Medical Practice Act 1992 re Dr Badal CHATTERJEE
[2005] NSWMT 18
•13 May 2005
New South Wales
Medical Tribunal
CITATION: Medical Practice Act 1992 re Dr Badal CHATTERJEE [2005] NSWMT 18 TRIBUNAL: Medical Tribunal PARTIES: Health Care Complaints Commission
and
Dr Badal CHATTERJEEFILE NUMBER(S): 40019 of 2004 CORAM: Sidis, DCJ - Glover, Prof W - Sutton, Dr V - Napier, Ms L CATCHWORDS: Sexual misconduct LEGISLATION CITED: Medical Practice Act 1992 (NSW) - ss 36 - 37 CASES CITED: Richter v Walton NSWCA U/R 15.7.93;
HCCC v Litchfield (1997) 41 NSWLR 630;
Bannister v Walton (1993) 30 NSWLR 699;
Briginshaw v Briginshaw (1938) 60 CLR 336DATES OF HEARING: 20 21 22 April 2005 DATE OF JUDGMENT: 13 May 2005 LEGAL REPRESENTATIVES: Counsel K L Eastman
Solicitor Health Care Complaints Commission
Counsel P Byrne SC - E H Pike
Solicitor - United Medical ProtectionORDERS: 1 The Tribunal finds the Complaint proved; 2 The Tribunal finds the practitioner guilty of professional misconduct; 3 The practitioner is severely reprimanded; 4 The practitioner is fined the sum of $13,750.00; 5 The practitioner is to pay the Commission’s costs of the proceedings before the Tribunal; 6 The Tribunal publishes its reasons
JUDGMENT:
JUDGMENT
DETERMINATION
Pursuant to Clause 6 of Schedule 2 to the Medical Practice Act 1992 the Tribunal has made a Non Publication Order in respect of Patient A, her husband and any other witness, the naming of whom might lead to the identification of Patient A.
NATURE OF COMPLAINT
1 Pursuant to the Medical Practice Act 1992 (the Act), the Tribunal is enquiring into a Complaint[1] of the Commissioner, Health Care Complaints Commission (the Commission), concerning the professional conduct of Dr Badal Chatterjee.
2 The Commission complained that the practitioner, being a medical practitioner registered under the Act, has been guilty of professional misconduct or unsatisfactory professional conduct within the meaning of ss 36 and 37 of the Act in that he demonstrated a lack of adequate knowledge, skill, judgment or care in the practice of medicine.
3 Particulars set out in the Complaint were as follows:
1. On 9 June 2000 during a professional consultation with a female patient, Patient A, at his surgery the practitioner:
(a) offered and gave Patient A a massage without clinical justification;
(b) embraced or cuddled Patient A;
(c) touched Patient A's breast beneath her clothing;
(d) touched Patient A's buttocks beneath her clothing.
Unsatisfactory Professional Conduct
4 The Complaint falls to be determined under Section 36 (1) (a) of the Act which, at the time of the conduct complained of, provided:
Meaning of 'unsatisfactory professional conduct '
(1) For the purposes of this Act, unsatisfactory professional conduct of a registered medical practitioner includes each of the following:
(a) Lack of skill etc
Any conduct that demonstrates a lack of adequate knowledge, skill, judgment or care, by the practitioner in the practice of medicine.
...
(m) Other improper or unethical conduct
Any other improper or unethical conduct relating to the practice or purported practice of medicine.
Professional Misconduct
5 Section 37 of the Act defines professional misconduct as:
"....unsatisfactory conduct of a sufficiently serious nature to justify suspension of the practitioner from practising medicine or the removal of the practitioner's name from the Register."
6 The obligations of medical practitioners are encapsulated by Priestley JA in his minority judgment in Richter v Walton[2] in the following terms:
"The degree of trust which patients necessarily give to their doctors may vary according to the condition which takes the patient to the doctor. Even in regard to the most commonplace medical matters, the trust a patient places in a doctor is considerable. In some cases, of which the present seems to be an example, the patient's trust cannot help but be almost absolute. The doctor's power in regard to the patient in such cases is also very great. I do not mean power in the abstract way but as a matter of fact; the extent of the power will vary according to the temperament of the patient, but the doctor with some patients and for limited periods, because of the relationship in which they are temporarily placed, is in a position to do whatever the doctor wants with the body of the patient. This is one of the reasons why doctors are subject to correspondingly great obligations and are expected to maintain high standards; all this being very much in the public interest."
