Parajuli v Medical Council of New South Wales
[2011] NSWMT 4
•31 May 2011
Medical Tribunal
New South Wales
Case Title: Parajuli v Medical Council of New South Wales Medium Neutral Citation: [2011] NSWMT 4 Hearing Date(s): 16 May 2011 Decision Date: 31 May 2011 Jurisdiction: Before: Staff J; Dr V De Carvalho; Dr M Walker; Ms D Robinson
Decision: 1. Pursuant to s 163B(1)(c) of the Health Practitioner Regulation National Law (NSW), the Tribunal makes a reinstatement order.
2. Pursuant to s 163B(4) of the Health Practitioner Regulation National Law (NSW), the Tribunal imposes conditions on Mr Parajuli's registration, the subject of the reinstatement order. The conditions are set out in Annexure A.
3. The applicant is to pay the respondent's costs of the proceedings, on the ordinary basis, as defined in Schedule 3 of the Civil Procedure Act 2005.Catchwords: APPLICATION - reinstatement order - following deregistration for professional misconduct in 2010 - finding applicant now of good character and fit and proper person - Tribunal satisfied no relevant risk of recurrence of professional misconduct - finding that significant change has occurred in applicant's character - finding applicant has overcome flaws of character and temperament that led him to commit the misconduct - finding applicant has intellectual insight into conduct which led to deregistration - application for reinstatement order granted with conditions - COSTS
Legislation Cited: Civil Procedure Act 2005
Health Practitioner Regulation National Law (NSW)
Medical Practice Act 1992Cases Cited: In re Mr Andrzej Kazmierczak (6 May 2010, unreported)
In the Matter of Mansour Hassad Zaidi and The Medical Practice Act 1992 as amended (29 August 1996, unreported)
Re Dr Parajuli [2010] NSWMT 3
Re Mansoor Haider Zaidi [2006] NSWMT 6
Zaidi v HCCC [1998] NSWSC 335; (1998) 44 NSWLR 82Texts Cited: Category: Principal judgment Parties: Naresh Sharma Parajuli (Applicant)
Medical Council of New South Wales (Respondent)Representation - Counsel: Counsel
Mr P Griffin of counsel (Applicant)
Ms D Ward of counsel (Respondent)- Solicitors: Solicitors
Hicksons Lawyers (Applicant)
Crown Solicitor's Office (Respondent)File number(s): 40007 of 2011 Publication Restriction: Pursuant to Cl 7 Sch D of the Health Practitioner Regulation National Law (NSW) the Tribunal has ordered that there be no publication of the name of Patient A or of any material capable of identifying Patient A.
Judgment
The Tribunal, at the conclusion of the hearing on 16 May 2011, made a reinstatement order with conditions. We now provide our reasons.
Mr Naresh Sharma Parajuli ("the applicant"), pursuant to s 163 of the Health Practitioner Regulation National Law (NSW) ( "NSW Law ") made application that this Tribunal review an order it made on 13 April 2010 that he be removed from the Register of Medical Practitioners and that there be no application for review of this order for a period of six months: Re Dr Parajuli [2010] NSWMT 3.
Mr P Griffin of counsel appeared for the applicant.
Ms D Ward of counsel appeared for the Medical Council of New South Wales ("the respondent"), formerly the New South Wales Medical Board. The NSW Law established the Medical Council and provided it with certain functions: see s 41B, s 41D and Pt 8. Registration of health practitioners is now a matter for the Medical Board of Australia, although the Australian Health Practitioner Regulation Agency ("AHPRA") is responsible for administering procedures relating to registration (s 25(e) and s 35(1)(a), s 35(1)(b) of the NSW Law ).
The Medical Board of Australia is required to give effect to a decision of this Tribunal (s 176A of the NSW Law ).
The respondent neither opposed nor consented to the application. However, Ms Ward submitted that if the Tribunal allowed the application, it should do so with conditions. This Tribunal has reached the unanimous decision that the application should be granted upon conditions, which we will set out in these reasons.
The Tribunal is to determine as at 16 May 2011, the date of hearing, the appropriateness of the order under review (s 163C(1) of the NSW Law ). In addition, the Tribunal is required to take into account any complaint made or notified about the applicant (s 163C(3) of the NSW Law ). Although there was one additional complaint, there was no disciplinary action taken in relation to that complaint. The subject of the complaint was unrelated to the conduct which led to the orders of the Tribunal in 2010. It was common ground that the subsequent complaint should not be given any weight in the determination of the present review application.
The 2010 Tribunal decision
We set out the history of the matter, which is taken from the 2010 decision.
The applicant admitted that:
(1) Between about 9 May 2007 and 22 June 2007, while patient A was a patient of the practitioner, he engaged in inappropriate discussion with her.
(2) On 24 May 2007, he made arrangements to meet the patient at her home for the purpose of having sexual contact with her.
(3) On 25 May 2007, he visited the patient at her home and engaged in sexual intercourse with her.
He acknowledged that this conduct amounted to professional misconduct.
The applicant undertook medical training in India and then worked for nine years as a general medical officer and district medical officer in Bhutan. In 2001 he migrated to Australia on a student scholarship. In 2006 he became a Fellow of the Royal Australian College of General Practitioners ("RACGP"). He worked for two years for the National Prescribing Service, and for one year as the Manager, Clinical Quality for a hospital. In late 2004 he commenced working for a group general practice in a city in regional New South Wales.
