Re Dr Parajuli

[2010] NSWMT 3

New South Wales

Medical Tribunal

CITATION:	Re Dr Parajuli [2010] NSWMT 3
TRIBUNAL:	Medical Tribunal
PARTIES:	Health Care Complaints Commission Dr Naresh Sharma Parajuli
FILE NUMBER(S):	40023 of 2009
CORAM:	Murrell, SC DCJ - Ilbery, Dr K - Yeo, Dr G - Gleeson, Dr M
CATCHWORDS:	Sexual relations with patient - Professional misconduct – Appropriate disposition of established complaint
LEGISLATION CITED:	Medical Practice Act 1992
CASES CITED:	Briginshaw v Briginshaw (1938) 60 CLR 336; HCCC v Karalasingham [2007] NSWCA 267 ; HCCC v Dr Cheng NSWMT [2005] 25; Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630; Law Society of NSW v Foreman (1994) 34 NSWLR 408
DATES OF HEARING:	12 April 2010
EX TEMPORE JUDGMENT DATE :	13 April 2010
LEGAL REPRESENTATIVES:	Mr Farmer of Counsel for the Complainant Mr Griffin of Counsel for the Respondent
ORDERS:

JUDGMENT:

The Complaint

1 The Health Care Complaints Commission (HCCC) complains that Dr Naresh Sharma Parajuli (the practitioner) has been guilty of unsatisfactory professional conduct and/or professional misconduct in that he has demonstrated judgement or care in the practice of medicine that is significantly below the standard reasonably expected and /or has engaged in other improper or unethical conduct contrary to s 36 (1) (a) and/or (m) of the Medical Practice Act 1992.

2 The practitioner admits the conduct particularised in the complaint.

(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.

3 The practitioner concedes that, by his conduct on 24 May and on 25 May, he engaged in unsatisfactory professional conduct that amounts to professional misconduct because it is sufficiently serious to justify suspension or deregistration: s 37. The practitioner concedes that the inappropriate discussions between 9 May and 22 June were part of a course of conduct that includes the conduct on 24 May and 25 May. He admits that the course of conduct amounts to professional misconduct.

4 The contentious issue is the appropriate disposition of the complaint.

The Conduct

5 The practitioner 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 Australia College of General Practitioners. Having 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.

6 Between late 2005 and mid 2006, the patient consulted the practitioner on four occasions. In July 2006, the practitioner made a computer entry instructing administrative staff that they should not make appointments for the patient to see the practitioner. He did so for three reasons. First, the patient 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" (Exhibit A1, tab 5, para 4). Third, she had "sexual issues" and had made sexual references that caused the practitioner to feel uncomfortable. The patient was not advised that the practitioner no longer wished to see her.

7 Despite the computer instruction, on 9 May 2007 "at the last minute" the practitioner learned that the patient had an appointment to see him. The practitioner accepted the appointment. The patient complained of neck pain. When the practitioner examined her neck, the patient made sexually suggestive comments. There was a discussion about sex toys. The patient advised the practitioner that she had sexual problems and "might be a nymphomaniac”. The practitioner suggested that she make another appointment to discuss the problem. He felt sexual interest in the patient but he also felt uncomfortable and wanted to reflect on his position. At the end of the consultation, the patient gave her mobile telephone number to the practitioner. She told him that he should contact her if he was "interested". The practitioner's notes of the consultation are very brief. They make no reference to any sexual problem or overture.

8 On 23 May 2007, the patient attended a second appointment with the practitioner. She complained of pain caused by sexual activity. He suggested an external examination. He offered a female chaperone, but the patient declined the offer. She made a sexual suggestion and commented that the practitioner had not yet telephoned her. The patient repeated that she "was a nymphomaniac". Over a period of five or six minutes, the patient and the practitioner discussed the patient’s sexual preferences. At one stage, the practitioner jokingly remarked "Maybe I will find some sexual partners for you on the Internet". At the patient's request, the practitioner provided the patient with a medical certificate stating that she was unfit for work from 18 May to 23 May, although there was no medical reason for providing a certificate beyond the period 22 - 23 May. The practitioner did so because he had a sexual interest in the patient and wanted to please her. As the patient was leaving, she hugged the practitioner and he responded with a hug. The practitioner's notes of the consultation are very brief. They do not refer to the discussion concerning "nymphomania" or to any sexual overture.

9 On the evening of 24 May 2007, the practitioner rang the patient's mobile telephone number. They arranged that he would attend her home at about 6 p.m. on 25 May.

10 At about 6 p.m. on 25 May 2007, the practitioner attended the patient's home with a bottle of wine. The patient and the practitioner drank a glass of wine, began to kiss and then had sexual intercourse. The practitioner spent about one hour at the patient's home.