7 The majority decision in Richter v Walton was over-ruled in Health Care Complaints Commission v. Litchfield[3] where it was stated that the dissenting judgment of Priestley JA was entirely correct.
Onus and Standard of Proof
8 After reference to Rejfek v McElroy [4] the Court of Appeal accepted in Bannister v Walton [5] that the standard of proof requires that the Tribunal be 'comfortably satisfied on the balance of probabilities' . The Commission bears the onus of satisfying the Tribunal that the Complaint has been proved to this standard.
9 The Tribunal must have regard to the gravity and importance of the matters which it is deciding in accordance with the principles stated in Briginshaw v Briginshaw[ 6]. At pages 361 and 362 Sir Owen Dixon stated:
"Except upon criminal issues to be proved by the Prosecution it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the Tribunal. But reasonable satisfaction is not a state of mind that is obtained or established independently of the nature or consequence 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 are 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 proved by inexact proofs, indefinite testimony, or indirect inferences."
Practitioner's Background
10 The practitioner is 68 years old. He received his medical training in Rangoon, Burma and studied further in the UK to secure fellowship of the Royal College of Surgeons.
11 After practising as a surgeon in Burma he moved to Singapore in 1974 and to Australia in 1976.
12 On arrival in Australia he worked at the Concord Repatriation Hospital before commencing practice as a general practitioner in Campbelltown in 1978. He has remained in practice in this area to the current date. From 1978 until 1995 he undertook minor surgical work as VMO at Campbelltown Private Hospital.
13 The practitioner is a member of the RACGP.
14 No other complaints have been brought against him.
The Consultation on 9 June 2000
Patient A's evidence
15 Patient A was first taken by her parents to consult with the practitioner at the age of four or five years. The practitioner's records date from 1981. For a period of about 2 years from mid 1997 she obtained medical treatment elsewhere.
16 In August 1999, after the birth of her son in June 1999, she returned to the practitioner's care. Patient A stated that at that time she was suffering from post natal depression, anxiety and panic attacks.
17 On 7 June 2000 she consulted the practitioner for depression, anxiety and panic attacks. He gave her samples of Endep 10 medication which he suggested that she trial and return to see him in two days.
18 On 9 June 2000 she attended at the practitioner's surgery at between 6 and 6.30 pm. Patient A prepared a diagram which she said represented the layout of the practitioner's waiting room, consulting room, the car port which he used to park his white Volvo and the nearby public car park.
19 Patient A said that she parked her car in the car park and walked to the surgery premises. On arrival the practitioner was sitting at the reception desk. His receptionist, identified as Joy Bailey, was not present and there were no other patients there. After greeting patient A, processing her Medicare card and retrieving her file from the nearby filing cabinet, the practitioner complimented patient A on her hair stating:
Your hair looks nice, you should wear it out more often.[7]
20 Patient A said that in response she put her hair up.
21 They went to his consulting room where he sat behind his desk and patient A sat in the patient's chair situated to one side of the desk. Asked how she was feeling, patient A said she told the practitioner that she was feeling and sleeping better, that things had improved at home and that she was less stressed. The practitioner took her blood pressure and started to write her a prescription for more Endep 10. She told him that there was no purpose in providing a prescription because she could not afford to purchase medication. The practitioner gave her more samples of Endep 10 which he obtained from a cupboard in his consulting room.
22 Patient A said that she took her belongings and prepared to leave when the practitioner offered her a massage, stating that she appeared to be very tense. She declined, stating that when she could afford to she would obtain a massage from a professional masseur. At this stage, she said, she was standing and the practitioner was still seated at his desk.
23 Patient A said the practitioner urged her to allow him to massage her and she agreed to allow him to massage her neck, shoulders and back. The practitioner approached her from the front and put his arms up and over her shoulders from a point about 10 cm in front of her. In this manner the practitioner massaged patient A's shoulders and mid back.