After four consultations with Patient A, the applicant made a computer entry instructing administrative staff that they should not make appointments for Patient A to see him. He did so for three reasons. First, Patient A was unreliable in keeping appointments. Second, he knew that she used illicit drugs and had "family law matters" (issues concerning her children) and he considered those factors "would complicate (his) management of her treatment". Third, she had "sexual issues" and had made sexual references that caused the applicant to feel uncomfortable. Patient A was not advised that the applicant no longer wished to see her.
Despite the computer instruction, on 9 May 2007 "at the last minute" the applicant learned that Patient A had an appointment to see him. He accepted the appointment. Patient A complained of neck pain. When the applicant examined her neck, Patient A made sexually suggestive comments. There was a discussion about sex toys. Patient A advised the applicant that she had sexual problems and "might be a nymphomaniac". The applicant suggested that she make another appointment to discuss the problem. The applicant felt sexual interest in Patient A but he also felt uncomfortable and wanted to reflect on his position. At the end of the consultation, Patient A gave her mobile telephone number to the applicant. She told him that he should contact her if he was "interested". The applicant's notes of the consultation were very brief. They make no reference to any sexual problem or overture.
On 23 May 2007, Patient A attended a second appointment with the applicant. She complained of pain caused by sexual activity. The applicant suggested an external examination, he offered a female chaperone, but Patient A declined the offer. She made a sexual suggestion and commented that the applicant had not yet telephoned her. Patient A repeated that she was a "nymphomaniac". Over a period of five or six minutes, Patient A and the applicant discussed Patient A's sexual preferences. At one stage, the applicant jokingly remarked "Maybe I will find some sexual partners for you on the Internet". At Patient A's request, the applicant provided Patient A with a medical certificate stating that she was unfit for work from 18 May 2007 to 23 May 2007, although there was no medical reason for providing a certificate beyond the period 22 - 23 May 2007. The applicant did so because he had a sexual interest in Patient A and wanted to please her. As Patient A was leaving, she hugged the applicant and he responded with a hug. The applicant's notes of the consultation were very brief. They did not refer to the discussion concerning "nymphomania" or to any sexual overture.
On the evening of 24 May 2007, the applicant rang Patient A's mobile telephone number. They arranged that he would attend her home the following day at about 6.00pm, which he did with a bottle of wine. Sexual intercourse occurred.
Patient A again had a consultation with the applicant on 21 June 2007. Between that date and July 2007, the applicant rang Patient A's mobile telephone on seven or eight occasions hoping to arrange further sexual contact. His attempts were unsuccessful. His evidence was that he felt guilty and wanted to arrange a meeting for the purpose of terminating the relationship.
On 2 July 2007, Patient A and a female acquaintance attended an appointment with the applicant. The acquaintance instructed Patient A to leave the room. She produced a videotape cassette. She stated that she had recorded the sexual intercourse between Patient A and the applicant. She also stated that she had recorded telephone conversations between Patient A and the applicant. She threatened to expose the applicant unless he paid the sum of $100,000. The applicant was unaware that Patient A had been bulk billed for this appointment. The applicant agreed that it was inappropriate to render a bill.
The applicant immediately contacted his professional indemnity insurer and the police. He disclosed his misconduct. He assisted the police to obtain evidence against Patient A's female acquaintance. She was charged with demanding money by threat. She entered a plea of guilty and was sentenced to a term of imprisonment.
In its disposition of the matter, the Tribunal concluded:
[34] There is no expert evidence as to the risk of recurrence. However, the Tribunal accepts that the practitioner's acknowledgement of wrongdoing, contrition, remorse and the active steps that he has taken to gain a greater appreciation of patient/practitioner boundaries suggest that the risk he will repeat the behaviour is low.
[35] Nevertheless, the Tribunal is concerned that the practitioner lacks complete insight into the impact of his conduct on the patient. The Tribunal doubts that the practitioner appreciates that the patient was vulnerable. She used illicit drugs. She had exhibited problematic sexual behaviour. She expressly stated that she believed that her sexual conduct was problematic. Her capacity for parenting was in issue. In those circumstances, the practitioner's abuse of power was likely to be particularly damaging to the patient. Far from being a mitigating factor, in the circumstances the patient's inappropriate sexual advances to the practitioner only emphasised her vulnerability. The Tribunal considers that the practitioner is sincere and well motivated. However, as long as the practitioner lacks full insight into the potential impact of his conduct on the patient, he will remain in capable of fully appreciating his misconduct and there will be some risk of future patient/practitioner boundary transgression
[36] The matters of primary concern to the Tribunal in this case are the need to protect the public (and the profession) by reinforcing high professional standards and denouncing transgressions, deterring other practitioners from misconduct and maintaining public confidence in the profession. In 2006, the practitioner realised that he was uncomfortable with the patient's "sexual issues". Nevertheless, in mid 2007 the practitioner resumed a patient/practitioner relationship and then seriously transgressed the patient/practitioner boundary for a significant period.
[37] The Tribunal has considered the case of HCCC v Dr Cheng NSWMT [2005] 25. The facts in that case were similar to those in the present case. In that case, the Tribunal disposed of the matter by way of a severe reprimand, a substantial fine and the imposition of strict conditions.
[38] Despite the similarities between the cases and the desirability of similar disposition in cases involving similar facts, this Tribunal considers that a disposition short of deregistration would be an inadequate response to the seriousness of the practitioner's misconduct. Both the profession and the public must know that standards will be maintained and that serious misconduct will have consequences for professional registration: Law Society of NSW v Foreman (1994) 34 NSWLR 408 per Giles JA at 471.
