduct;
(iv)the practitioner has an impairment;
(v)the practitioner’s registration was improperly obtained because the practitioner or someone else gave the National Board that registered the practitioner information or a document that was false or misleading in a material particular; or
(2)If a responsible tribunal makes a decision referred to in subsection (1) (b), the tribunal may decide to do one or more of the following—
(a)caution or reprimand the practitioner;
(b)impose a condition on the practitioner’s registration, including, for example—
(i)a condition requiring the practitioner to complete specified further education or training, or to undergo counselling, within a specified period; or
(ii)a condition requiring the practitioner to undertake a specified period of supervised practice; or
(iii)a condition requiring the practitioner to do, or refrain from doing, something in connection with the practitioner’s practice; or
(iv)a condition requiring the practitioner to manage the practitioner’s practice in a specified way; or
(v)a condition requiring the practitioner to report to a specified person at specified times about the practitioner’s practice; or
(vi)a condition requiring the practitioner not to employ, engage or recommend a specified person, or class of persons,
(c)require the practitioner to pay a fine of not more than $30,000 to the National Board that registers the practitioner;
(d)suspend the practitioner’s registration for a specified period;
(e)cancel the practitioner’s registration.
(3)If the responsible tribunal decides to impose a condition on the practitioner’s registration, the tribunal must also decide a review period for the condition.
(4)If the tribunal decides to cancel a person’s registration under this Law or the person does not hold registration under this Law, the tribunal may also decide to—
(a)disqualify the person from applying for registration as a registered health practitioner for a specified period; or
(b)prohibit the person from using a specified title or providing a specified health service.

The Law includes definitions of "professional misconduct" and "unsatisfactory professional conduct". They are as follows.
professional misconduct, of a registered health practitioner, includes—
(a)unprofessional conduct by the practitioner that amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and
(b)more than one instance of unprofessional conduct that, when considered together, amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and
(c)conduct of the practitioner, whether occurring in connection with the practice of the health practitioner’s profession or not, that is inconsistent with the practitioner being a fit and proper person to hold registration in the profession

unprofessional conduct, of a registered health practitioner, means professional conduct that is of a lesser standard than that which might reasonably be expected of the health practitioner by the public or the practitioner’s professional peers, and includes—
(a)a contravention by the practitioner of this Law, whether or not the practitioner has been prosecuted for, or convicted of, an offence in relation to the contravention; and
(b)a contravention by the practitioner of—
(i)a condition to which the practitioner’s registration was subject; or
(ii)an undertaking given by the practitioner to the National Board that registers the practitioner; and

(c)the conviction of the practitioner for an offence under another Act, the nature of which may affect the practitioner’s suitability to continue to practise the profession; and
(d)providing a person with health services of a kind that are excessive, unnecessary or otherwise not reasonably required for the person’s well-being; and
(e)influencing, or attempting to influence, the conduct of another registered health practitioner in a way that may compromise patient care; and
(f)accepting a benefit as inducement, consideration or reward for referring another person to a health service provider or recommending another person use or consult with a health service provider; and

(g)offering or giving a person a benefit, consideration or reward in return for the person referring another person to the practitioner or recommending to another person that the person use a health service provided by the practitioner; and
(h)referring a person to, or recommending that a person use or consult, another health service provider, health service or health product if the practitioner has a pecuniary interest in giving that referral or recommendation, unless the practitioner discloses the nature of that interest to the person before or at the time of giving the referral or recommendation.

The notification from the board to the doctor of the 6 December 2010 makes it clear that the board proposed to refer the matter to the tribunal.

The College Code of Ethics.

At the time of the events giving rise to these proceedings, the code of ethics of the Royal Australian and New Zealand College of Psychiatrists (“College”) was the one brought into operation as at October 2004. The current code of ethics of the College is dated July 2010. Both codes have specific provisions in principle two dealing with psychiatrists not misusing the inherent power differential in their relationships with patients, either sexually or in any other way.
Principle two of the Code in operation in December 2009 sets out the following:
2.4    A psychiatrist shall not engage in sexual exploitation, harassment or sexual contact of any kind with their patients.
2.5    Sexual relations between psychiatrists and their patients are always unethical.
2.6    Sexual relations between psychiatrists and their former patients are always unethical.
2.7    Sexual harassment or any behaviour which might reasonably be interpreted by a patient as demeaning or as a sexual advance, is unethical. Such behaviour may include physical contact, conduct, comments, or innuendo of a sexual nature or questioning on sexual matters which is not necessary for clinical purposes.
The principles set out in the July 2010 statement contains similar prohibitions, although slightly differently expressed.

Background

The doctor is a registered specialist in the field of psychiatry, and practised in that specialty by himself from professional rooms in his home in suburban Canberra. He has practised medicine for 43 years, the last 33 of them as a specialist psychiatrist. From 1977 to 1989 he practised in country New South Wales, where he was also active in a number of community organisations. He has practised in Canberra since 1989, with special interests in forensic psychiatry, occupational psychiatry and the management of comorbid intractable pain and severe intractable depression.
The doctor is a fellow of the Royal Australian and New Zealand College of Psychiatry ("the college"). He has served as a member of the ACT Medical Board as an elected representative of doctors in Canberra for one term from 2007. He has also served as psychiatric adviser to the ACT Government Corrections Review Committee, as a councillor of the Australian Medical Association, ACT branch, and as a committee member of the college ACT branch as the AMA representative.
The patient is described by the doctor in his affidavit of 16 December 2010 as a person with a family history of depression. She was a single parent on a disability pension having had two failed marriages and a failed de facto relationship. She had a daughter aged eight. She gave a long history of psychological and psychiatric problems, which led to previous consultations with another Canberra psychiatrist.
The doctor first saw her on 14 November 2008, on referral from the patient's general practitioner. The patient had been encouraged to attend the doctor for treatment by another patient of the doctor. This second patient is referred to in these reasons as “the person”. Following that consultation, the doctor saw her for a further eight consultations during 2009. The last was on 4 November 2009.
One of the visits in January 2009 was a home visit. This home visit followed the admission of the patient to the psychiatric unit at Calvary Hospital, and the visit was part of the doctor’s patient care. The patient's mother was present when this visit was made, and no criticism is made of that visit.
The doctor gave evidence that following the last consultation in his rooms on 4 November 2009, he received a telephone call from the patient in about mid-December saying that she had had a dispute or argument with a friend and as a result had developed what the doctor had interpreted as a panic attack. The doctor indicated over the phone that he would prescribe Xanax for her, but did not provide a prescription immediately. There was a dispute between the doctor’s evidence and the patient's evidence as to whether there had been a discussion about Xanax at the consultation on 4 November, and whether the doctor had advised the patient about its effect and the importance of not mixing it with alcohol.
The doctor gave evidence that he had started to develop romantic feelings or feelings of affection for the patient at some stage towards the end of December, and saw himself with her and her daughter in a happy domestic situations. This was the first time that he had had such feelings about the patient, but he was not able to get them out of his mind. As a result of this, he sought the advice of a psychologist member of his peer group. That meeting was not by prior arrangement, and was held when the psychologist was trying to leave for holidays with his children. It was held in the late afternoon of 27 December 2009. The doctor’s evidence was that the psychologist’s advice was to simply go and tell the patient about his feelings. Acting on that advice, the doctor decided to go and see the patient in her home to disclose these feelings to her.
The doctor visited the patient's home in the evening of Tuesday, 29 December 2009. This was as a result of a previous telephone call from the doctor to the patient’s mobile phone in the afternoon, and agreement by the patient to allow the doctor to attend the patient's house. He told the patient that he would be going near her house on the way to visit his children. The doctor said that he would bring over the prescription for Xanax, and would also get the patient to sign a Medicare form that had been overlooked at the last consultation.
The doctor attended at the patient's house with his two dogs, and after some social discussion with the patient she signed the Medicare form that he produced and he provided her with a prescription for Xanax. He then asked her for a private conversation outside the house and away from the patient's daughter. In that private conversation, he disclosed that he had feelings of attraction for the plaintiff. There is dispute between the doctor and the patient as to exactly what was said on this occasion. The doctor then left the patient's residence.