24 Patient A said they were standing very close together. After one or two minutes, she told the practitioner that she was not comfortable and would like to sit down. She said she did not want to offend the practitioner, so she made the excuse that she had been standing on her feet all day at work. He suggested that they go to the waiting room.
25 When they reached the waiting room, the practitioner closed the Venetian blinds at the windows of the room, stating that, if other patients saw him massage patient A, they might also ask for massage. Patient A said she placed her belongings on the reception desk and stood between the desk and a lounge. She described the lounge as having 3 seats and covered in orange velvet with silver armrests.
26 The practitioner sat in the centre of the lounge and told her to come and sit on his lap. She told him that she normally sat on the floor when having a massage and walked towards him preparing to sit on the floor. At this point, she said, the practitioner placed his hands on her hips and pulled her on to the lounge so that she was seated between his legs. She said they were seated so that her back was about 10 cm from the practitioner's chest. She felt very uncomfortable.
27 Tested as to why she did not decline or resist the massage which the practitioner proposed at this point, patient A said that at this time she was depressed and vulnerable. She feared that a confrontation might result if she resisted and she did not feel strong enough for conflict.
28 The practitioner started to massage the top of her neck and shoulders and then proceeded to her mid and lower back. As he did this, his left hand came around the left side of her body a few times and brushed against her left breast on the outside of her clothing. At this stage she thought that this contact could have been accidental. He then placed his left hand under her loosely fitting T-shirt and under her bra and fondled her breast. At the same time he placed his right hand into the back of her cotton trousers, which had a loose elastic band, and stroked her right buttock.
29 Patient A said she immediately told the practitioner that she did not appreciate his touching her and that it was not appropriate. He said nothing in response. She stood, told the practitioner that she would have to go because she needed to read her daughter a bed time story and took her belongings from the reception desk. The practitioner also stood. She saw one of her hairs on the sleeve of her T-shirt and brushed it off. He told her to make sure that none of his hairs were on the T-shirt. Patient A said that, having collected her belongings, she turned to leave brushing the area of the practitioner's groin with the back of her hand as she did so, noticing that his penis was erect.
30 Patient A said that the door of the surgery was locked when she went to leave and the practitioner opened it for her. She went to her car, where she said she cried and was shaking. She rang a girl friend as she drove away. She said she did not wish to go directly home, fearing that if she informed her husband what had happened, he would take matters into his own hands. She therefore drove directly to her friend's home at Bradbury.
31 She gave her friend a brief account of what happened and spoke to another friend who was a police officer. On his advice she rang Campbelltown Police Station to report the incident. On the following Monday, 13 June 2000, she attended at the Police Station to provide a statement.
32 Patient A said she left her friend's home shortly after 8 pm and went to her home where she told her husband what had occurred.
The practitioner's evidence
33 The practitioner said he recollected clearly the consultation with patient A on 9 June 2000. He agreed that he had been seated at the reception desk when patient A entered and that he had processed her Medicare card before they proceeded to the consulting room. He denied that he had offered to massage her, had massaged her, embraced or cuddled her, touched one of her breasts or buttocks beneath her clothing or touched her inappropriately in any way at all. He denied that they had returned to the waiting room, that he had closed the blinds to the windows in that room or locked the front door to the surgery.
34 The practitioner stated that he had responded truthfully to the questions put in the course of the electronic interview with Detective Hendry concerning the consultation on 9 June 2000.
35 The practitioner did not agree with the diagram[8] prepared by patient A of the layout of his surgery and the nearby parking arrangements. He prepared his own diagram[9]. The differences between the practitioner and patient A did not appear to be of significance in determining the issues in the Complaint.
Credit
36 The only witnesses to what occurred on 9 June 2000 were the practitioner and patient A and there was thus available to the Tribunal no corroborative material to support the evidence of either of them. For this reason it was necessary to consider other events and circumstances to determine whether it would be possible to determine as between patient A and the practitioner who told the truth.