Applicant's evidence
Mr Griffin read an affidavit of the applicant sworn 14 February 2011. The applicant was required for cross-examination.
Counsel also tendered:
(a) a report of Dr Rodney McMahon, a general practitioner at the Dapto Medical Centre, where he is the Medical Director. He was not required for cross-examination;
(b) a report of Dr Mitchell K Byrne, Clinical & Forensic Psychologist. He was required for cross-examination;
(c) a reference from Om Dhungel, President of the Association of Bhutanese in Australia;
(d) a reference from James Isabella, Managing Partner of the law firm, Williamson Isabella Lawyers of Dapto.
The applicant detailed his background qualifications, experience and the circumstances leading to the original complaint, to which we have already made reference.
The applicant stated that prior to the Tribunal hearing in 2010, he had commenced a Post-Graduate Diploma in Medical Ethics by distance education through Monash University. He has since completed this single semester course. He undertook this course to gain a greater understanding about doctor-patient boundaries and the inherent power imbalance between a doctor and a patient.
The applicant has completed a short course in "Mental Health Disorders" from the General Practice Learning website of the RACGP on 9 August 2010. The applicant has also completed a short course on the "ACCC and Medical Profession" from the same website, as well as a certificate in "Pedal Dermatoses".
Since his deregistration, the applicant has also undertaken studies mostly by audio and video CDs supplied by the RACGP. These studies were undertaken as part of the applicant's plan to remain up-to-date with current developments. There was no independent confirmation available from the RACGP to verify this study. The topics were as follows:
(i) diet and exercise: text reading. Two hours;
(ii) smoking cessation: Audio CD. Two hours;
(iii) stroke/TIA, CVS, Obesity: Audio CD. Three hours;
(iv) Mediguide: Medicare and other Australian Health programs: Audio CD. Forty minutes;
(v) fertility enhancement strategies: Video CD. Two hours;
(vi) pain management: Audio CD. Three hours;
(vii) diagnosis and management of prostate cancer: Video CD. Two hours;
(viii) restless leg syndrome, diagnosis and treatment: Video CD. One hour;
(ix) intra-uterine device, Mirena: Video CD. One hour;
(x) adult vaccinations: Audio CD. One hour;
(xi) asthma management: Audio CD. Two hours;
(xii) malaria prevention: Audio CD. One hour.
The applicant, in order to update himself on various medical conditions in general practice, has undertaken research into 50 common medical conditions in Australia. He has prepared an electronic handbook containing summaries of these conditions. He stated that if his registration is reinstated, he intends to consider launching a website to make this information available to the public free of charge. He has had some preliminary discussions about this project with Dr McMahon and other former colleagues.
After the applicant joined the Dapto Medical Centre, he advised Dr McMahon of the events that occurred in relation to Patient A . Dr McMahon agreed to act as his mentor. The applicant has met with Dr McMahon to discuss the ethical and professional issues arising from his misconduct on 16 occasions during the period between 2010 - 2011.
The applicant has also attended upon Dr Byrne on five occasions between 26 May 2010 and 20 August 2010. The applicant noted that Dr Byrne had made recommendations as to possible conditions that could be placed upon his registration if he were permitted to resume practice. His evidence was that he had discussed these suggestions with Dr Byrne and would consent to such conditions being placed upon his registration.
Under the heading "Reflecting upon my misconduct" the applicant's affidavit read:
24. Since my deregistration, I have developed a greater understanding of the power imbalance that existed between me and Patient A. I abused my position as a doctor for my sexual gratification. Patient a was a very vulnerable. She came from a broken home and had been disowned by her parents. They had custody of her two children. She was an alcoholic and used illicit drugs. She was very depressed and had exhibited some symptoms that were consistent with a personality disorder. In addition to her mental health problems she described herself as a nymphomaniac. It is clear to me in retrospect that she was 'crying out' for help. She trusted me and probably wanted me to help her.
25. I did not consider referring her to any independent specialists for counselling or treatment in respect to any of these issues. I did not provide any counselling in relation to any of her problems or behaviour. I am very ashamed to acknowledge that instead of helping her, I took advantage of her vulnerability and had sex with her. My behaviour was opportunistic, selfish and disgraceful. I am remorseful for my conduct.
26. In addition to the probable long term effect my conduct had on Patient A I now appreciate that it may also have caused indirect harm to her children and her family. I have not seen or spoken to Patient A since I was in [a city in regional New South Wales]. She did not provide a statement to the previous Tribunal or give oral evidence.
27. I recognise that the publicity surrounding my breach of trust has the potential to:
(i) cause some members of the public, especially women, to have reservations about consulting male medical practitioners, with possible serious consequences; and
(ii) diminish the standing of the medical profession in the community.
28. Since my misconduct my wife and children have suffered considerable stress and anxiety through no fault on their part.
In February 2008, the applicant signed a five year contract with Primary Health Care ("PHC") to work as a medical practitioner at the Dapto Medical Centre. He received a signing-on fee of $500,000 and in return was contracted to work 50 hours per week for 48 weeks of each year. As a result of being deregistered, he has breached his contract with PHC and they have served him with a formal notice to repay $275,000 by the end of April 2011, if he is not re-registered. This period has been extended to the determination of this application.