There were several telephone calls from the doctor to the patient over the next couple of days, including a proposal that the doctor call in at the patient's residence on New Year's Eve.
The patient gave evidence that she found the advances unwelcome, she was afraid of the doctor and she was very concerned about losing the services of a psychiatrist who had helped her. She was very upset.
On the 2 January 2010, the patient sent an e-mail to a local politician complaining about the conduct of the doctor and indicating that she was depressed and anxious about the situation. As a result of contact with the politician, she was referred to the HSC.
The patient was admitted to Calvary Hospital on 5 February, following what she identified as an overdose of Xanax with alcohol, "to block things out but not to kill herself.” The Calvary hospital notes indicate that the patient's main stressor was that her private psychiatrist had been sexually harassing her and that she had lodged a complaint against him. The patient remained in hospital until 12 February 2010.
The patient was interviewed by an officer of the Commission on about the 25 January 2010. The transcript of that interview was available to the tribunal. The doctor was interviewed by the commission on 3 March 2010, and that record was also available to the tribunal. It forms part of the affidavit of Shane Logan of 20 December 2010. Mr Logan is the director of notifications ACT, Australian Health Practitioner Regulation Agency. The affidavit was filed on behalf of the board.
The commission sent its material to Dr Michael Diamond, a consultant psychiatrist of Sydney for the purposes of obtaining a peer review. Dr Diamond was instructed on 16 July, and he provided a peer review report on 4 September 2010. All of the commission’s material was sent to the board, which considered the matter on 22 November 2010.
On 24 November 2010, the board wrote to the doctor giving him notice that the board proposed to take immediate action to suspend his registration as a medical practitioner. The board invited the doctor to make a submission under section 157 (1) (b) of the Law in relation to the board’s proposed action. The doctor responded by submissions of 30 November 2010. The submissions referred to the doctor’s treatment of the patient, and also included a detailed criticism and commentary on the report provided by Dr Diamond. The doctor also provided a lengthy commentary by Dr Robert Tym of 28 November 2010, commenting on the transcripts of the two interviews between the HSC and the doctor and the patient, and also on the peer review by Dr Diamond.
On the 1 December 2010, the doctor also provided some submissions prepared by an advocate on his behalf, Mr Fenwick, commenting on the material that had been provided to the doctor.
On 6 December 2010, a letter was sent to the doctor by the Australian Health Practitioners Regulation Agency, notifying him that the board had suspended his registration. It is as a result of that action that the proceedings are before the tribunal. These proceedings alleging professional misconduct were commenced by the board on the 20^th December 2010.
The doctor commenced proceedings in matter OD 12 of 2010 to stay the board’s actions. On 17 December 2010, the immediate action of the board to suspend the doctor's registration was stayed by the tribunal on conditions that:
– the doctor was to successfully complete at his expense a course in boundary management relevant to psychiatric practice as recommended by the board; and
– the doctor was to provide to the board at his own expense a report of an agreed expert certifying that in the expert's opinion the doctor was able to reliably identify boundary issues, and both form and implement appropriate plans to deal with such boundary issues:
– the registration of the doctor was conditional for a period of one year upon compliance with a regime of mentoring from a senior psychiatrist in Canberra, Dr Drew, and;
–that the doctor was only to see patients at his consulting rooms or a health facility.
There was no suggestion that these conditions have not been complied with up to the date of the hearing.
Prior to the hearing of this matter, the doctor undertook a course in boundary management by Dr Douglas, and a report from him was given to the tribunal. Dr Drew also gave evidence in support of the doctor's case.
While the above summary sets out the basic facts of the interaction, the detailed evidence given on affidavit and in the hearing showed (not surprisingly) a dispute as to exactly what was said and done at particular critical times. The detailed evidence will be reviewed later in these reasons.

Details of complaint.

As a result of an order made in the tribunal on 25 March 2011, further and better particulars of the applicant’s allegations were made by letter dated 1 April 2011 from the Australian Capital Territory Government Solicitor to the solicitors for the doctor. The overarching allegation was that the conduct of the doctor in relation to the patient occurring in December 2009 consisted of professional misconduct in that:
1. It consisted of unprofessional conduct that was substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training, expertise or experience to the doctor; or in the alternative
2. It consisted of more than one instance of unprofessional conduct that, when considered together, amounted to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training, expertise, or experience to the doctor.

Particulars of unprofessional conduct were provided. They amounted to 22 separate points and the board asserted that each of the allegations amount to unprofessional conduct. The board also alleged that having regard to the doctor’s 33 years of practice of psychiatry, each of the particulars amounted to professional misconduct. In addition, the allegations when considered together amounted to unprofessional conduct. Particulars of the unprofessional conduct are as follows:
2.1During the period from 1 December 2009 to 29 December 2009, the doctor failed to appropriately seek counsel of a peer in relation to his feelings for the patient.
2.2Between 1 December 2009 and 31 December 2009 the doctor failed to take reasonable steps to ensure continuity of care for the patient.
2.3On 29 December 2009 the doctor initiated contact with the patient in order to gain her consent to attend at her home for a non-therapeutic purpose.
2.4On 29 December 2009 the doctor attended the premises of the patient for a non-therapeutic purpose.
2.5On 29 December 2009 the doctor attended the premises of the patient when the attendance was not clinically indicated.
2.6On 29 December 2009 the doctor said to the patient words to the effect that he had developed feelings for her.
2.7On 29 December 2009 the doctor said to the patient words to the effect that he would like to have an ongoing personal relationship with her.
2.8On 29 December 2009 the doctor disclosed to the patient that he had developed feelings for her, and at the same time provided her with a prescription for a large amount of Xanax.
2.9On 29 December 2009 the doctor provided the patient with a prescription for Xanax which was not clinically appropriate.
2.10On 29 December 2009 the doctor provided to the patient a prescription for Xanax with repeats, without first taking steps to ensure continuity of care for the patient.
2.11On 29 December 2009 the doctor attempted to arrange a further meeting with the patient at her home on 31 December 2009, which meeting was for a non-therapeutic purpose.
2.12On 29 December 2009 the doctor attempted to arrange a further meeting with the patient at her home on 31 December 2009, which meeting was not clinically indicated.
2.13On 29 December 2009 the doctor prematurely terminated the treating relationship with the patient when continuity of care had not been arranged.
2.14On 30 December 2009 the doctor during a telephone call to the patient attempted to arrange a further meeting with the patient at her home, which meeting was for a non-therapeutic purpose.
2.15On 30 December 2009 the doctor during a telephone call to the patient attempted to arrange a further meeting with the patient at her home, which meeting was not clinically indicated.
2.16On 30 December 2009 the doctor during a telephone conversation with the patient said to her words to the effect that he loved her.
2.17On 30 December 2009 the doctor during a telephone conversation with the patient said to her words to the effect that “I can help you in a different way” and “wouldn’t you feel better with my arms around you”.
2.18On 30 December 2009 the doctor during a telephone conversation with the patient said to her words to the effect that he wished to have an ongoing personal relationship with her.
2.19On 30 December 2009 the doctor during a telephone conversation with the patient advised her to take Xanax if she was upset by his overtures.
2.20On 31 December 2009 the doctor made a telephone call to the patient and attempted to arrange a further meeting with the patient at her home, which meeting was for a non-therapeutic purpose.
2.21On 31 December 2009 the doctor made a telephone call to the patient and attempted to arrange a further meeting with the patient at her home, which meeting was not clinically indicated.
In January or February 2010 the doctor discussed his involvement with the patient with the person.
The particularised conduct falls into five categories, and it is more convenient to consider it in this manner. The parts are as follows:
– the manner of prescription of Xanax;
– the doctor's disclosure of his feelings to the patient and related conduct;
– the doctor's failure to seek appropriate peer review in relation to his feelings for the patient;
– the doctor's failure to ensure continuity of care for the patient; and
– the doctor’s discussion about the situation with the patient with the person.
As part of the board's case an affidavit of 20 December 2010 was filed from Mr Shane Logan, Director of Notification of the Agency. It evidenced the formal notices that had passed between the parties and attached a number of exhibits. Included in these were the transcripts of interviews between the commission and the doctor and the patient. The affidavit also confirmed that the board considered that the conduct of the doctor had to be referred to the tribunal because the conduct consisted of professional misconduct.
The transcript of the interview between the officer of the commission and the patient indicates a lengthy interview. In it, the patient gives specific details of the meeting at her home in December and the subsequent telephone calls. She recalls the specific phrases that she alleges that the doctor said to her. These were consistent with her later affidavit and the evidence given to the tribunal. They were also consistent with the patient's e-mail to the politician of 2 January 2010, the earliest accounts by her of the interaction of 29-31 December 2009.
The doctor gave an interview to the commission officer on 3 March 2010. In it, he sets out his version of the interaction between them and denies using the particular expressions that he loved the patient and wanted to establish a relationship with her, although confirming much of what the patient had said.

Evidence of the patient.