18 September 2000
37 Patient A said she returned to the practitioner's surgery at about 4 pm on 18 September 2000. She returned when she had been informed by the police officer in charge of her complaint, Detective Hendry, that the practitioner had denied her allegations. She said she wanted to confront the practitioner and ask him why. On this occasion Ms Bailey was sitting at the reception desk and 6 or 7 patients were in the waiting room. She said the practitioner saw her as he escorted a patient from the premises and, appearing to be surprised to see her, told her to go away and leave him alone. She asked three times to speak to him privately in the presence of Ms Bailey. His initial response was to tell her to go away and leave him alone. On the third occasion, he said: I hope you burn in hell .[10]
38 She responded that, since he had declined to speak with her in private, it was necessary to ask him in the presence of his patients why he had denied the allegations she made. He again told her to go away and asked Ms Bailey to telephone the police to ask them to have her removed. Patient A said she supplied Ms Bailey with the telephone number for Campbelltown Police Station and tried to reassure her that a call was not necessary. However, Ms Bailey proceeded to telephone the police, whereupon patient A left the premises.
39 Patient A denied that she had behaved in a manner that was assertive, abusive or aggressive. She denied that this was the reason the practitioner directed his receptionist to telephone the police.
40 The practitioner stated that on 18 September 2000 he was in his consulting room and heard loud noises coming from the waiting room. He went to the consulting room and saw patient A standing beside the reception desk, screaming at the top of her voice and with her whole body shaking. He instructed Ms Bailey to call the police whereupon patient A ran away. The police arrived 10 or 15 minutes later and recorded the incident. He provided the police with a document containing the names, addresses and telephone numbers of the 6 or 7 patients who were in the waiting room. They inquired of him why patient A had been so hysterical. The list of patients had never at any stage been provided to the Commission.
Consistency of patient A's evidence
41 Prior to giving her evidence, patient A had made three written statements concerning the events of 9 June 2000. The first[11] was provided to the police on 13 June 2000, the second[12] she prepared herself in September 2000 for the purposes of a complaint to the Medical Tribunal, and the third[13] was in the form of a statutory declaration prepared with the assistance of the Commission in March 2001. The last of these documents was corrected by patient A at the commencement of her evidence by amendment to paragraphs 14 and 19. She stated that she had read all of these statements on the day before giving her evidence to the Tribunal.
42 In addition, she had given evidence[14] before the Local Court at Campbelltown on 4 April 2002 concerning the alleged incident.
43 There were some discrepancies in the plaintiff's statements which were highlighted in cross examination:
(1) In her statement to police patient A stated that she sat between the practitioner's legs on the lounge in the waiting room. In her letter to the Medical Tribunal and her statutory declaration she stated that she sat beside the practitioner. The police statement, she said, had been detailed. The statement she had prepared for the Medical Tribunal and the statutory declaration had been prepared with less attention to detail. Patient A corrected her statutory declaration in this respect at the commencement of her evidence.
(2) In her statutory declaration patient A stated that the practitioner had locked the door as he walked from the waiting room to his consulting room. She agreed that she had not seen the practitioner lock the door to the surgery and that this part of her statutory declaration had been based on an assumption.
(3) As to paragraph 18 of the statutory declaration, patient A said that she now had no recollection of having pushed the practitioner's hands away and stating that she would rather sit on the lounge chair.
(4) Patient A's evidence to the Tribunal concerning the point at which she had had accidentally brushed against the practitioner's groin area differed from that given in the Local Court[15]. On that occasion she stated that it occurred after they stood up from the couch when:
He had his hands around me and he pulled me back for one last time, and at this point my hand brushed over his groin area.
Patient A stated that the evidence given in the Local Court was correct and that she had forgotten this part of the incident in her evidence in chief to the Tribunal.
This part of the incident was not mentioned in patient A's letter to Medical Tribunal. She stated that this document had not been intended to be a detailed account of the incident.
It was also not referred to in patient A's statutory declaration.
(5) Contrary to the evidence of her former husband, patient A did not recall whether she had gone to her home to get cigarettes before driving to her girl friend's home.