Since he was deregistered, he has not worked in paid employment. He has utilised an extended line of credit to meet the family living expenses and this has considerably increased the mortgage on his family home. He believed that if he was not re-registered, he would have to sell his home.
The applicant concluded his affidavit by stating:
31. I accept that the decision of the Tribunal was reasonable and made in the public interest. I understand that it was not primarily made to punish me. It has given me the opportunity to examine my behaviour and appreciate that registration as a medical practitioner is a privilege not to be abused.
32. I am determined that I will never behave in this manner again. I am now aware of the circumstances where both subtle and obvious boundary violations can occur.
33. I became an Australian citizen on 17 August 2010. I derived great satisfaction from working as a medical practitioner and would appreciate the opportunity to make a contribution to the community by returning to practice.
During his oral evidence, the applicant said that if he was confronted with a situation like that of Patient A in the future, he had discussed various strategies with Dr McMahon to avoid any recurrence. These included not calling the patient by their first name; encouraging the patient to address him as doctor; not accepting gifts from the patient, and not exchanging private telephone numbers with patients. If an issue arises during a consultation in respect of boundaries, the applicant has decided he must tell the patient that he does not feel comfortable. If it is necessary for him to undertake a physical examination of a female patient, he will give the patient the option of seeing a female doctor. If they declined, he would ask the female patient if she would like a chaperone present during the examination.
During the period of deregistration, the applicant has written a book comprising some 255 pages to assist patients dealing with cancer. He has had informal discussions with the Cancer Council of Australia in respect of publishing this book. If he is re-registered, he proposes to obtain a peer review of the book and send it to the Cancer Council of Australia for assessment.
During cross-examination, the applicant's evidence was that he understood the doctor-patient relationship to be a relationship of trust and mutual respect where the patient consents to the giving of information, sometimes of an intimate and personal nature, and to examinations. He acknowledged that it was important that a doctor did not use his power for his own personal gratification or benefit. If a doctor misused his power, the doctor would be crossing professional boundaries and betraying the trust placed in him by the patient. He further acknowledged that a doctor entering into a personal relationship with a patient would have a detrimental impact on the doctor's ability to treat that patient and that his professional judgment could become clouded if involved in a sexual or personal relationship with a patient. He accepted that this had happened with Patient A. The applicant further accepted that the power imbalance becomes greater if the patient has a psychological or psychiatric problem, or intellectual disabilities. The applicant's evidence was that a power imbalance exists with any patient because a doctor has learning and experience about treating conditions and a patient is seeking the doctor's assistance and help for an illness or condition.
The applicant acknowledged that having a personal or sexual relationship with a patient had the potential to bring the medical profession into disrepute. He stated that he understood that patients should not be at risk during a consultation and that patients were entitled to have an expectation that their boundaries would be respected during any consultation. He explained that minor issues of boundary crossing, such as receiving gifts, or addressing patients by their given names should be seen as a warning sign that the doctor-patient boundary was being crossed and could lead to a boundary violation. He identified the various instances of boundary crossing with Patient A that ultimately led to the boundary violation and that he had ignored the warning signs. In recognition that he was crossing boundaries, he said he put a notation on the computer that he did not wish to see Patient A again, but he subsequently ignored this notation. The applicant also accepted that he made "a big error" in not making adequate notes, particularly of Patient A's complaints of sexual dysfunction and that she was a "nymphomaniac". He agreed that this was a perfect example of a conflict of interest because the omitting of that information from the notes was based on the applicant's concern about personal embarrassment.
The applicant gave evidence that the reason that he had undertaken regular meetings with Dr McMahon was because he did not have an insight into what had caused the incident in the first place. He wanted to ascertain what personality characteristics of his led him to engage in such conduct. He also accepted Dr Byrne's analysis of his personality that because he had been successful during his life, he needed to have "some issues strategies" in place to deal with an issue such as this if it arose. He said that he agreed with Dr McMahon that many of the sessions with him were very confronting and that he found some of the sessions humiliating.
Evidence Dr M K Byrne
Dr Byrne provided a report dated 20 December 2010. Attached to the report was his Curriculum Vitae which disclosed that he was awarded a PhD in 2009. Dr Byrne was assisted in his treatment of the applicant through the administration of two Psychometric measures. The first was a Personality Assessment Inventory which is a standardised psychometric instrument of some 344 questions which sought to assess issues in relation to the applicant's psychopathology; if there was any mental issue present; whether or not he was lying or telling the truth, or answering consistently or inconsistently. In addition, it also looked at issues in relation to what is called a personality disorder and is extremely responsive to the extent that a patient is willing to and prepared to engage in treatment. According to Dr Byrne, this is one of the most commonly used assessments, in the clinical arena, to measure personality.
The applicant's responses were valid and consistent. Dr Byrne also checked these reports to ensure that he had not responded in an erratic manner. Dr Byrne stated " The instrument indicated a tendency and portrayed him in a favourable light and inordinately free of the normal shortcomings." His responses, whilst elevated, did not exceed a level that would be considered to be significantly abnormal. What it suggested was that the applicant had a tendency not to admit shortcomings and to be seen in a positive way. There was no evidence of any significant clinical psychopathology. It indicated high levels of self-confidence and a state of evaluation which was consistent with the elevation in his level of how he wanted to present himself.
The assessment indicated that the applicant did not think he had a problem that required a clinical intervention per se and that he felt that he "needed to be there". Amongst the clinical scales type, none were significantly high although the most prominent was grandiosity and eccentricity, and a sense of personal self-importance.