The patient made two affidavits in this matter, the first of 24 January 2011 and the second of 1 April 2011. Only the second one was relied upon. Counsel for the doctor objected to certain paragraphs in the affidavit, which were struck out for the purposes of these proceedings.
In the affidavit, the patient sets out how she was originally referred to the doctor, and the number of appointments that she had had with him. She confirmed that her last clinical appointment was on 4 November 2009, and that at the appointment she had forgotten to sign a Medicare form. This had also been overlooked by the doctor’s staff.
The patient set out in paragraph 10 details of a telephone call that she later made to the doctor, as a result of an argument that she had with a friend. The friend had screamed at the patient, and she became very upset and panicky as a result of it. The date of this telephone call was not clear, but it appears from the patient’s affidavit to have been made “later in November or December.” There is no contemporaneous record of the phone call in the doctor’s notes. The doctor said that he would post out a prescription for Xanax as medication for the panic attack, and reassured the patient that she was not likely to become addicted. The patient denied that the doctor said anything about mixing this drug with alcohol.
The script did not arrive in the mail. The patient did not recall following it up, although she said she may have followed it up by phoning the doctor’s rooms again. On the 29 December 2009, she received a telephone call on her mobile phone from the doctor. She was at a social club with her daughter, mother and a friend. The doctor said that he was calling to ask how she was because he recalled that she got stressed around Christmas time last year. He then said that he had forgotten to get her to sign the Medicare chit and she enquired about the script for the drug that he had offered in response to the argument with the friend.
The doctor then said that he would call in at her house at around 6 PM. The patient gave evidence that she was concerned about the call, and that the doctor was coming to her house, but she was reassured because her daughter would be there.
The doctor arrived at her house at approximately 6 PM. He parked his car in the driveway and was invited into the house, together with his two dogs. The patient the doctor and her daughter sat in the lounge room and there was some general social chat. The doctor reached into his bag and gave her a prescription for Xanax, and then pulled out the Medicare form for the previous visit and the patient signed it. She did not notice whether it was filled in or not.
The doctor then gave her some brief instructions about the use of Xanax and the amount that she could take, up to a maximum of three tablets three times a day. The patient denied that there was any other conversation at that meeting about Xanax.
Following some further chat with the patient's daughter about the Christmas presents and about the dogs, the doctor asked the patient to have a private talk and whether the patient's daughter could play elsewhere. The doctor and the patient then went outside and stood beside his car, having a cigarette.
The evidence of the patient was that the doctor then said words to the effect "There's something I wanted to talk to you about for a while. I think I've just been in denial." "I've developed feelings for you." "If you reciprocate my feelings then um, well, I'd like us to have a relationship." "I'd like to come and visit you New Year's Eve, we can spend New Year's Eve together."
The patient was very upset, and her first response to him was that she was going to need another psychiatrist. She felt under pressure and put on the spot because she realised that she was about to lose the psychiatrist who had been treating her. She repeated the comment that she would need another psychiatrist. The doctor then mentioned another psychiatrist that he could refer her to. She was unable to remember the name of this psychiatrist.
The patient's daughter then came out of the house, and the doctor asked the daughter. "Is it all right if I come back for a visit New Year's Eve?" The daughter responded that this was okay and he could bring the dogs. The doctor then said that he would come back and enquired whether the patient liked champagne. The patient responded that she did not like champagne but liked beer.
The patient then asked the doctor to call her tomorrow to talk about New Year's Eve. This was a way of making it easier to tell him that she was not interested in his affections, away from the difficult situation of dealing with it in front of her daughter. The doctor agreed to call, went back inside and retrieved the dogs. He put them in the car and left. At this stage he had left behind his bag with the Medicare pad and dog leash.
On the next day, Thursday, 30 December 2009 the patient was at a social club with some friends for lunch. She was still upset about the visit the previous night and was telling a friend about it. During the lunch the doctor telephoned her, and after identifying himself, the patient said to him "look doctor, I really don't want to date you. I really think you're a great psychiatrist, I want to keep you as my psychiatrist." The doctor then said "but I love you” and his voice sounded emotional. He also said words to the effect "I could take care of you in a different way. Don't you think you'd feel better with my arms around you?" The patient said that she responded "No, in my experience that has never helped".
The patient was feeling out of her depth and out of control in the conversation, when the doctor made comments that he cared for her, he had bulk billed her and that nothing would give him more pleasure than to help her find the right medicine and see her getting stronger. He also said words to the effect "I guess I wanted another family, I see you and (the daughter) like a package, like a ready-made family." "I want to take you and (the daughter) down the coast."
At this point the patient advised the doctor "this is really distressing me." The doctor enquired whether she had filled the prescription for Xanax and advised her to take some. The doctor then said "I love you (name) it won't just be sex, it will be the real thing, a relationship." The patient then responded "for a start, I don't include (the daughter) in my dates with men. New Year's Eve is definitely not on. I'm going to talk to my mother and ask if she can babysit, and we can go for a serious talk. I have to go." The patient denied the doctor’s evidence that she told the doctor in this conversation that she would not be able to meet with him New Year's Eve because of a little ceremony that she undertook with her daughter, involving lighting candles and exchanging presents or cards. She was trying to get him off the phone and was looking for some basis to do this. She did offer to talk to her mother to organise a time in the future for her to babysit the daughter, so that the doctor and the patient could have a serious talk. The telephone call then terminated but not until the doctor had given to the patient the doctor's private telephone number.
After the call ended, the patient told her friends what had happened, and burst into tears. The patient told her mother later that day about the phone call and how it had distressed her. The patient stayed at her parents’ house that night.
The following day (31 December 2009) the patient was at another social club in Canberra in the afternoon, having a few drinks. Her mobile phone rang, and the doctor was the caller. The doctor wished her a happy New Year and enquired whether the patient had managed to talk to her mother about babysitting the patient's daughter yet. (This was a reference back to the previous day, when the patient had referred to asking her mother to babysit so that the doctor and the patient could go for a serious talk.)
The patient said that she had not been able to speak with her parents because they were not in very good moods, and then pretended that she was having difficulty hearing the telephone call as a way of terminating it. After the termination of the call the patient told her parents about it but not in great detail because she did not wish to upset her father.

Following the phone call of 31 December, several phone calls from unknown numbers were made but the patient avoided answering her mobile phone because of concern that they might be from the doctor.
The patient had filled the prescription for Xanax, which was for a substantial quantity. The initial prescription had been for 150 tablets of Xanax of 250 micrograms with 2 repeats. Only one box of 50 tablets of the initial prescription was filled when the patient first went to the chemist. This was because the chemist only had one box. Within a week the patient went back to the chemist and obtained the other two boxes of 50 tablets each provided for on the initial prescription.
As noted earlier, on 2 January 2010 the patient sent an e-mail to a local politician about the conduct of the doctor.
The patient started taking the Xanax, including from the additional boxes that had been provided for in the prescription.
On 4 February 2010, the patient was particularly upset. She had had a phone call from mental health services telling her that they could not assign a new psychiatrist to her, and she had also been told by the person who had referred her to the doctor that this person had had a discussion with the doctor about her. Her neighbour over the road was unable to cook dinner for her children, and so the patient helped and had some drinks with a neighbour. The patient returned to her own house, and took some more Xanax. By this stage the patient realised that she was severely affected, and rang for an ambulance. She also rang her parents and got them to take away the rest of the Xanax. She told the ambulance paramedics when they arrived that she had taken Xanax but was not able to say how much. She was taken to Calvary hospital that night.
The patient was formally admitted to the emergency department at Calvary Hospital at 11.02 am on 5 February 2010 and stayed in the hospital until discharge on 12 February 2010.
The patient was subject to rigorous cross-examination about the evidence in her affidavit. Her initial complaint was made in the e-mail to the politician, followed by the interview with the commission. Her affidavit of April 2011 was made some 16 months after the events described. She had made an earlier affidavit, which was not relied upon in these proceedings. She explained that it was not until she sat down with the solicitor for the board that she was able to remember in detail the matters that were said, and that through that process of taking an affidavit and the questioning involved by the solicitor, she was able to appreciate and focus on the issues of concern to the board. She did acknowledge that she had discussed with a private solicitor the question of taking civil proceedings against the doctor.
In evaluating her evidence, the tribunal has had regard to the differences in time between the various statements, and also her realistic acknowledgement that she could not remember everything word perfectly after this time. She maintained that the words about the doctor loving her, and wanting a relationship with her and her daughter that would be more than just sex, were accurate records of what he had said. She was clear that the effect on her of the discussion on the 29th December was quite overwhelming and unexpected and caused her great distress. Far from being flattered and simply refusing the advances, she became fearful of the doctor. Having seen her in the witness box, the tribunal is satisfied that the evidence that she has given is her best recollection of what was said, allowing for the time differences between the events and the affidavit, and the fact that she was in a state of shock.
The tribunal can see no motive for her to misrepresent the position of the doctor as at the 29th December. She had been stable and reasonably happy, and it appears that the consultation on 4 November 2009 had been constructive. In that consultation, she denied that there had been any discussion of prescribing Xanax or the dangers of mixing of Xanax and alcohol, as asserted by the doctor. It is not clear why such a discussion should have taken place as it was prior to the incident with a girlfriend that caused her the distress resulting in the doctor suggesting a prescription of Xanax. There is no reference to Xanax in the doctor's notes of this consultation.
The patient’s immediate reaction was that she would have to find another psychiatrist, and this caused her distress because she believed that she had been making good progress with the doctor. There was nothing in her demeanour in the witness box or her evidence which indicated that she had been flattered by the approach – quite the contrary. Her evidence was that the revelation by the doctor of his feelings caused her severe stress and "blanking out" because of the enormity of the issues that the discussion raised.
It is relevant to consider that the doctor knew of her matrimonial difficulties, and her wariness of men making approaches to her. To suggest (as the doctor did in his evidence) that the patient was flattered by the approach and was therefore able to handle it, is inconsistent with the demeanour of the patient before the tribunal.
The evidence of the patient as to her demeanour and the fact that she was upset after the phone call on the 30th December was supported by the affidavit of John Poile, dated 1 April 2011, which was admitted without objection or cross-examination. He was present at the club when the patient was speaking to the doctor, and gave the affidavit as evidence of the distress of the patient after the call.
In clause 3 of his affidavit, Mr Poile reported the patient saying to him and another person that the doctor had said words to the effect “he’s saying he loves me.”

Evidence of Dr Danny Sullivan.