(6) Patient A was challenged concerning the time at which she telephoned Campbelltown Police Station. Before the Local Court she stated[16] that she made the call a couple of hours after the incident. It was put to patient A that the call could have been placed at 10.28 pm. This proposition was said to have been based on a police record indicating that the incident had been reported at 10.28 pm. The COPS report[17], however, noted that the date and time of the report was 09/06/200 20:15.
(7) Patient A was questioned concerning the location from which she made the telephone call reporting the incident. Having regard to the information contained in the COPS report it appeared probable that her evidence that she made the call from her friend's home was accurate.
44 Patient A's former husband, adhered to a statement[18] made on 10 November 2003. He stated that plaintiff returned home from her consultation with the practitioner on 9 June 2000 upset and unable to talk to him. She had taken her cigarettes and told him that she was going to visit her girl friend. She came home between 10 and 11 pm and told him what had happened, stating that she had wanted to calm down. This was because she was concerned that he might take matters into his own hands. He did not remember what patient A told him about the incident itself.
Plausibility of events as described by patient A
45 Patient A agreed that the practitioner had never before touched her inappropriately, that he had always previously dealt with her kindly and professionally and that she had no other complaint concerning his treatment of her.
46 Patient A was tested concerning her disposition towards the practitioner at this time. In February 2000 the practitioner had referred her to the mental health services operating at Waratah House at Campbelltown District Hospital. She referred to the experience as debilitating or degrading. She denied, however, that she felt resentment towards the practitioner because of this.
47 Patient A was referred to that part of her evidence in the Local Court where she stated[19]: there's nothing I can really get you on here . She said that she had intended to convey that at that point he had done nothing that was serious, stating: I wasn't hanging around for him to do something so I could spend five years of my life. It was just a personal, like, thought for me, not in the legal sense. [20]
48 The practitioner's reference to the appearance of her hair, she described as bizarre or weird [21] in the sense that it was the first time in 20 years that the practitioner had said anything of this kind. She denied that her reaction in putting her hair up had been prompted by discomfort, defiance or was an indication that she was asserting some form of independence, rather that until this point of time she had forgotten that she had not put it up. She denied that she had linked the remark concerning her hair with the practitioner's offer of a massage in deciding that this, too, was weird.
49 Patient A was asked if she had not been concerned by an accumulation of circumstances including the reference to her hair, the offer of massage, the practitioner's heavy breathing, closing the blinds and the embracing and physical touching that had never occurred before. She agreed that she had been uncomfortable with the situation but stated that she had continued to trust the practitioner at a time when she was depressed and could not deal with confrontation. She was also concerned that her former husband, who had recently acted with violence, might react to what had occurred.
50 She said that her trust of the practitioner had developed over a period of 20 years and she had given him the benefit of the doubt until the point where he touched her inside her clothing.
51 Patient A denied that she had at any time suffered from hallucinations.
52 Patient A denied that she was assertive at the time of the alleged incident. She said she had been depressed and vulnerable.
Plausibility of the practitioner's evidence
53 The practitioner agreed he had treated patient A for approximately 19 years. The practitioner confirmed that the contents of his statement[22] were true and correct. The statement set out his background and noted that no other complaints had been made concerning his practice of medicine. It set out his version of the events occurring at the consultation of 9 June 2000 and of the incident occurring on 18 September 2000.
54 The practitioner, in his responses to the Commission and in his evidence to the Tribunal, raised a number of issues concerning patient A, which were directed at her medical condition and character. They related to her psychiatric condition, a complaint that she had been molested by a doctor practising at Ambarvale, that she, a married woman, had engaged in an intimate relationship with a professional masseur or with persons other than her husband and that she had informed him that, if he wished to cure her, he would have to go to live with her.
Patient A's mental health
55 The practitioner identified patient A as the person referred to as Speaker[23] in the transcript of the decision of the magistrate on 4 April 2002 dismissing the charges against him in the course of which she said:
- You obviously weren't thinking about your daughters, your granddaughters, your aunties or anything. Have you thought about that? Fucking bullshit.
56 The practitioner's medical records were maintained on a card system. The practitioner acknowledged that the notes kept on the cards forming the record were brief and did not adequately reflect patient A's condition, physical or mental.