The second test administered was the Depression, Anxiety, and Stress Scale ("DASS21"). The DASS21 is a 21 item self-report questionnaire designed to measure the severity of the core symptoms of Depression, Anxiety, and Stress. Accordingly, the DASS21 allows not only a way to measure the severity of a patient's symptoms, but also a means by which a patient's response to treatment can be measured. The applicant's results indicated there was no evidence of Anxiety, Stress, or Depression.
Dr Byrne's evidence was that he was particularly mindful of paragraph 35 of the Tribunal's Determination (set out earlier in this Determination), and the issue of the applicant's lack of "insight" into the impact of his conduct. Dr Byrne stated that therefore his assessment and therapy was orientated toward the enhancement of insight and amelioration of barriers to insight.
Dr Byrne consulted with the applicant on five occasions including the initial assessment, which was an extended consultation. Dr Byrne discussed with the applicant the Tribunal's Determination on several occasions across the therapy period. At the conclusion of the initial assessment, as reference was made to his current circumstance, the applicant observed that the issue at hand was "whether or not he had insight into his behaviour". During the following sessions, the applicant was given "homework" tasks. During the fourth session, he advised that he had undertaken a medical ethics course and acknowledged insight deficits, which he related to the therapy conducted thus far. This was reflected in the applicant's written responses from the previous sessions "homework" task where he acknowledged his errors of judgment and self-interest. At the last session, the specific reference to paragraph 35 of the Tribunal's Determination was made, in relation to relapse planning for the future. Reference to his misuse of his position of power made in his written "homework" task completed before the last session was used in discussions of the Tribunal's concerns.
Dr Byrne's evidence was that brief and directive Cognitive Behavioural Therapy ("CBT") was used during the five sessions.
As a consequence of therapy, Dr Byrne observed a tangible shift in the applicant's understanding of his behaviour, the gaps in his knowledge, risk factors to avoid and acceptance of his vulnerability to error. His appreciation of the "mechanics" of his self-entitlement behaviours was also enhanced. He expanded upon these observations in cross-examination as follows:
Q. At the conclusion of the five sessions, what did you conclude in respect to any progress that Mr Parajuli had exhibited in his dealings with you?
A. I made a number of observations. I certainly observed that Mr Parajuli became a more willing participant in therapy. I observed in his PAI, his personality assessment inventory, a low treatment responsivity and indeed I think about the third session some resistance and passive aggressive behaviours. But I observed by the end of therapy that there was some humanity and cognizance of his need for further education and further change. I observed therefore a greater willingness to continue to engage in therapy or engage in training or engage in education.
I also observed an enhanced insight at an intellectual level of the effect of his behaviours and an appreciation of what we call the case formulation, the understanding that we develop of why he did what he did.
I never was of the opinion that Mr Parajuli didn't know that what he did was wrong. But I did observe that he understood after our work together why it was wrong, certainly at an intellectual level and what the consequences of that behaviour was.
During further cross-examination, Dr Byrne gave the following evidence:
Q. Is he motivated, in your opinion, by a desire to continue to have this special standing in the community as a doctor?
A. I believe part of his motivation must be to continue to hold a position of prestige and responsibility.
Q. Can you comment to what extent, if any, that might be protective if he were allowed to return to practise?
A. Absolutely. I'm strongly of the view strongly of the view that Mr Parajuli's motivation to maintain a position of prestige and prominence would override inappropriate behaviour because his insight, his intellectual insight overrides the likelihood of inappropriate behaviour in the future. It's just not worth it.
Dr Byrne stated that he "did not appraise him to have fully appreciated at an emotional level the potential impact of his actions on the subject patient or her family, however I strongly believe that at an intellectual level he understands the impact of his behaviour on the patient, the family, the community and the profession."
Dr Byrne also believed that he appreciated his own need for continuing education and supervision. He was able to complete the Brief CBT goals in the five sessions he had with the applicant. Dr Byrne believed that the goal of enhancing his insight was achieved. In his therapy with the applicant, he "formed the opinion that he formed insight into the need for treatment/action, not that he developed a huge emotional connection with the victim of his misconduct or a sense of morbid guilt."
In Dr Byrne's opinion, the applicant had been sensitised to doctor-patient boundary issues and that should a similar such issue arise in the future, he would seek immediate assistance from professional colleagues. Further, it was the applicant's intention (detailed in the final session with Dr Byrne) to establish a supervisory relationship with Dr McMahon on a fortnightly basis to offset the potential for future difficulties.
In Dr Byrne's opinion, the applicant will comply with ethical and professional obligations in his future conduct as a medical practitioner and that this will include any situations similar to those that were dealt with by the Medical Tribunal.
Dr Byrne observed that if the applicant was re-registered, he believed that he should practise in a medium to large group practice that would afford him opportunities for peer support and supervision and where patients that may be identified as having the potential to challenge his professional boundaries can be re-referred to another doctor in the practice. He further recommended that the applicant be mandated to continue his professional development, particularly in the areas of Mental Health, Personality Disorder, and Impulse Control Disorders and that he receive regular targeted supervision where his training was reflected upon as it relates to his ongoing practice. Finally, he recommended that the applicant access a Balint group and become a regular attendee and contributor. Balint groups are experiential, small group educational activities where practicing general practitioners meet regularly to discuss difficult cases. The focus is on psychological aspects of general practice and particularly the emotional content of doctor-patient relationships. Such groups are operating in the Illawarra area and are generally facilitated by trained mental health professionals.