The next witness for the board was Dr Danny Sullivan. He gave evidence by telephone from Canada, having previously provided a written report to the board. He gave evidence as an expert witness, and in accordance with the tribunal's code of conduct. He is a consultant psychiatrist, with substantial experience in community and forensic psychiatry. He has provided expert evidence in a number of jurisdictions on issues related to medical practitioners and professional conduct.
In the report, Dr Sullivan addressed the following issues:
– The clinical treatment of the patient.
–    Whether termination of the professional relationship with her was in accordance with the appropriate standard of practice.
–    The doctor's explanation of the patient’s "regression".
–    The version of events provided.
–    Prescribing of Xanax in these circumstances.
–    Whether there are concerns about public safety or public interest.
–    Any other relevant matters.
Dr Sullivan noted that he had not seen the opinion provided by Dr Michael Diamond and had not discussed the commentary which relates to that opinion.
Dr Sullivan set out in his report his review of the doctor’s clinical records, the interview between the doctor and the commission, the interview between the patient and the commission and other documentation, including the statements of explanation by the doctor. Dr Sullivan then discussed the Royal Australian and New Zealand College of Psychiatrists ("College") code of ethics, and made the following comments:
I would regard it as inappropriate in any situation to inform a patient of any desire to form a relationship with them, even if couched in non-sexual terms.
(The doctor’s) choice to inform the patient of this (termination of the doctor/patient relationship) accompanied by a prescription for a potent benzodiazepine, would appear at best misguided and at worst grossly traumatising. The patient makes it clear in her statement that she had a very positive opinion of the doctor's clinical management and was devastated that she might have to find a new psychiatrist.
The termination of the doctor/ patient relationship should be driven by the patient’s needs and not the psychiatrist’s needs, except when this is unavoidable or unforeseen. The doctor should not have informed the patient of his feelings and instead should have dealt with these through his own supervision or peer review group. If it had been necessary to cease treating, this could have been done without self-disclosure about his own issues.
It remains unclear whether the doctor sought to terminate the treating relationship in order to facilitate a potential personal relationship or because he recognised that its continuation posed an increased risk that he might engage in sexual misconduct.
I would not regard the doctor’s use of the term "regression" as clearly demeaning but perhaps as failing to recognise the patient's distress, probably due to his own impaired objectivity.
Dr Sullivan notes that there are some differences in the version of events provided by the patient and by the doctor, and he highlighted those differences in his report. He notes that disparity between versions of a factual situation is not unusual, and the determination of the veracity of the accounts and whether to rely upon them is a matter for the tribunal.
In relation to the prescribing of Xanax in these circumstances, Dr Sullivan said:
The prescribing of Xanax in these circumstances, is "concerning". It is a medication widely acknowledged as prone to abuse and with addictive potential. Its indication is for short term treatment of severe anxiety, or for "panic disorder where other treatments have failed or are inappropriate.”
While the doctor had prescribed a low dose, for a first prescription he has provided many repeats. This prescription was provided on the basis of one telephone report of a single panic episode brought about by a relational stressor being the argument with a friend. This clinical situation would not clearly warrant Xanax as a first-line agent. Xanax would not be a first-line treatment for panic disorder in a number of areas of psychiatric practice due to dependence potential.
The present prescription of Xanax at the same time as the disclosure of personal feelings and efforts to end the professional relationship is strongly suggestive of the doctor's ambivalence about cessation of the professional relationship, and in the context of his wishing to develop a personal relationship with the patient, is inappropriate.
The doctor's prescription in these circumstances was ill judged and unsafe without a clear plan for another psychiatrist to take over the patient's care.
The doctor's actions clearly raised an issue of public safety, and his handling of an emotional interest in the patient raised significant concerns about the doctor's meeting his own needs for gratification from patients.
The doctor's communications suggest that he is unable to appreciate that commencing a relationship with a patient, even if non-sexual, is not a simple matter as ceasing the treating relationship and asking if the patient is interested. Efforts to meet socially in the evening to discuss the possibility of a future relationship clearly constitute a boundary violation.
Dr Sullivan then commented that if the doctor’s registration was cancelled and was to be re-registered, he would need to demonstrate a clear and sustained understanding of how his behaviour had harmed the patient, and had related not to her welfare but to his own perceived needs. Dr Sullivan believed that the doctor would require a concerted intensive course of treatment from an established and experienced psychiatrist to provide appropriate feedback about his conduct. In his opinion, a one-hour course on boundary violations would be utterly insufficient to explore the issue appropriately. He elaborated on his reasons for that.
While Dr Sullivan was critical of the volume of Xanax prescribed, he noted that the use of the streamlined authority number 1589 involves mis-stating the diagnosis in order to obtain medication at PBS rates rather than private costs. This is a common practice, one intended for the welfare of patients who might otherwise be unable to afford medication.

Evidence of Dr. Michael Diamond.

When the matter came before the commission, a report was obtained from Dr Diamond. He provided an extensive report dated 4 September 2010. This was supplemented by a further short report of 10 October 2010.
In his original report, Dr Diamond sets out his qualifications and his extensive experience in managing cases of alleged professional misconduct. He notes that he has sat on medical tribunals enquiring into professional misconduct of medical practitioners, and that he has provided significant input into the College in relation to the guidelines for Fellows of the College to properly maintain professional boundaries. In addition to his medicolegal and forensic psychiatric practice he continues a clinical practice treating patients with a wide variety of psychiatric disorders.
The initial report from Dr Diamond did not state that he was providing this as an expert, and as bound by the tribunal’s code of conduct for experts. Counsel for the doctor sought to have the report excluded on this basis. The tribunal decided to admit the report. At the commencement of Dr Diamond ‘s evidence, he acknowledged that he had read the tribunal's code of conduct for experts, that he was familiar with such codes, and that there was nothing in his report (beyond some minor typographical errors) that he would change in the light of his obligations as an expert witness.
Dr Diamond's report was severely critical of the conduct of the doctor in relation to the patient. He noted that the doctor must have been aware of the code of ethics of the College, which has prohibitions about establishing a relationship, even a nonsexual relationship, with patients. His long practice as a psychiatrist, his membership as a Fellow of the College and his former membership of the board would have given him this understanding.
In his lengthy report, Dr Diamond recognised that the determination of the factual issues was a matter for the tribunal. However, he expressed his opinions about the conduct of the doctor on the basis of the evidence given by him as well as the patient. While acknowledging that there were differences in detail between how the patient and the doctor described the interactions, Dr Diamond's fundamental criticism was that there was no need for the doctor to involve the patient in his thoughts and fantasies about her. In doing so under the guise of being honest with her, he was doing the damage that as a psychiatrist he should always avoid in the interests of the patient.
Dr Diamond's view was that while the doctor had purported to seek guidance about his feelings from a member of his peer group, the timing and content of that interchange was grossly inadequate as a method of determining an appropriate course of conduct. For the doctor to have then acted on that advice without seeking the experience of a psychiatrist peer to discuss the matter in depth was a totally unsatisfactory response. While the psychologist could well have been an experienced and capable person in his own field, his advice could not be considered as equal to that of an experienced psychiatrist peer, because he would not share the detailed knowledge of the code of ethics and the approach that a psychiatrist should take in this situation.
Even accepting the version of events in the doctor’s affidavit, Dr Diamond maintained in his oral evidence before the tribunal that the concluding comments in his opinion of 4 September 2010 were appropriate in all the circumstances. An intensive cross-examination by counsel for the doctor did not result in him withdrawing from or substantially modifying those conclusions.
Dr Diamond's conclusions were as follows:
The Doctor, in my view, has exhibited features of predatory, exploitative, self-serving behaviour towards his patient. Whatever his justification might be, it is wrong for him to have involved the patient in his attempt to satisfy his personal needs. What he has done has not demonstrated the basic ethical position of doing what is best for one’s patient, and importantly, not doing harm. He has clearly acted on his own personal needs over and above those of the patient.
It is facile to argue that he was protecting his patent from disappointment or abandonment. There was no indication for the patient to be exposed to any of his conduct.
Whether or not the doctor was a lonely man who needed company, it was never a matter for his patient to provide that company.
My interpretation of the account of events, albeit conflicted, is that the contact with the patient was seductive, predatory, manipulative and persistent.
The attempt of seeking “peer review” fell far short of competent or appropriate peer review. My understanding is that the doctor would have been hard-pressed to find a true peer, or reasonable knowledge or experience in the area of maintaining appropriate professional boundaries, who would have agreed with his course of action.
The conduct of the doctor, in this case, meets with my most severe criticism. Such conduct by a psychiatrist towards their patient can never be justified. The harm that such conduct causes is clearly seen to have occurred in this case.
Three affidavits were filed on behalf of the doctor in this matter, the first dated 16 December 2010, the second dated the 7 February 2011 and the third dated 23 May 2011. Both of the first two affidavits set out the treating relationship between the doctor and the patient, and in particular the events of 29 – 31 December 2009. The third affidavit related to the course in boundary violations attended by the doctor.
The doctor also attended at an interview with an officer of the commission on 3 March 2010. The doctor was legally represented at this interview. In that interview the doctor confirmed that romantic or personal thoughts about the patient had been intruding on him since about the middle or late December 2009. He acknowledged that the thoughts he had about the patient were persistent even though he did not describe them as sexual thoughts. They disturbed him to the point where he wasn't thinking about other patients. It was then that he decided to consult with the psychologist member of his peer group and they formed the view that it was a good idea to go and visit the patient at her home, to "even out the power situation and it's on her territory…". The doctor said that the purpose of the visit was to explain to the patient the feelings that the doctor had for her, and to terminate the treating relationship.
The doctor was a member of a college approved peer review group, consisting of one other psychiatrist and a psychologist. He gave evidence that other psychologists attended the peer review group from time to time, although they were not members of the group as formally endorsed by the College. The other psychiatrist in the peer group was away at the time and could not be consulted. The doctor considered that the psychologist member of the peer group was an experienced person who could bring insight into the way in which he should deal with his feelings and communicate them to the patient
The doctor had called upon the psychologist on 27 December 2009 without an appointment, late in the afternoon at a time when the psychologist was seeking to leave on holidays. They had discussed the matter for some 20 minutes, concluding that the best thing was for the doctor to go round to the patient's house (as a way of evening up the power balance between them) and explain his feelings for her and tell her that she would have to have another psychiatrist. The psychologist acknowledged in a telephone call with an officer of the commission that he had "pushed the doctor out the door" because of the pressure to get away. The psychologist was not called to give evidence. The doctor did acknowledge that the substance of the file note taken by the officer of the commission was an accurate record of his discussion with the psychologist.