57 He stated, however, that patient A had been suffering from mental illness in the nature of depression and anxiety for an extended period both before 1997 and after 1999. He said the post-natal depression that occurred after the birth of her son in June 1999 aggravated her condition. He stated that all consultations with patient A took longer than with the average patient, that she demonstrated features of anger, frustration, agitation, confusion and of being highly strung or highly disturbed. He said that at every consultation she was shaking and upset. Tearful, angry, frustrated, all along .[24]
58 He agreed that patient A had not been critical of him and that her anger had never been directed towards him.
59 It is clear from the practitioner's records that he did treat patient A from September 1999 for symptoms of depression, prescribing variously in September and October 1999 Aurorix, Aropax and herbal medicine. There was no further reference to a depressive condition or to treatment for any such condition until February 2000 when patient A was referred both to Dr Haig and to Waratah House.
60 The practitioner's notes and his referral to Dr Haig recorded symptoms of panic attacks, hallucinations, nightmares and to patient A's being highly disturbed mentally .
61 The practitioner confirmed that he referred patient A to Dr Haig, psychiatrist, in February 2000. His letter of referral[25] stated her symptoms to be diminished memory, panic attacks, anxiety, horrible dreams, bad thoughts and hallucinations. These symptoms, he said, were noted by him in the course of his treatment of patient A. They had been ongoing, he said, for many years.
62 On 22 February 2000, before receipt of Dr Haig's report, the practitioner considered that patient A's condition was sufficiently severe to warrant her admission to Waratah House. The psychiatric registrar at that establishment apparently took a different view and did not admit her.
63 Dr Haig's opinion dated 23 February 2000[26] concerning patient A's condition at that time was that patient A was suffering from a major depressive episode with panic attacks which followed an incident of violence allegedly directed by her husband towards herself and her son. Dr Haig described patient A as a pleasant woman, alert, orientated, weepy, distressed and dysphoric in mood . He noted that she was not suicidal and looked forward to the future.
64 It appeared that no report was provided to the practitioner concerning patient A's treatment at Waratah House.
65 Patient A next consulted the practitioner on 3 March 2000. His notes recorded that she had been referred to mental health Brown Street, Campbelltown . On 6 March 2000 no symptoms of mental illness were recorded but there was reference to medication in the form of vitamin B6 and St John's Wort. On 10 March 2000 a Cipramil sample was given to patient A. Notes of consultations in April and May 2000 made no reference to mental illness or medication for any such condition.
66 On 7 June 2000 a depressive illness was recorded with dizziness and financial problems. Two Endep tablets were given to patient A, apparently from samples kept in the practitioner's cupboard.
67 The record of the consultation on 9 June 2000 read:
BP 130/90, slept better. Endep prescription given. 75 mg Prothiaden 2 tablets given 1/4 one or twice a day. Hair science shampoo two packs given.
68 Aside from these records, the practitioner's notes from 1981 to June 2000 contained no record of any symptoms or treatment of psychiatric disorders or mental illness.
69 The practitioner's explanation for the absence of notes of what he stated were ongoing symptoms over a period of years of a condition which rendered patient A mentally unsound and psychopathic[27] was that he could not at all times record all of her symptoms.
70 It has already been noted that Dr Haig had diagnosed an episode only of major depression.
71 On 23 June 2000 patient A consulted Dr O'Sullivan, psychiatrist, in relation to depression. She informed him of the incident concerning the practitioner. Dr O'Sullivan provided a statement to police[28] expressing the opinion that at the time of this initial interval patient A had not been psychotic and that he did not believe her accusations would have been psychotic in origin.
The Ambarvale doctor
72 There were three entries in the practitioner's notes stating that patient A had been molested by an Ambarvale doctor. It was apparent from the condition of the cards that the entries were added to the notes at some stage after consultations on 3 March 2000, 27 March 2000 and 30 May 2000. The practitioner could not recall when these entries had been made but agreed that he did, at times, add entries after the close of consultations when his memory might have been prompted to record something of significance that he had overlooked.