Evidence of Dr R McMahon
Dr McMahon provided a report dated 3 February 2011. He is a general practitioner in practice with 16 other general practitioners at the Dapto Medical Centre, and is its Medical Director. Dr McMahon is also a Member of the Medical Council, being the nominee from the RACGP. In this capacity, he has always excused himself from the Medical Council, or its committees, when matters regarding the applicant have been discussed. Dr McMahon stated that he had read the 2010 decision of the Tribunal. He has known the applicant professionally, but not socially, since he joined the Dapto Medical Centre three years ago. During this time, he found him to be earnest, competent, caring, committed, and honest. He was very popular with patients and very well liked by the doctors, nurses and other staff working in the Dapto Medical Centre. Dr McMahon said that the applicant always maintained a professional manner and was regarded as careful and conservative. No other doctors or staff have observed or received any comments or complaints from patients about boundary crossings, or any other inappropriate professional behaviour whilst he has worked at the practice.
Dr McMahon said that he has spoken individually with each of the doctors and the office manager in regard to the possible concerns about the applicant returning as a doctor. He said there was universal delight at the possibility of his return and there was no doubt that he would be very welcome if he was able to return. Several doctors offered to assist with supervision or mentoring if this was the wish of the Tribunal.
Dr McMahon also said that he had spoken with Mr Harry Bateman, a principal of Primary Health Care and he confirmed that the applicant would be welcome to return if he was re-registered as a medical practitioner.
Dr McMahon agreed to assist the applicant as a mentor when he disclosed his misconduct in 2009. He said that they have met on roughly three to four week intervals since his deregistration to discuss and reflect on the findings of the Tribunal with a view to improving his insight in regard to his misconduct and its consequences. This involved some very confronting sessions and extensive homework for the applicant in terms of reflection, research and essays, as well as counselling.
Dr McMahon observed that the applicant found many of these sessions humiliating but he was very diligent in his persistence to develop better insight into his misconduct. Particular attention was paid to power imbalance in the doctor patient relationship and the effects that boundary crossing and boundary violations have on patients.
Dr McMahon stated that the applicant has always been contrite and remorseful and that he was confident that he now had good insight in regard to the effects of boundary crossing behaviour on patients. In his opinion, the applicant would not re-offend.
Principles
This appears to be the first application for a reinstatement order brought under the Health Practitioner Regulation National Law (NSW) . As such, no case law has been developed in respect of the new legislation. On the Tribunal's reading of the legislation, it is all but identical to the provisions of the Medical Practice Act 1992 in respect of review applications. In these circumstances, the Tribunal proposes to have regard to the case law that was developed under the previous legislation in determining this application.
Ms Ward submitted that the principles set out in Re Mansoor Haider Zaidi [2006] NSWMT 6 at [42] which were originally set out in In the Matter of Mansour Hassad Zaidi and The Medical Practice Act 1992 as amended (29 August 1996, unreported) and approved by the Supreme Court of New South Wales, Court of Appeal, in Zaidi v HCCC [1998] NSWSC 335; (1998) 44 NSWLR 82 were the appropriate principles to be applied. Mr Griffin did not demur. The principles are:
[1] The purpose of the jurisdiction which is exercised by the Tribunal is not for punishment or further punishment of the former practitioner. Instead the Tribunal's jurisdiction is for the protection of the public which deals with medical practitioners on the basis that they are members of an honourable profession who can be expected without reservation to conduct the affairs of their patients with honour and in whom the patients can place unbounded confidence. What is in question in an application for reinstatement to the Medical Register is whether an applicant is fit and proper to be held out to the rest of the profession, to patients and to the whole of the community as a person worthy of their confidence.
[2] An applicant who seeks to establish fitness to have his name restored to the Register having been earlier removed from it bears the onus of proving the case. It is a heavy onus and the question whether the applicant is a fit and proper person, is one to be trusted to exercise the high responsibilities of the profession is one to be determined on solid and substantial grounds and as an applicant for reinstatement to the Medical Register he is in a more disadvantageous position than an original applicant. He must in effect displace the decision for deregistration which has been made. That decision involves the judgment that the applicant is probably permanently unfit to have his name on the Register. As a consequence, presumptions of fitness which might arise otherwise than from an absence of contrary suggestions can no longer advantage him, precisely because of the removal of his name from the Register on the basis of unfitness.
[3] The ultimate issue is whether the Tribunal can conclude on the basis of all the evidence that an applicant is now a fit and proper person to join other members of an honourable profession in the responsible and trusted activities which are involved in the work of the medical profession, what is at stake is not so much the reputation of the applicant but the Tribunal's assessment of his character, uprightness, honour and trustworthiness. In the case of some offences committed over an extended period with deliberate intent and resulting in serious distress to patients it will be very difficult to contemplate any circumstances in which the name of the offender will be restored to the Register.
[4] It is not a question of what an applicant has suffered in the past. It is a question of his worthiness and his reliability for the future. What in this respect the Tribunal must determine is whether it is satisfied that for the future the applicant will act in accordance with the high standards and responsibilities of the profession. It is difficult to decide what a man will do in the future and the decision in a particular case is to a greater or lesser extent dependant upon the Tribunal's assessment of the applicant. In making that assessment, it may draw inferences from what he has done in the past, and in particular, what led to his being removed from the Register. An understanding of that may assist the Tribunal to determine what are his standards and his understanding of a practitioner's responsibility, and from this, what he is apt to do in the future. Where what has been done in the past has been sufficient to indicate his probably permanent unfitness the Tribunal will require solid and substantial grounds for the conclusion that his standards have changed, his character has been reformed and that he will act honourably.