While the psychologist was an experienced practitioner, he would not necessarily have been aware of the College’s Code of Ethics, and according to the doctor made disparaging comments about them being "all written by lawyers." It was two days after this discussion that the doctor went to the house of the patient.
The doctor denied in his interview with the commission and in his affidavits that when he went to the house of the patient he was looking for a relationship with the patient, but that he had these thoughts of them being “a happy domestic couple.” He denied that he said to her that he loved her, although he acknowledged that he did talk about his feelings and “whether they can be called love”. He denied that he said that "if you were depressed I could put my arms around you and comfort you”, nor did he recall asking whether she liked champagne. He did acknowledge that she and her daughter were a "ready-made family" and that he had been missing his own children who had moved out from his house in September, and that he was lonely. He also mentioned the appeal of taking the patient and her daughter to the coast and playing on the beach and building sand castles. In the interview of 3 March 2010 the doctor acknowledged that at the end of the discussion outside the patient's house on 29 December, he enquired from the patient's daughter about whether she would like him to come around again and bring his dogs with him.
In cross-examination, the doctor drew a distinction between a romantic advance and what could be construed as a sexual advance. He denied that he had sexual feelings towards the patient, and maintained that because his thoughts were romantic this would not constitute a breach of the code of ethics. He did not believe that the patient would perceive the advance as a sexual one. He also confirmed that in considering the matter at this time he did not consider the prohibitions in the code of ethics.
There was no indication in the statement to the commission or in the doctor's affidavits that he gave serious thought to what might happen to the patient after he left her house, she then being alone with her eight year old daughter after the doctor had dropped what he himself described as "a bit of a bombshell." – that is, the revelation of his feelings towards her.
In both of the earlier affidavits, the doctor confirms that he had a conversation about his thoughts concerning the patient, how nice it would be to have her around and he had imagined blissful domestic scenes at home, such as having a meal, watching TV, at the beach with the patient and her daughter. His affidavit acknowledges that he was not clear about "what to call these feelings, whether to call them love, but there they are, and that means I can't really go on with treating you or being your psychiatrist." He also indicated that he was unsure about the patient's feelings concerning this were likely to be, and that he said and that she would need time to think about what was said and asked if there is anything that she wanted to say right then.
The doctor’s affidavit indicated that the patient said words to the effect that she was "blown away" and “flattered" but that her main worry was finding another psychiatrist. The doctor indicated that he said words to the effect that there would be a need to find another psychiatrist and that he suggested the name of a practitioner who he thought would be suitable. He confirmed that he wished to meet again with the patient in an unhurried situation to discuss the matter further and that her response to this idea was that "I think it's a very good idea". The doctor then suggested that he come by on New Year's Eve at a time after the patient's child was in bed, about 8 PM on his way to see his family. The patient had agreed to this suggestion. The doctor then said goodbye and left to see his family, leaving behind the dog leads and a prescription pad in the shopping bag in the patient’s sitting room.
The doctor denied telling the patient that he wanted to date her, or that he would spend New Year's Eve with her and her daughter. He also denied that he enquired whether she liked champagne. When pressed in cross-examination as to whether the patient might interpret a proposal to visit on New Year's Eve as a romantic approach, the doctor maintained that he did not see any particular significance in this day or that New Year’s Eve was a romantic or special occasion. He saw it as not much different from any other day in which he has worked through the holidays.
The doctor acknowledged that he had not taken any steps to see if any other psychiatrist would be available to treat the patient, even though he maintained that his basic concern was to terminate the relationship. He agreed with counsel for the board that it would be difficult to find another psychiatrist at this time as most are on leave between Christmas and New Year. The doctor acknowledged that in going to see the patient and have this discussion about his feelings for her, he was going to "drop a bit of a bombshell on her." He also acknowledged that such a bombshell could be a possible cause of further deterioration in the patient. When put to him in cross-examination, he conceded that by going to the patient's house with the script this was simply a pretence because his real purpose was to disclose his feelings to the patient. He also conceded that the patient might feel ambushed by being told that the purpose of the visit on the 29th December was to provide her with the prescription for Xanax, when the purpose of the visit was quite different.
The doctor's evidence was that the patient then telephoned him on the 30 December 2009, asking him to call her. (In her cross-examination the patient had denied making such a call.) The doctor then phoned the patient in the evening. While the evidence of the patient was that she was at a club when the call was received, the doctor said that he heard no background noise that in any way suggested to him that she was at the club. He said there was a brief conversation in which the patient had said that she did not think it was a good idea for him to come and see her on New Year's Eve, and that it was her policy not to meet men at her home and not to involve them with her daughter. The doctor responded with words to the effect that he was not thinking about becoming the patient's boyfriend nor was he asking her to have an affair with him. When he had thoughts about the patient they were of the patient and her daughter as a family unit. The patient responded that New Year's Eve she had a special little ceremony with her daughter, lighting candles and exchanging gifts and cards and she didn't want anybody else there on New Year's Eve. The doctor then said that he respected that and asked her for an alternative time when they could meet for a talk and arrange a referral to another psychiatrist. Her response was that it could be in several days time, but she would have to get her mother to look after her daughter. The doctor gave her his private telephone number because he would not be in his rooms over the next couple of days. The doctor denied that he told the patient that he loved her and that he did not recall her saying that she wanted to keep him as a psychiatrist.
The doctor made a further phone call on the 31 December 2009 to the patient at about 8 PM. He recalled hearing background noise that suggested that she was out at a bar or club. The patient said that she hadn't had a chance to ask her mother about babysitting although she was out with her mother at the moment. While the doctor's response was that the patient would be able to ask her mother, the patient responded to the effect of "well I don't know. I have to pick the right time to ask." The doctor did not receive any further telephone calls from the patient to discuss transfer to another psychiatrist. He made no further enquiries about alternative treatment for her.
The doctor also acknowledged that he had made several phone calls to the patient after this, but she had failed to answer the phone and the calls rang out.
The doctor gave evidence concerning the prescription of Xanax. There is no indication in the clinical notes of the doctor of any need for this medication prior to the 29 December 2009. It is clear from the evidence of both the doctor and the patient that the patient had rung the doctor late in November or early December in a very upset condition following a verbal fight with a friend. The doctor considered it appropriate to prescribe Xanax for her, and in the phone call indicated that he would send her a prescription for it. He later gave evidence that his final decision whether or not to prescribe the drug would depend upon his assessment of the patient when he met her on 29 December.
There are restrictions on the prescribing of this medication which require that the doctor obtains a Medicare approval to prescribe that medication under the Pharmaceutical Benefits Scheme. Prior to seeing the patient on 29 December, the doctor had rung for and was given an authorisation. The person authorising told the doctor that it would be possible to obtain a maximum prescription of 150 tablets in the initial prescription, with two repeats. The doctor decided to prescribe that quantity of the medication.
Prior to going to the patient's house, the doctor had written a prescription for this quantity of Xanax but had not made a firm decision one way or another about whether to prescribe the drug. While he arrived at the house with a prescription filled out, his evidence was that he could not recall whether the note in his clinical notes about prescribing the drug, dated 29 December, was written before or after he saw the patient. Notwithstanding that he had written out the script, he was still intending to make an assessment and decision about whether to prescribe Xanax after seeing the patient.
In his evidence, the doctor indicated that he had taken into account the potentially addictive effects of Xanax, although he gave evidence that he did not consider it more potentially addictive than alcohol. He was also aware of the expertise of Professor Graham Burrows, who had conducted trials on the drug and whose opinion was that this class of drugs can be useful in the management of anxiety disorders to facilitate their safe and appropriate use of treatment of patients with anxiety states.
At the meeting on 29 December, at the patient's home, the patient’s daughter was present before the doctor and the patient went outside. The doctor decided on the basis of that interaction that the Xanax was warranted and gave the patient the prescription. The patient subsequently filled the prescription for the drug. The doctor maintains that at the meeting on 29 December, he advised the patient about the effect of Xanax and the importance of not mixing it with alcohol. Such advice (if given) would have been given in the presence of the patient’s daughter.
The doctor did acknowledge in his evidence that part of the reason for giving her the prescription was because he had previously offered to send her the prescription for her anxiety following the verbal fight with a friend, and that he felt sorry for her. He also acknowledged that he erred in prescribing the drug prior to referring her to another psychiatrist, who could monitor her condition.
In cross-examination, the doctor conceded that he had had a discussion with another person about the patient. This person was the one who had referred the patient to the doctor. The person had telephoned the doctor and said that patient had told this person that the doctor had told the patient that he had feelings for her, and that the patient had been in contact with the commission. In this conversation, the person said that the patient was boasting that the officer of the commission had said "if we don't get him on the other thing, we’ll get him on the Xanax." The doctor acknowledged that he confirmed to this person that there had been a complaint and that what the patient had revealed to this person about her complaint was correct. The doctor denied that he had discussed anything else about the patient's treatment or history, but merely confirmed that the patient was the one who had been referred by the person a year previously.
As noted previously, the patient was formally admitted to hospital on 5 February 2010 at 11 AM. It appears that she was taken to hospital the previous evening by ambulance that she had called, and the initial diagnosis at the hospital was depression and anxiety with a presenting problem of an overdose of Xanax with alcohol “to block things out but not to kill herself.” The admission notes for her discharge note that her main stressor is “she states that her psychiatrist has been sexually harassing her, and she has lodged a complaint against him."
In his evidence, the doctor contested whether there had been evidence of an overdose on Xanax, particularly as the patient had not been tested for this in the pathology examinations at the hospital. The patient was eventually discharged on 12 February 2010. The patient’s self report of an excessive use of Xanax did not appear from the hospital notes to have been questioned by the treating doctors in hospital as inconsistent with the clinical presentation that they encountered.
The doctor had obtained a report from Associate Professor Graham Starmer, a consultant psychopharmacologist. Prof Starmer had prepared an independent report on the half life of Xanax, and whether having regard to the clinical notes there was evidence that the patient had actually taken Xanax as reported in the admission to Calvary Hospital. He noted that there had been no specific test for Xanax as part of the pathology testing. The report was admitted without objection.
The doctor did acknowledge in his affidavit of 7 February 2011 that the manner of his termination of the doctor/patient relationship may well have been a contributing factor to the patient's decompensation, leading to her need for hospitalisation in February 2010.
Counsel for the board cross-examined the doctor on the report that had been filed on his behalf by Dr Petroff. The doctor acknowledged that the report had been based on some telephone discussions with him rather than a face-to-face interview. It was put to the doctor that the report of Dr Petroff referred to the doctor acknowledging that he had intended to make advances on the patient, but the doctor maintained that this was a misinterpretation by Dr Petroff. The doctor also conceded that the words in Dr Petroff's report referring to the patient "running around in pubs and telling a lot of people about it” (the discussion between the patient and the doctor) was something that the doctor had told Dr Petroff, based on information that had been given to him by his son. The doctor denied that this was a pejorative comment intended to reflect on the patient, but was simply a statement of fact.
A report from Dr Drew was tendered to the board. Dr Drew had been advising the doctor in a mentoring capacity, and had been discussing with him the circumstances leading to the events of 29 December and what the doctor had learned from them. The doctor referred to some changes in the way in which he intended to practice as a result of that mentoring discussion.
The doctor denied that he was affected by drugs other than those prescribed for medical conditions, and he maintained that while not a teetotaller, he rarely drank alcohol.
The doctor gave the evidence about his medical conditions which required the use of opiates to control back and neck pain. The medication was 20mg of oxycontine, three times per day. This medication was prescribed for him by his general practitioner and a pain specialist at St Vincent’s Hospital. The doctor had been taking these more than five years but he denied that the use of them affected his judgment. He had been taking these at the time of the events complained of.