11 On 29 May 2007, the patient telephoned the practitioner complaining of pain. She requested a medical certificate. The practitioner provided a medical certificate certifying that he had examined the patient on 29 May 2007 and found her to be unfit for work. The practitioner concedes that he should not have issued a certificate as he had not examined the patient. The practitioner was unaware that the patient was bulk billed in relation to this “attendance”. He agrees that it was inappropriate to tender a bill.

12 On 21 June 2007, the patient attended a third appointment with the practitioner. She complained of flu symptoms. When the practitioner examined her chest with a stethoscope, the patient made suggestive remarks and the practitioner responded with a sexually suggestive observation. He provided her with a medical certificate stating that she was unfit for work.

13 Between 21 June and to July 2007, the practitioner rang the patient’s mobile telephone on seven or eight occasions, hoping to arrange further sexual contact. His attempts were unsuccessful. The patient said that she was otherwise engaged (Exhibit A1, tab 5, para 21). In evidence, that practitioner stated that, after 25 May 2007, he rang the patient's mobile telephone on several occasions because he felt guilty and wanted to arrange a meeting for the purpose of terminating the relationship.

14 On 2 July, the patient and a female acquaintance attended an appointment with the practitioner. The acquaintance instructed the patient to leave the room. She produced a videotape cassette. She stated that she had recorded the sexual intercourse between the patient and the practitioner. She also stated that she had recorded telephone conversations between the patient and the practitioner. She threatened to expose the practitioner unless he paid the sum of $100,000. The practitioner was unaware that the patient had been bulk billed for this appointment. He agrees that it was inappropriate to render a bill.

The Aftermath

15 The practitioner immediately contacted his professional indemnity insurer and the police. He disclosed his misconduct. He assisted the police to obtain evidence against the patient’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.

16 The practitioner moved to a different area. Since early 2008 he has practised within a substantial group practice. Sometime after commencing in the new position, he disclosed his misconduct to the practitioners within the practice. The medical director is a senior and respected practitioner. He agreed to act as a mentor. He has assisted the practitioner to identify and deal with patient/practitioner boundary issues as well as clinical issues. The practitioner now openly discusses cases with his colleagues. He is well regarded within the practice.

17 The practitioner is undertaking a Diploma of Medical Ethics by distance education through Monash University. It is a single semester course that examines the theory of ethics as well as requiring students to consider case scenarios.

18 On two occasions, the practitioner has consulted a psychiatrist. The consultations have dealt primarily with the practitioner's anxiety concerning the disciplinary proceedings. The need to respect patient/practitioner boundaries has also been discussed. The practitioner intends to continue consulting the psychiatrist in order to reinforce his understanding of patient/practitioner boundary issues.

19 Since mid 2007, there has not been any complaint of unsatisfactory professional conduct.

20 The practitioner says that he misconducted himself because he placed sexual gratification above his professional responsibilities. He was unable to articulate any character traits or personal circumstances that predisposed him to sexual misconduct. He appeared to have no insight beyond being interested in exploring an extramarital affair. However, he is extremely guilty and harbours no residual desire to explore sexual relationships outside marriage. He is contrite and remorseful. He is committed to maintaining high ethical standards. He appreciates that patient/practitioner boundaries exist to protect the patient, the profession and the community as well as the practitioner and his/her family.

Findings on Professional Misconduct

21 The Act provides:

Section 36(1) For the purposes of this Act, “ unsatisfactory professional conduct ” of a registered medical practitioner includes each of the following:

(a) Conduct significantly below reasonable standard.
Any conduct that demonstrates that the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of medicine is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience.
…
(m) Other improper or unethical conduct.
Any other improper or unethical conduct relating to the practice or purported practice of medicine.

Section 37 For the purposes of this Act, “ professional misconduct ” of a registered medical practitioner means:
(a) unsatisfactory professional conduct, or
(b) more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to 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.

22 The HCCC tendered expert peer reports from Dr Walid Jammal, a general practitioner (Exhibit A1, tab 9). In relation to crossing patient/practitioner boundaries by sexual interaction, Dr Jammal makes the following important points in his first report:

(1) The doctor is in a unique position regarding physical and emotional proximity. Patients are expected to disrobe to allow doctors to examine them intimately.

(2) The doctor patient relationship is not one of equality. The patient is generally in a vulnerable position and exploitation by the doctor is an abuse of power.

(3) Breaches of the doctor patient relationship will often cause psychological damage to the patient.

(4) The community expectation of the medical profession is one of utmost integrity.

(5) Personal involvement with the patient will often lead to clouding of judgement.

(6) The patient doctor relationship transcends social values and no standard other than the highest can be acceptable.

(7) A doctor making sexual advances to or engaging in sexual acts with a patient is wrong even if the patient believes this to be acceptable at the time."