Mr Griffin accepted that the onus lies upon the applicant to prove he is now of good character and is fit and proper to be held out to the rest of the profession, to patients and to the whole of the community as a person worthy of their confidence.
Consideration
In order for the applicant to succeed in his application, it is necessary for him to persuade us that there are substantial grounds for the Tribunal to believe that he can be trusted to exercise the high responsibilities of the profession and that the public are not at risk. In considering the merits of the application for re-registration, we have taken into account the nature of the offending conduct that led to the deregistration of the applicant. That conduct amounted to a gross abuse of power on the part of the applicant against Patient A, regardless of any involvement that she might have had in the later blackmail attempt. He was aware of the warning signs arising in respect of Patient A including warning signs that led him to make an administrative note on the computer system that he would prefer not to see Patient A. He ignored the warning signs.
The applicant gave evidence in an honest, frank and candid manner that the defect in his personality that allowed him to take advantage of the vulnerability of Patient A was because of his decision that he wanted to satisfy his own gratification. This is the starting point from which this Tribunal must measure any change in his character and any attempts to remedy the defects in his personality.
We are persuaded that a significant change has occurred over time with the applicant. He has moved from a focus of looking at his own position and the problem his conduct caused for himself and his family and progressively over time, he has come to understand, as the Tribunal found, the perspective of Patient A and all of the warning signs that were present that should have indicated to him that Patient A was a vulnerable patient. He has taken steps to consult Dr Byrne during the period of his deregistration. He has also undertaken an ethics course and is continuing regular meetings with Dr McMahon.
The Tribunal found Dr Byrne, both in his extensive report and in his oral evidence, to be an even-handed expert. He was somewhat brutal in his assessment of the applicant's personality and the character traits that he has displayed. No doubt it was a confronting and humiliating experience for the applicant to have his character dissected in both consultations and in writing by Dr Byrne. The applicant presented as a person who had been subjected to a humiliating experience.
In reaching our determination, we have also been influenced by the analysis undertaken by Dr Byrne that it is necessary to not focus too much on trying to change a person's character as opposed to endeavouring to develop the person's insight and understanding into the nature of one's character and how that might affect one's professional life. That seemed to the Tribunal a sensible and pragmatic approach to take. It also seemed, in the Tribunal's view, that it was more likely to achieve a long-term compliance with good behaviour because it works with the character of the person being dealt with and not some ideal about how he would like it to be.
We also take into account Dr Byrne's evidence about the applicant's insight and also the nature of his empathy.
We also take into account the applicant's cognitive behaviour therapy administered by Dr Byrne. Although somewhat unusual, Dr Byrne's evidence was that the applicant does not have an emotional insight into the impact of his behaviour on Patient A. He says in terms of the three components of empathy that he examined, he identified a cognitive component and a communicative component, but not an emotional component. The question for the Tribunal is not whether the applicant had an emotional empathy for Patient A, but whether he has remedied the defects in his character so that the Tribunal can have confidence that he can return to the practice of medicine.
On one view, this seems to arise in the applicant's own motivation to protect his own standing as a doctor, for which he has worked very hard. It seems that the application of the mechanism for protection of the public is actually derived from the applicant's own interests in being able to return to the practice of medicine and continuing to practice medicine.
The Tribunal also takes into account the applicant's attendances upon Dr McMahon. These attendances have been continual during the period of suspension, which demonstrates a level of commitment and an absolute drive on the part of the applicant, to endeavour to demonstrate that he is ready to return to practice. The fact that he has undertaken mentoring during his period of deregistration allowed the Tribunal to have confidence in the ongoing supervision by Dr McMahon.
A further matter of some significance to the Tribunal was that this Tribunal last year made an order that the applicant not apply for re-registration for a period of six months. From time to time, this Tribunal declines to nominate a period of time before which a re-registration application can be made, because the Tribunal forms the opinion that the defects in the medical practitioner's character and conduct are so grave that it would take many years for them to be rectified, if at all.
Here, the Tribunal in 2010 contemplated that it might be appropriate for the applicant to bring an application for re-registration within a relatively short period of time. This does not affect the heavy onus that the applicant needed to demonstrate to the Tribunal's satisfaction, that he has remedied the defects in his character that led to the gross abuse of power with Patient A.
This Tribunal is comfortably satisfied that there is no relevant risk of recurrence of this type of behaviour. We are satisfied that the applicant has displayed considerable intellectual insight, both in relation to the circumstances surrounding what happened to Patient A and even more importantly, a greater understanding of who he is and what motivates him.
If the Tribunal reached this view, Mr Griffin submitted that it would not be necessary to impose a condition as to supervision because conditions are not meant to be punitive, but protective of the public.
The Tribunal takes the view that supervision is required, at least for an initial period of 12 months in order to monitor the performance of the applicant. In this respect, we note that the applicant has indicated that he would not have any difficulty in accepting supervision, although it would impose an extreme workload upon him.