Evidence of Dr Leslie Drew.

Dr Drew gave evidence to the board about his professional relationship with the doctor. Dr Drew is a fellow of the College and a senior staff specialist with the Mental Health Service of the ACT. He is a specialist lecturer at Sydney University and the Australian National University and has held senior positions in the Victorian, New South Wales and Commonwealth health departments. He has practised as a psychiatrist for 50 years. He had been providing mentoring services by regular consultations with the doctor, as a condition of the initial stay order granted by the tribunal. While this was not a formal patient /psychiatrist therapy relationship, Dr Drew has been providing advice and informal mentoring to the doctor for about five or six years, although he has known him for much longer. He did acknowledge that the evidence given by the doctor as to the events of the 29th December constituted a significant departure from the ethical standards required of a practitioner of the standing of the doctor. He also expressed the view that following the discussions with the doctor, he considered that the doctor was now able to identify potential boundary issues in spite of this major and significant inexplicable lapse of judgement. He had encouraged the doctor to practice much more defensively in the future.

Evidence of Dr Petroff.

Dr Petroff is a consultant psychiatrist, practising in Lismore New South Wales and in nearby centres. He had prepared a report of the 31 January 2011 and a second report of 11 April 2011. The first of these was based on telephone discussions with the doctor, and the second was a commentary on the report of Dr Diamond.
Dr Petroff's report of the 31 January 2011 sets out the history of the events with the patient as recounted by the doctor, including the doctor’s statements that he thought the worst outcome from a disclosure of his feelings to her would be for the patient to feel flattered, thank him, refuse his advances and ask for a referral to another psychiatrist. So on the whole, (according to the doctor’s statements to Dr Petroff) this would be a positive experience for the patient. However, in retrospect the doctor saw that she then avoided him, became alarmed, anxious and his behaviour caused chagrin for the patient and resulted in her running around pubs and telling a lot of people about it. The doctor now regrets that the patient suffered in the way that she did.
The report indicated that the doctor had told Dr Petroff that the doctor should have thought the problem through more carefully and sought wider advice and management assistance from colleagues, which would have resulted in a better way of terminating the therapy with the patient. The doctor had told Dr Petroff that the mentoring sessions with Dr Drew had been very beneficial. In a phone conversation Dr Drew advised Dr Petroff that in Dr Drew’s opinion the doctor posed no further threat to his patients, was genuinely chastened by what had happened but for his own sake should continue to be supervised. Dr Drew was not able to continue that role in the long term.
Dr Petroff gave telephone evidence to the tribunal. He expressed the opinion that the doctor is not a predator, and he has suffered in his own personal relationships all through his life largely through his bad choices, despite his competence as a doctor and psychiatrist in the technical sense. The heavy price that the doctor has paid and will pay arising out of the case is very significant. The chances of the doctor offending again are not likely and he does not pose a further risk to public safety. However, for his own welfare he should continue with the type of supervision that is presently provided by Dr Drew. Dr Petroff generally supported the views of Dr Sullivan, although he disagreed with Dr Sullivan's assessment of the prescribing of Xanax. Dr Petroff did not see anything inappropriate in the doctor prescribing this drug for the patient, nor the dose of it.

Dr Petroff also disagreed about the need for the doctor to join a group practice.
Dr Petroff provided a second report of 11 April 2011. In this, he focuses on the report of Dr Diamond and describes it as "unbalanced, brutal and lacks any compassion." He disputed the way that Dr Diamond used the term "counter transference" and the dismissal by Dr Diamond of the appropriateness of the doctor seeking advice from the psychologist member of his peer group prior to going to the house of the patient. Dr Petroff described Dr Diamond's comments on the issue of peer groups, Medicare and the use of Xanax as completely out of touch with what is happening to lone psychiatrists and the difficulties that they face. Dr Petroff did not dispute that the provisions of the code of the College in relation to boundary violations applied whether the psychiatrist practised in the city or the country.

Evidence of Dr Douglas.

As part of the conditions for the initial stay order, the doctor undertook a tailored course in professional ethics provided by Dr Charles Douglas, a surgeon and senior lecturer in clinical ethics and health law at the University of Newcastle. This was provided on 22 May 2011, and occupied about one hour. Dr. Douglas provided a report dated 22 May 2011. This was exhibit “F” to the affidavit of the doctor dated 31 May 2011. In his report, Dr Douglas set out the issues that were discussed, and the fact that the doctor had appropriate insight into the ways that his behaviour on this occasion failed to meet the accepted standards of behaviour of a medical practitioner with respect to professional boundaries.
In his report, Dr Douglas also expressed the opinion that the failure to maintain professional boundaries is probably rarely an issue of knowledge deficit alone. Dr Douglas indicated that he was not in a position to give an overall opinion about the likelihood that the doctor would transgress professional boundaries in the future. He did make a comment that given that the doctor has been practising psychiatry for many years and has clearly satisfactory intellectual grasp of ethical issues generally and of the boundary issues in particular, it seems unlikely that his lapse with regard to professional boundaries in this matter was predominantly a matter of knowledge deficit.
Dr. Douglas gave evidence by telephone. In cross-examination, Dr Douglas acknowledged that it was difficult to judge the question of a person's insight. He was not in a position to give an opinion about the likelihood that the doctor will transgress in the future, because he was unaware of patterns of behaviour in the past and he did not know all the facts of this particular case. His comment about insight relates to knowledge, at a purely intellectual level. The doctor could tell Dr Douglas why what he did was wrong, but that may be a very academic sort of an insight.

Further material from the doctor.

On 22 August 2011 when the matter was before the tribunal for oral submissions, the tribunal received a letter from the doctor in Sydney, enclosing letters from some 37 of his patients and stating that the letters attested to the ethical and caring way in which he cared for them. In the covering letter, the doctor said that he had wanted to call the person who had discussed the patient's case with his practice manager, but there had been insufficient time in the case. The letters were said by the doctor to be submitted as part of his final submissions in the case. No indication had been given during the hearing that the doctor wished the person to be called.
The tribunal did not read the individual patient letters. When the matter was raised in hearing, counsel for the doctor asked that the letters not be read, and that he be given the opportunity to obtain further instructions. Upon getting those further instructions, the tribunal was advised that the letter from the doctor and the supporting letters from patients were withdrawn, and the tribunal has not considered them any further.

Submissions.

Written submissions were provided to the tribunal by both sides, and further oral submissions were made on the issues that the tribunal has to consider.

Onus and burden of proof.

As noted from the summaries of evidence above, much of the relevant evidence was not in dispute between the doctor and the patient. To the extent that there was a divergence in evidence which is relevant to the issue of determining whether there has been unprofessional conduct or professional misconduct, the onus of proof lies upon the board. This is not in dispute between the parties.
Determining the burden of proof that the tribunal must be satisfied on commences from the civil, rather than criminal, standard. The tribunal must be satisfied on the balance of probabilities that all elements of the complaints have been made out. The standard is not the criminal one in which the tribunal must be satisfied beyond all reasonable doubt. However, there is an extensive line of authority, commencing from the case of Briginshaw v. Briginshaw[1], which requires the tribunal in a case such as this to find that the case is proved to its reasonable satisfaction, having regard to the gravity of the matter. This has been expressed in the well-known extract from the decision of Dixon J (as he then was), as follows:
"but reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequences of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding or considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences. Everyone must feel that, when, for instance, the issue is on which of two dates an admitted occurrence took place, a satisfactory conclusion may be reached on materials of a kind that would not satisfy any sound and prudent judgement if the question was whether some act had been done involving grave moral delinquency." [2]
[1] Briginshaw v. Briginshaw [1938] 60 CLR 336
[2] Briginshaw op. cit. at page 362
The burden of proof has been frequently summarised in cases involving professional misconduct as requiring that it is the civil standard of the balance of probabilities, but because of the seriousness of the allegations and the gravity of their consequences, the tribunal of fact must be "comfortably satisfied" that the particulars of the complaint have been established. [3]

Consideration of the evidence.