73 Although he had recorded the incident on three occasions, the practitioner had not asked patient A for any details about her allegation that she had been molested. He had not considered that he needed to inquire for the purpose of ascertaining if she required treatment for any physical injury. He had not considered that it was necessary to advise patient A of her right to make a complaint concerning her treatment by the Ambarvale doctor or that he, himself, should make inquiry of the circumstances in which patient A had been molested for the purpose of reporting misconduct on the part of a fellow practitioner. What had happened between patient A and the Ambarvale doctor, he said, was a personal matter between them. This was notwithstanding that the matter had apparently been raised with him on three occasions.
74 Having regard to the practitioner's explanation for not recording significant symptoms concerning patient A's psychiatric condition, namely that it was not necessary to record them repeatedly, the recording of this incident on three separate occasions would suggest that it assumed considerable significance in respect to patient A's condition.
75 The practitioner denied that he had fabricated this incident because he thought it might assist in his response to the Complaint. Patient A was not questioned on this topic.
Extra-marital relationships
76 The practitioner stated in his responses[29] to the Commission that he had received telephone calls from patient A's husband asking if he knew of her whereabouts. It was claimed that in these telephone conversations patient A's husband stated that she was dining with a male person and that when there were domestic arguments, she went out to lunch or dinner with a male person. In cross examination, he stated that he had received only one such telephone call.
77 Patient A was not questioned on this topic. Patient A's former husband was not questioned on this topic.
78 The practitioner stated that patient A had mentioned many times:
... her intimate relationship with the male masseur of Campbelltown. ...I feel that this can have a bearing on the case. I would like this to be added to the file. [30]
79 Patient A was not questioned on this topic.
Living with Patient A
80 The practitioner's stated that patient A told him two or three times that, if he wished to cure her, he would have to go to live with her. Patient A was not questioned on this topic.
Doctor Shopping
81 Attached to the practitioner's cards containing his clinical notes concerning patient A, was a post it note which referred to an inquiry made of the service set up to allow practitioners to inquire whether a patient was doctor shopping. The practitioner confirmed that the handwriting on the note was his own. His evidence was that he had asked his receptionist to make inquiry of the doctor shopping line because of the various medications going on and on [31]. The inquiry was made, he said, towards the latter end of the consultations. He also stated that the note was dated February 2000[32]. He subsequently stated that it was dated 15 February 2001[33]. His inquiry he said was to find out about hard drugs in relation to patient A. He said this was because of her mental disorder, stating:
- I mean her behaviour, her agitation, her confusion. All these things - how much of it is related to the hard drugs, or not. [34]
PEER REVIEW
82 The report[35] of the peer reviewer was dated 17 October 2001. It expressed the opinion, based upon the assumption that the events described by patient A in fact occurred, that:
If [the practitioner] did offer to massage [patient A's] neck and back,...I would be moderately critical, and being inappropriate treatment, particularly with a vulnerable patient in significant psychological distress. If the physical contact extended to touching [patient A's] breast and buttock then this constitutes conduct that attracts my severe criticism.
83 The practitioner agreed with this conclusion.
FINDINGS
84 At the time of the alleged incident patient A was 23 years old. She was suffering from depression, anxiety and panic attacks. At the time she gave her evidence to the Tribunal she was 28 years old, she had recovered from her illness and presented as self assured and confident.
85 Her evidence was given in a clear and straightforward manner. She readily conceded, when inconsistencies were raised, that she had forgotten some of what had occurred or that she could have been mistaken in her prior statements or in her evidence to the Tribunal.
86 There was plausibility in her evidence that, because the practitioner had always previously treated her with kindness and professionalism, she trusted him, notwithstanding indicators which suggested that his conduct on 9 June 2000 was unusual.
87 In these circumstances, the Tribunal finds that the inconsistencies in her evidence are not such that it should not accept her evidence.
88 In response to the Complaint, the practitioner attempted to establish that patient A was either mentally unsound or a person of such character that she should not be believed.
89 The evidence relating to patient A's mental health did not support the practitioner's claim that she was mentally unsound in June 2000.
90 The entries in the practitioner's card records in relation to these alleged claims strongly suggested that he had inserted them in order to bolster his defence of the Complaint.