23 In Dr Jammal’s opinion, the practitioner's conduct in (1) discussing sex toys and other such matters during consultations, (2) attending the patient's residence for sexual purposes, (3) engaging in sexual intercourse with the patient, and (4) making telephone calls with a view to arranging further intimate contact each crossed professional boundaries. Each aspect of the practitioner's conduct fell significantly below the standard expected of a practitioner whose level of training and experience was equivalent to that of the practitioner. Each attracted Dr Jammal’s strong criticism. As to the practitioner’s clinical notes, Dr Jammal considered that they departed from the standard expected of a practitioner of equivalent training and experience, but that the departure was not significant. He was not strongly critical of the breach of standards. Dr Jammal was not asked to comment on the inappropriate issue of medical certificates or inappropriate bulk billing.

24 Dr Jammal’s evidence was not disputed. However, the practitioner argued that, viewed in isolation, the practitioner’s inappropriate discussions about sex toys and other sexual matters fell short of being professional misconduct.

25 A complaint will be established only if the Tribunal is comfortably satisfied on the balance of probabilities, having regard to the serious nature of the allegation and the serious consequences: Briginshaw v Briginshaw (1938) 60 CLR 336. In the Tribunal's view, when taken as a whole, the discussions between the patient and the practitioner during the period 9 May to 22 June do constitute professional misconduct. During the consultations on 9 and 23 May there was more than fleeting reference to sexual subject matter that had nothing to do with the consultation. In addition to discussing sex toys on 9 May, on 23 May the practitioner "joked" about procuring sexual partners for the patient. The discussions occurred in the context that the patient had expressed concern that she was a nymphomaniac, a matter that should have been taken seriously. The telephone calls that the practitioner made after 25 May were inappropriate because they were made for the improper purpose of arranging sexual contact with the patient. The Tribunal is comfortably satisfied that, taken in isolation from the other particulars in the complaint, the conduct encompassed by particular one in the complaint does constitute professional misconduct because it involves a very serious breach of standards.

26 The Tribunal has no doubt that the conduct the subject of each of particulars two and three in the complaint constitutes professional misconduct because - for the reasons articulated by Dr Jammal - it involves a very serious breach of standards.

27 The complaint does not allege unprofessional conduct in that the practitioner made inadequate clinical notes, furnished inappropriate medical certificates on two occasions and permitted inappropriate bulk billing on two occasions. However, these admitted transgressions add substance to the subject matter of the complaint. Although, at the time, the practitioner was unaware of the inappropriate bulk billing he must accept some responsibility for it.

Disposition

28 On behalf of the practitioner it was submitted that a severe reprimand would be an appropriate disposition of the matter. It was submitted that the practitioner represents no risk to the community, that the Tribunal should encourage practitioners to be frank about their shortcomings and that the Tribunal should support practitioners who are willing to rehabilitate. On behalf of the HCCC, it was submitted that the matter did not necessarily call for deregistration, although that was one option to be considered.

29 Where there is a finding of professional misconduct, the Tribunal has a wide discretion in relation to disposition of the complaint. The full range of disciplinary powers is available. The conduct in question and the circumstances of the individual case will determine the appropriate disposition: HCCC v Karalasingham [2007] NSWCA 267 per Basten JA at [67].

30 The jurisdiction of the Tribunal is protective rather than punitive. The Tribunal's jurisdiction is to be exercised both for the protection of the public and for the protection of the profession: Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630.

31 In determining the appropriate disposition of a complaint, the primary purpose is the protection of the health and safety of the public. Section 2A of the Act provides:

“ 2A (1) The object of this Act is to protect the health and safety of the public.

(2) The object of this Act is achieved by providing mechanisms designed to ensure that:
(a) medical practitioners are fit to practise medicine, and
…
(3) In the exercise of functions under this Act the protection of the health and safety of the public is to be the paramount consideration.”

32 In the exercise of its functions under the Act for the paramount purpose of protecting the health and safety of the public, the Tribunal may consider five matters bearing on protection:

(1) Any need to protect the public against further misconduct by the practitioner.

(2) The need to protect the public through general deterrence (of other practitioners).

(3) The need to protect the public by reinforcing high professional standards and denouncing transgressions.

(4) The maintenance of public confidence in the profession.

(5) The desirability of making available to the public any special skills possessed by the practitioner.

33 On behalf of the practitioner, it was submitted that there is no risk that such misconduct will recur. From the outset, the practitioner acknowledged his misconduct and was contrite and remorseful. He has taken steps to improve his understanding of patient/practitioner boundaries and is practising in a supportive group practice and under the guidance of a mentor. He sought the expert support of a psychiatrist.

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.

Costs

39 The Tribunal's power and discretion in relation to costs was reviewed in NSW Medical Board v Dinakar [2009] NSWMT 8. In relation to costs, the Tribunal has a broad discretion. The general rule is that, in the absence of disentitling conduct by the successful party, the Tribunal will exercise its discretion by compensating the successful party through an order for costs. In this case, the practitioner concedes that it is appropriate to award costs against him.

Orders

(1) The Tribunal directs that the practitioner be deregistered and that there be no application for review of this order for a period of six months from today.

(2) The practitioner is to pay the HCCC’s costs.