[3] Law Society of NSW v. Foreman [1994] SC NSW 408 at 470

As indicated above, the evidence given in relation to the matters the subject of the complaint is substantially the same, although there are differences between the evidence of the doctor and patient in some crucial areas. It is necessary for the tribunal to make findings of fact on the basis of the evidence given, which involves determining where there is a conflict of evidence which evidence is to be preferred, and why. In cases such as this where there is a direct conflict between verbal evidence of what was said at a particular time, the tribunal can only proceed on the basis of its assessment of the recollection, credibility and motive to be accurate or inaccurate that can be identified with respect to each of the parties to the conversation. Extraneous evidence may be available in some circumstances (for example the file note of the commission concerning the statements by the psychologist about the discussion with the doctor) but the tribunal must have regard to all of the evidence, including prior statements such as the complaint of the patient to the politician and the interviews between the patient and the doctor with the commission officer. Regard must also be had to the ordinary human failings of recollection over a significant period of time.
It is necessary for findings of fact on the evidence to be made in order for the tribunal to satisfy itself whether there has been unprofessional conduct or professional misconduct within the meaning of the Law. Even where the doctor acknowledges that there has been some professional misconduct, the extent of it and therefore the appropriate orders of the tribunal depend upon its findings of fact.
In the critical conversations between the doctor and the patient on the 29th December at her home and 30 and 31December on the telephone, the tribunal has considered the demeanour and responses of both witnesses in giving evidence. The tribunal is satisfied that the patient gave evidence to the best of her ability to recall, and that she was clear about critical expressions that the doctor used. She acknowledged that she was in the state of extreme agitation and was blocking other things out, but that the phrases that caused her most concern were clear in her memory. The patient was not substantially shaken in cross-examination, and the tribunal found her to be a credible witness. It has taken into account any motive that she may have to overstate or misrepresent what was said to her, particularly the prospect that the finding in this tribunal may support any proceedings that she may take against the doctor. The tribunal also notes that the patient gave a generalised account of the interaction very quickly after the event in the form of the e-mail to the politician. While this does not set out in detail the whole discussion, its agitation and apprehension provides a near contemporaneous record of her feelings at the time that the exchange took place. Similarly, the patient’s interview with the commission officer made on or about 25 January 2010 contains detail of the telephone interactions and face-to-face meeting which supports the evidence that she gave in the witness box.
The evidence of the doctor was substantially the same as that of the patient in relation to the interaction on the 29th December, the telephone call on the 30th and 31st December and in his acknowledgement that he had made a number of further calls which had not been answered. The doctor denied using the phrases such as "I love you" and "I want to put my arms around you" and others, but he did confirm that he wanted to meet with the patient to discuss the issues that he had raised, including meeting on New Year's Eve.
The tribunal found the evidence of the doctor where it conflicted with that of the patient to be less convincing. His evidence was at times evasive and contradictory. He acknowledged that he proposed he should meet with the patient at eight 8 PM at the patient’s house on New Year's Eve, after her daughter had gone to bed, but denied that this could be taken as a romantic approach. He acknowledged that he had romantic thoughts about the patient and her daughter as a family unit with him, but also denied that this contained elements of a sexual approach on the basis that many of his patients in a married relationship do not have a sexual relationship. The tribunal found it very difficult to accept that, bearing in mind the ordinary understanding of New Year's Eve, a suggestion that he should meet on that day and time would not be interpreted as a romantic approach – as it was by the patient. The doctor denied that he had suggested that he bring champagne on that occasion, but the patient was clear in her recollection about this, denying that she liked champagne and saying that she liked beer.
The tribunal regarded the contents of these telephone calls as significant in determining the intentions of the doctor, and the way in which the patient would understandably interpret them. Where there is a conflict, the tribunal considers that the evidence of the patient should be preferred over that of the doctor. In particular, it considers that the telephone approach on the 30th December did includes words of a specifically romantic approach (in the doctor's words) and one which could be reasonably interpreted by the patient as a sexual approach (as it was.)
In giving his evidence, the doctor acknowledged that he had been guilty of a grave error of judgement in the way in which he approached the patient to achieve his stated purpose of terminating treatment following the development of his feelings for her. His initial telephone call to her was ostensibly to check up on how she had been feeling over Christmas, bearing in mind the difficulties that she had had over the previous Christmas. His real intention was to make an appointment to go and see her at home to disclose his feelings about her and talk about alternative treatment.

This misrepresentation of the purpose in making a phone call does not sit easily with his evidence that he did not consider that he should tell lies to his patient and that he should be honest about his feelings. There seemed to be no considered reflection prior to the doctor approaching the patient about the effect that such an approach would have on her, although he acknowledged that going to see her to discuss these matters and his feelings would be "a bit of a bombshell." Having dropped the bomb, the doctor simply left without any obvious regard as to how the patient would handle the matter that night, or indeed over the coming days. The offers to meet and talk further about his revelations seem to the tribunal to have completely disregarded the consideration of the vulnerability of the patient that the doctor would have been aware of through his treatment of her over the preceding year, and which as a matter of ordinary human emotion were likely to follow from such an announcement.
Whether from a lack of ordinary human insight or an unwillingness to be frank with the tribunal, the tribunal is not satisfied that the doctor's version of events where there is conflict with the patient is to be relied upon, and accepts the evidence of the patient as satisfying it to the required degree.
Findings in relation to particular complaints.
In relation to the prescription of Xanax, the tribunal is satisfied to the required degree as to the following matters:
– over the course of treatment prior to the telephone call in late November early December, the doctor did not consider that the prescribing of Xanax was necessary for the patient’s pre-existing condition, and the first time that its use was considered was after the patient had rung the doctor following the argument with her friend:
–from his prior knowledge of the patient's condition, the doctor was sufficiently concerned at the time of the telephone call in November/December 2009 to consider prescribing Xanax to reduce any further panic attacks. There was dispute between the expert witnesses as to whether this was a desirable course, bearing in mind that the dispensing indications were for severe panic attacks in circumstances where other treatments had been unsuccessful. The tribunal accepts that there was a professional judgement to be made by the doctor at the time of the initial telephone call, having regard to his knowledge of the patient and her prior psychiatric history;
–the patient had made a further phone call requesting the prescription after it had not been immediately sent by the doctor. The doctor undertook no further clinical evaluation of the need for Xanax at that time, but was motivated by what he saw as an "undertaking to the patient" to provide the medication.

–As the medication was on a restricted list the doctor was required to obtain approval from government medical authorities to dispense the medication. Having been told that he could prescribe a quantity of 150 tablets with two repeats, he was motivated to prescribe this amount out of concern for the patient’s financial condition, rather than from any evaluation of her need to use the medication over a long period. He also failed to exercise any judgement as to whether the patient would respond to an initial dose of the medication, and if so whether and for how long she should continue to take it.

–While the doctor considered that Xanax was a safer drug than alcohol for the patient to take, the expert evidence satisfies the tribunal that its use without careful explanation and monitoring contained risks to the patient that should have been considered. If the doctor was to continue treatment, a treatment regime should have been established. This was not done.

–The doctor had prepared a prescription for Xanax prior to going to the patient's home on 29 December 2009. There was no serious evaluation of the need for the patient to take this medication undertaken at that time, as the discussion in the patient's house was in the presence of her daughter and involved social discussion of a general nature. While the issue may have been touched on, it is clear that the doctor did not explore the existing state of the patient’s concern about the panic attack – indeed the purpose of attending was principally to tell the patient about his feelings. It is not credible that any serious evaluation of the patient’s need for Xanax could have been undertaken at that time.

–as the doctor had prescribed a substantial quantity of Xanax but was not intending to continue treatment and had no arrangements in place for another psychiatrist to be available to treat the patient, the patient was at risk because of a lack of evaluation of the response to the drug.

–Instructions given by the doctor to the patient about the likely side effects of the drug and the effect of taking it with alcohol appear to be cursory at best, and did not take place in the initial discussion between the patient and the doctor over the telephone.

Having regard to these matters, the tribunal finds that the prescription of Xanax in these circumstances is conduct substantially below the conduct expected of a psychiatrist of the standing of the doctor.
The doctor's disclosure of his feelings to the patient and related conduct. In relation to these grounds of complaint, the tribunal is satisfied to the required degree as to the following matters:
–at the time the doctor approached the patient to disclose his feelings, there was no clinical need for him to be in contact with her. While she had contacted him some time previously to advise of the verbal fight with a friend and the doctor had indicated that he would prescribe Xanax, there was no evidence that at the time of the approach to the patient, she was requiring immediate attention for a panic attack;
–the initial approach to the patient involved a subterfuge, being an enquiry as to how she had been over the Christmas period, rather than stating the true reason for the visit. Had the patient been aware of the true reason, she may have been in a position to refuse the visit or have had others present to assist her;
–the discussion between the doctor and the patient on the 29th and 30th of December 2009 did involve declarations of love, and of the doctor’s wish to establish a family, romantic relationship with the patient and her daughter. There was no indication that either before or during these telephone calls that the patient had any interest in these matters, or that she reciprocated them.
–the persistence of the telephone calls, after the patient had ceased answering her phone because of her concern that it was the doctor ringing may have been partly motivated by his concern for his conclusion that the approach had gone badly wrong, but was again putting his own needs to communicate with her about his feelings ahead of a professional judgement about care for her.
The tribunal is satisfied that the doctor's conduct in relation to these matters falls substantially below the standard expected of a psychiatrist of the standing of the doctor.
The approach of the doctor in seeking peer review. As indicated above, the doctor has a peer review group approved by the College consisting of himself, another psychiatrist practising in Canberra and a practising psychologist. At the time that the doctor's feelings for the patient emerged, the psychiatrist was unavailable for advice as he was on holidays. Accordingly, the doctor took advice from the psychologist member of his peer group. While the doctor recognised that obtaining advice about his feelings and how to deal with them in the context of any future treatment of the patient was something that he should undertake, the tribunal is satisfied to the required degree that the steps that he undertook in relation to this matter were inadequate, for the following reasons:
–while the psychologist was an experienced person in his own profession, he could not have been expected to have been familiar with the codes of ethics of the College. The doctor did not raise with him the necessity or appropriateness of considering those codes in the circumstances, and the psychologist does not appear to have done so either. The psychologist’s comment to the commission officer could be interpreted as one dismissive of the significance of codes of ethics, but they did not form part of the discussion between him and the doctor. They should have been the starting point.
–The doctor’s approach to the psychologist to discuss the matter, at a time when the psychologist was packing up to leave on holidays, would not have allowed the unhurried and in-depth discussion that was required about a situation where the doctor himself had to a significant degree lost his own capacity for judgement.
–While the consultations and advice within the doctor’s peer group may have been quite appropriate where treatment of patients was being considered without the emotional content of this case, the failure of the doctor to recognise the need for consultation with an experienced psychiatrist colleague because his own feelings could lead to a lack of judgement about the presentation of the matter, and to delay any action until that had been undertaken, lead to a quite inappropriate interchange between the patient and the doctor at the patient's home.