91 The evidence that patient A claimed on three occasions to have been molested by another doctor and that the practitioner did nothing to inquire into the circumstances of this incident, examine patient A or advise her, was not credible.
92 The practitioner's evidence concerning extra-marital relationships and the suggestions that patient A invited him to live with her was similarly not credible.
93 The rejection of these parts of the practitioner's evidence does not definitively point to a conclusion that the practitioner's evidence concerning the evening of 9 June 2000 should be rejected. However, taken in conjunction with the generally unsatisfactory nature of the manner in which the practitioner gave his evidence, the Tribunal has concluded that he was not a witness of credit.
94 The Tribunal finds that the practitioner's evidence concerning the events of 9 June 2000 is not to be accepted.
95 The Tribunal is satisfied to the requisite level of comfort that the practitioner conducted himself with patient A in the manner described in the Complaint.
96 The Tribunal finds the Complaint proved.
97 Having regard to the nature of the conduct involved, the vulnerable condition of patient A at the time of the incident and the severe criticism of the peer reviewer, the Tribunal finds the practitioner guilty of professional misconduct.
APPROPRIATE ORDERS
98 The Tribunal is charged with exercising powers to sanction members of the medical profession for the purpose of protecting the community. The principal consideration in the exercise of these powers is the maintenance of the standards of the medical profession and maintaining the confidence of the public in the profession. The public is entitled to the assurance that measures will be taken to address breaches of acceptable standards of practice.
99 There was before the Tribunal little or no evidence of insight on the part of the practitioner into the shortcomings in his conduct. There were no admissions, expressions of contrition or indications of willingness to accept all of the responsibilities of medical practice.
100 This absence of insight was compounded by the fact that the practitioner chose to conduct himself unacceptably with patient A, who at the time was a young woman, vulnerable by reason of her psychological condition, who trusted and relied upon him.
101 The Tribunal regarded as particularly reprehensible the manner in which the practitioner dealt with patient A in his response to the Complaint.
102 In contrast to these highly reprehensible aspects of the practitioner's conduct, he has had a long and, until this incident, unblemished career as a general practitioner. There was no evidence before the Tribunal of any complaint concerning the practitioner's professional conduct either before or since 9 June 2000.
103 A small number of references was provided. The references attested to the practitioner's good standing in the community, his professional competence and the regard in which he is held by some of his patients.
104 Having taken these matters into account the Tribunal has determined that the appropriate orders are:
(1) The practitioner is severely reprimanded.
(2) The practitioner is fined the sum of $13,750.00.
(sgd) Margaret Sidis
Deputy Chairperson Judge M Sidis
13.5.05
(sgd) W. E. Glover
Professor W Glover AO
(sgd) V Sutton
Dr V Sutton
(sgd) Ms Lindsey Napier
Ms L Napier
1 Exhibit A
2 NSW Court of Appeal, unreported, 15.7.93
3 41 NSWLR 630 @ 639
4 (1965) 112 CLR 517
5 (1993) 30 NSWLR 699
6 (1938) 60 CLR 336
7 Transcript 17.33
8 Exhibit E
9 Exhibit J
10 Transcript 40.43
11 Exhibit D, Tab 7
12 Exhibit D, Tab 3
13 Exhibit D, Tab 4
14 Transcript, Exhibit D, Tab 12
15 Exhibit D, Transcript 13.27
16 Exhibit D, Transcript 15.29
17 Exhibit F
18 Exhibit D, Tab 5
19 Exhibit D, Transcript 34.25
20 Transcript 81.10
21 Transcript 46.35
22 Exhibit 2, Tab 1
23 Exhibit D, Tab 13, line 55
24 Transcript 164.37
25 Exhibit 1
26 Exhibit D, Tab 19
27 Transcript 107.58 - 108.2, 117.23
28 Exhibit D, tab 11
29 Exhibit D, Tab 16 and 21
30 Exhibit D, Tab 21
31 Transcript 152.30
32 Transcript 181.45
33 Transcript 183.4
34 Transcript 183.35
35 Exhibit D, Tab 28
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