The Tribunal is comfortably satisfied that a significant change has occurred over time in the applicant's character and that he has overcome the flaws of character and temperament that led him to commit the misconduct. We find that the applicant is a fit and proper person to practise as a medical practitioner in New South Wales. The Tribunal is of the view that the applicant's application for reinstatement should be granted with conditions that will require supervision and further study during a period of 12 months.
Costs
In the event that the application was successful, Mr Griffin sought that the Tribunal exercise its discretion and make a costs order in favour of the applicant. Mr Griffin referred to the Tribunal's decision in In re Mr Andrzej Kazmierczak (6 May 2010, unreported) . In that decision, the Tribunal observed at [54]:
The other aspect that we need to deal with is the question of costs. The view that we have reached is that although the applicant has been successful, the fact is that it was entirely appropriate for the Medical Board to oppose his application. The Medical Board in such applications plays a highly significant part on behalf of the public and the medical profession in putting applicants to the test and in ensuring that their background or at least their character is properly ventilated: that no applicant is reregistered without a sufficient investigation into what they have done since the deregistration. Sometimes the Board needs to be in a position to raise matters which could have been raised but which perhaps for good reason were not raised at the earlier hearing. Because it is entirely appropriate for the application to have been opposed and because it was in effect the applicant's conduct which has brought about this application in any event, he should pay the costs of the application.
Ms Ward adopted the observations of the Tribunal in Kazmierczak , submitting that there were benefits to the public in having the respondent appear as a contradictor in these proceedings, particularly in circumstances where it was the applicant's conduct at the outset that led to the respondent having to incur costs in the preparation and conduct of these proceedings.
We are mindful that the applicant is currently under some financial stress. However, we are not persuaded to exercise our discretion in favour of the applicant. In the Tribunal's view, an order should be made that the applicant pay the respondent's costs as agreed, or if agreement cannot be reached, as assessed. Should the applicant make an application for time to pay, we would encourage a sympathetic consideration be given to such an application and that an agreement be reached that would enable the costs to be paid in instalments.
Orders
1. Pursuant to s 163B(1)(c) of the Health Practitioner Regulation National Law (NSW) , the Tribunal makes a reinstatement order.
2. Pursuant to s 163B(4) of the Health Practitioner Regulation National Law (NSW) , the Tribunal imposes conditions on Mr Parajuli's registration, the subject of the reinstatement order. The conditions are set out in Annexure A.
3. The applicant is to pay the respondent's costs of the proceedings, on the ordinary basis, as defined in Schedule 3 of the Civil Procedure Act 2005.
(Signed and sealed)
Staff J
Dr V De Carvalho
Dr M Walker
Ms Diane Robinson
ANNEXURE A
Practice Conditions
1. To practise only in a Medical Council of New South Wales ('the Council') approved group practice (group is defined as at least 3 practitioners),with one other practitioner always rostered on site.
2. To not conduct any home visit consultations.
3. To nominate a supervisor within 28 days of the date of this Decision, to be approved by the Council to monitor and review his clinical practice in accordance with Level 3 Supervision as contained in the Council's Policy on Supervision (PCH7.5). The approved supervisor is to be provided with a copy of the Council's Supervision Policy and a copy of this Judgment. The practitioner is to be responsible for all costs associated with the supervision arrangement. The practitioner is to ensure that:
(i) he and the supervisor meet on a monthly basis for at least one hour, the first meeting to occur within one month of being advised by the Council that the nominated supervisor has been approved;
(ii) each meeting includes (but is not limited to): doctor/patient relationships and particularly, respecting and enforcing boundaries with patients, relevant continuing medical education, case and medical record reviews, workload, patient follow up, communication and assertiveness skills, overall patient care and management, and attendance at a Balint Group which must be at least six times a year;
(iii) at each meeting, the supervisor completes a record of matters discussed at the meeting in a format prescribed or approved by the Council;
(iv) the supervisor forwards to the Council, on a monthly basis a Supervision Report in a format prescribed or approved by the Council;
(v) the supervisor is authorised to inform the Council immediately if there is any concern in relation the practitioner's compliance with the supervision requirements, clinical performance, health, or if the supervisor relationship ceases;
(vi) in the event that the approved supervisor is no longer willing or able to provide the supervision required, details of a replacement supervisor are forwarded for approval by the Council within 21 days of the cessation of the original supervisory relationship;
(vii) that the supervisory arrangement remains in place for 12 months with the supervision period being extended if upon consideration of the supervision reports received, the Council deems such extension necessary.
4. To provide to the Council, within 28 days of issue by the Royal Australian College of General Practitioners (RACGP), a copy of his Quality Assurance & Continuing Professional Development (QA & CPD) Credit Point Statement that is issued twice a year (in March and September). The Credit Point Statement must include evidence of having undertaken activities in the area of mental health.
5. The practitioner authorises and consents to any exchange of information between the Council and Medicare Australia where such exchange is necessary to facilitate the monitoring of compliance with these conditions.
6. These conditions may be varied, amended or removed at the discretion of the Council.
7. The Council is the appropriate review body for the purpose of a review of these conditions.
8. The practitioner authorises the Council to notify his current and future employer/s of any issues arising in relation to compliance with these conditions.
9. Prior to any review of these conditions by the Council Mr Parajuli shall attend a further consultation with Dr Byrne or another Council approved clinical psychologist or psychiatrist who shall provide a report to the Council with a focus on risk assessment and the continued development of Mr Parajuli's insight into his behaviour. The cost of this consultation shall be borne by Mr Parajuli.
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