The tribunal is not satisfied that the doctor's approach to the psychologist was itself part of the scheme to provide some justification for an already existing decision to approach the patient, or that the approach to the psychologist was manipulative. However, the manner in which the doctor approached the psychologist and the inadequacy of the process of obtaining peer review about his problem indicates the extent to which the doctor had lost the capacity for objective judgement as to the course that he should take.
The tribunal's view is that the conduct of the doctor in relation to these matters falls substantially below the standard that would be expected of a senior practitioner of the standing of the doctor.

The doctor's failure to ensure continuity of care for the patient.
–The doctor acknowledged that going to see the patient and disclosing his romantic feelings for her in her own home would be "a bit of a bombshell." To have then proceeded to carry out this course of conduct on the basis of a false representation to the patient, and then to leave in a hurry without any apparent thought as to how she was meant to deal with the situation, particularly with her daughter with her in the house, is a substantial failure of the doctor’s obligation to care for the patient.
–The failure of the doctor to take any steps to arrange for continuity of care for the patient by approaching another psychiatrist or providing any other form of support and care for her at the time that was by his own admissions to be one of emotional distress that he had caused is also a grave dereliction of his obligation to the patient.
The tribunal considers to the required degree that the failures by the doctor in this regard again amount to a substantial failure to comply with the standards expected of a practitioner of his experience and standing.
The discussion of the patient’s situation with another person.
– The tribunal is satisfied that the doctor did have a discussion with another person about the patient's situation, following the visit and telephone calls in December 2009. The evidence is that the discussion was brief, and was with a person who had been instrumental in arranging for the doctor to see the patient. While such a discussion was inappropriate and unethical, and the tribunal considers that it was unprofessional conduct, the circumstances under which the single discussion took place was not a breach of professional standards to the same extent as the other matters set out above. Having regard to the stress that the doctor was under and no doubt the confusion in his mind as to the reaction of the patient to his overtures, the tribunal considers that this falls within the category of unprofessional conduct rather than professional misconduct.

Appropriate orders.

There is a high degree of responsibility placed on psychiatrists to avoid boundary violations with a patient. The specialist training and the focus of their work on the psyches of people with significant mental health problems and the relationship of authority with the patient that their treatment procedures gives, has a corresponding high degree of obligation to avoid boundary violations with the risk of further damage to the patient. This is particularly so in this case, where the experience and standing of the doctor and his experiences on the board and the College are taken into account. Those factors justify finding of professional misconduct rather than unsatisfactory professional conduct.
The tribunal is satisfied to the required degree that the conduct of the doctor as set out in paragraphs 150 to 156 above should be looked at as a continuous incident, rather than as a number of separate breaches. Each of the separate breaches referred to in those paragraphs is to some extent dependent on the others, and they each arise out of a course of conduct commencing on 27 December 2009 with the discussion with the psychologist, and ending as far as the interaction with the patient is concerned when the patient refused to take further telephone calls from the doctor. There was then the incident of the discussion of the patient’s position with the third person.
The tribunal has given consideration to the definition of "substantial" referred to in the definition of professional misconduct. The tribunal is satisfied that the conduct over this period, viewed as a whole and as the individual parts set out in paragraphs 150 to 156 above constitutes professional misconduct within the meaning of the Law.
The tribunal notes that the doctor was subject of a review by a personal assessment panel established by the ACT board of the board in April 2009. The report of the panel was tendered to the tribunal. In a report, the summary notes as follows:
"Although (the doctor) admitted that he prescribed prescription drugs inappropriately to (a named person) and other relatives and friends, he accepts that this was wrong. He states that he has ceased this practice and intends to exercise more care in the future."
Having regard to the findings of the tribunal in relation to the prescription of Xanax, the intention of the doctor set out in the report of the panel has not been complied with.
On 10 June 2011 the tribunal made a condition of the further stay order that the doctor should submit to having an examination by an occupational physician nominated by the board. The purpose of the assessment was to obtain further evidence on the capacity of the doctor to continue to practice having regard to his medical issues raised in the hearing, including the use of prescribed and (possibly) non-prescribed drugs.
The doctor sought the removal of this condition and indicated that as the date proposed for the examination was during a time that he was on holidays in Sydney he would not attend the appointment. The appointment was with a practitioner in Sydney. The tribunal considered this to be a totally inadequate response.
The tribunal notes from the report of Dr Douglas and from the evidence of Dr Drew that the issue with the doctor is not a lack of knowledge about boundary violations: leaving the tribunal searching for the appropriate orders to attempt to determine what it is in the personality and method of practice of the doctor that has led to the situation.
It is clear from the leading authorities in the area of occupational discipline[4] that the purpose of these proceedings is not to punish the doctor: the principle purpose is to protect the public from practitioners who failed to maintain the high standards necessary to treat patients safely. A further purpose is to demonstrate both to the public and to the members of the profession that significant breaches of the obligations of a practitioner are not acceptable, and that to ensure the confidence of the public in medical practitioners that those breaches have consequences.
[4] See Re: A Medical Practitioner [1993 No. 2] 2QDR 154,
Healthcare Complaints Commission v. Litchfield [NSWCA] 41 NSWLR 630 at P. 638,
Law Society of NSW v. Foreman 34 NSWLR 408 at 470, 471
Saville v. Healthcare Complaints Commissioner & Anor [2006] NSWCA 298 at paragraph 45.
The tribunal has also taken into account the evidence of Dr Drew that over the years, the doctor has provided psychiatric care to many people who may otherwise have been unable to access it. While this is commendable, the tribunal must focus on the evidence in this case, and the most appropriate course to take having regard to that evidence. The tribunal also notes that in the letter from the doctor referred to in paragraph 136, there are many of the doctor’s patients who have provided letters which presumably support his case. Even if the material had been tendered by the doctor’s legal representatives, it is of very limited value to the tribunal unless it is clear what those patients were told (presumably without further breaching the patient's confidentiality) including the extent of the admissions by the doctor himself. There would also be an issue as to whether in writing any testimonial in support of the doctor, those other patients were aware of the professional obligations on the doctor imposed by the Code, and could evaluate his conduct in the light of this.
The tribunal notes from both the evidence of Dr Diamond and Dr Sullivan that in cases of boundary violation by experienced medical practitioners, the process of understanding why they occurred and how they should be treated and assisted is a complicated process requiring extensive consultation and challenging interpersonal treatment with another psychiatrist.
The evidence of the doctor in the stay proceedings was that he had no substantial financial assets, and it follows that he is not in a position to pay any fines that the tribunal might impose. The tribunal rejects the imposition of a fine as inappropriate in such a case.
The tribunal has considered the question of whether there should be a period of suspension of the doctor, and if so, on what conditions. Having regard to the tribunal's assessment of the doctor's evidence, and the findings against him, the tribunal has come to the view that at the present time the doctor is not in a fit and proper state to continue in practice as a psychiatrist. It is a question beyond the competence of this tribunal as to whether, and if so, at what time, the doctor may be able to demonstrate that he is again competent to practice. Accordingly, it is not appropriate that the tribunal simply suspend his registration, whether or not on conditions, because the tribunal cannot make the appropriate judgement about the time of resumption of practice. This decision must be left in the hands of the board and its expert advisors.
The decision of the tribunal pursuant to sections 196(2)(e) of the Law is that the decision of the board of 6 December 2010 is set aside. The tribunal substitutes a decision that the doctor's registration is cancelled, with effect from the date of this decision. The tribunal is unable to determine a specified period for cancellation pursuant to section 196(4). That decision will depend upon evidence that the doctor may wish to put forward, and the expert evaluation of that evidence. The tribunal’s decision will not prevent him reapplying for registration at a suitable time in the future, but this is a matter for others.

………………………………..
Mr C.G Chenoweth
Senior Member
For and on behalf of the Tribunal

PUBLICATION DETAILS

TO BE PUBLISHED

To be completed by Tribunal Staff

PART A

FILE NUMBER:	OD 10/12
PARTIES, APPLICANT:
PARTIES, RESPONDENT:
COUNSEL APPEARING, APPLICANT
COUNSEL APPEARING, RESPONDENT
SOLICITORS FOR APPLICANT
SOLICITORS FOR RESPONDENT
TRIBUNAL MEMBERS:
DATES OF HEARING:
PLACE OF HEARING:

PART B

RECOMMENDATION:

FULL REPORT ( ) CASE NOTE ( ) UNREPORTED DECISION ( )

COMMENTS: