Re the Medical Practice Act 1992 and Dr Stanley Vincent

[2002] NSWMT 9

New South Wales

Medical Tribunal

CITATION:	RE THE MEDICAL PRACTICE ACT 1992 AND DR STANLEY VINCENT [2002] NSWMT 9
TRIBUNAL:	Medical Tribunal
PARTIES:	DR STANLEY VINCENT HEALTH CARE COMPLAINTS COMMISSION
FILE NUMBER(S):	40021 of 2001
CORAM:	Sidis DCJ - Edwards, Dr L - Morse, Dr P - Berglund, Dr, C
CATCHWORDS:
LEGISLATION CITED:	THE MEDICAL PRACTICE ACT 1992
CASES CITED:
DATES OF HEARING:
DATE OF JUDGMENT:	20 September 2002

JUDGMENT:

In the Medical Tribunal of NSW
District Court No 40021/01 Dr Stanley Vincent 20 September 2002
copyright


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 the name of the complainant, and the names and addresses of the patients referred to in the proceedings, their husbands, and any material likely to identify those persons or their addresses.

This matter was heard by the Tribunal on 29, 30 and 31 July 2002 when judgment was reserved.

NATURE OF COMPLAINT

Pursuant to the Medical Practice Act 1992 (the Act), the Tribunal is enquiring into a Complaint Exhibit A, Tab 1 (the Complaint) of the Commissioner, Health Care Complaints Commission (the Commission) , concerning the professional conduct of Dr Stanley Vincent (the practitioner) .

The Commission complains 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.

Particulars set out in the Complaint dated 27 September 2001, as amended on 29 and 31 July 2002, are as follows:


1. In or about 1991 the practitioner entered into a sexual relationship with Patient A.

2. In or about 1997 the practitioner entered into a sexual relationship with Patient B.

2A. Between about 1987 and 1998 the practitioner entered into a number of other sexual relationships with patients.

3. Between approximately 1995 and 1998 the practitioner on a number of occasions inappropriately:

a. Cuddled and massaged Patient C.
b. Told Patient C how attractive she was.

4. In or about June 1998 the practitioner made inappropriate comments to Patient D, namely:

a. “This should be the best time of your life sexually. You should be feeling no inhibitions and be prepared to try out different positions” or words to that effect.
b. “Are you enjoying sex?” or words to that effect;
c. “I can show you how you can enjoy your sex life” or words to that effect.

5. In or about June 1998 the practitioner failed to maintain appropriate professional boundaries when he attended the home of patient D at 10 pm one night for other than professional purposes.

6. On or about 14 September 1998, during a consultation the practitioner inappropriately massaged and hugged Patient E.

7. On or about 14 September 1998, the practitioner failed to maintain appropriate professional boundaries in that he telephoned Patient E and offered to attend her home and massage her.

8. On or about 26 November 1996 during a consultation the practitioner inappropriately massaged and hugged Patient F.

9. In or about 1996 during a consultation the practitioner inappropriately hugged Patient G.

10. During the course of professional relationship with patient H the practitioner inappropriately hugged Patient H.


The Complaint falls to be determined under:

1. Section 36 (1) (a) of the Act which provides:

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.


and

2. Section 37 of the Act which 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.”

The obligations of medical practitioners were encapsulated by Priestley JA in his minority judgment in Richter v Walton NSW Court of Appeal, unreported, 15.7.93 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.”

The majority decision in Richter v Walton was over-ruled in Health Care Complaints Commission v. Litchfield 41 NSWLR 630 @ 639 where it was stated that the dissenting judgment of Priestley JA was entirely correct.

Onus and Standard of Proof

After reference to Rejfek v McElroy (1965) 112 CLR 517 the Court of Appeal accepted in Bannister v Walton (1993) 30 NSWLR 699 that the standard of proof requires that the Tribunal be ‘ comfortably satisfied on the balance of probabilities’. The Commissioner bears the onus of satisfying the Tribunal that the Complaint has been proved to this standard.

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 (1938) 60 CLR 336. 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.”


ADMISSIONS

At the commencement of the hearing the practitioner admitted the Complaint and the particulars of the Complaint, as amended. It was conceded that the conduct referred to in the particulars of the Complaint constituted professional misconduct.

The Tribunal therefore proceeded to hear evidence for the purpose of determining the appropriate penalty.

The position taken by the practitioner was that he had followed a course of treatment and reflection which had given him insight into the circumstances in which the misconduct had been committed so that it would be sufficient that he be permitted to continue to practise on a supervised basis. The practitioner was placed under supervision on 31 January 2002.

For the Commission it was argued that the professional misconduct was of a serious and repetitive nature, that the practitioner had failed to be full and frank in his response to the Complaint and that the only proper order of the Tribunal would be the removal of his name from the Register of Medical Practitioners of New South Wales.

PRACTITIONER’S EXPERIENCE AND BACKGROUND

1. The practitioner was born on 4 August 1951. He is now aged 52.

2. He attended Homebush Boys High School and was dux of the school in his final year.

In 1974 he was awarded a first-class honours degree in electrical engineering. He was awarded a science degree in 1975.

3. In 1980 he commenced his medical studies at Sydney University and graduated MBBS in 1984.

4. Between 1984 and 1987 the practitioner served as an intern and subsequently resident at Royal Prince Alfred Hospital and Prince of Wales Hospital.

5. Between 1987 and May 1989 the practitioner worked for the After Hours Sydney Medical Service and as locum in various places.

6. The practitioner joined the general practice at 616 Warringah Road, Forestville in May 1989. He left that practice in late 1998. At that practice, the practitioner provided counselling and general medicine services with a substantial proportion of his work involving skin cancer and the performance of minor skin procedures at his rooms.

7. The practitioner left the Forestville practice in 1999 after his then partner, Dr Vandenberg, reported incidents which led to the bringing of the Complaint.

8. He then practised part time or as locum in various practices throughout Metropolitan Sydney. Currently he practises part time at the Town Hall Medical Centre, mostly in a skin clinic but occasionally in general practice.

9. An inquiry instituted pursuant to s 66 of the Act was held on 31 January 2002. As a result of that inquiry 13 conditions were imposed on the practitioner’s continued right to continue in practice, effective from 31 January 2002. The certificate of registration Exhibit D sets out the conditions imposed.

PARTICULARS OF THE COMPLAINT

1 Particular 1 - In or about 1991 the practitioner entered into a sexual relationship with Patient A

In his reply Exhibit A, tab 6(a) to the Commission dated 20 November 1999 the practitioner stated that his relationship with Patient A commenced in 1991 when she was a new patient to his practice and while she was going through a divorce. He treated Patient A as well as her three sons aged 7 to 12 years. He stated that after the relationship commenced he had ceased treating Patient A except for minor flu’s or skin complaints. This assertion could not be confirmed because Patient A’s medical records were not located at the Forestville practice. The practitioner suggested that they might have been forwarded to a subsequent practitioner.
In his affidavit Exhibit 2, tab 1, pp 21-27 of 17 June 2002 the practitioner stated that the relationship was consensual and continued until 1994 when he and Patient A parted on good terms.


He believed that Patient A had the capacity to make her own judgment about the appropriateness of the relationship. He said he was aware that a sexual relationship with a patient was regarded as inappropriate but believed that the basis for this principle was that such relationships could be harmful to the patient. This did not apply to his relationship with Patient A and he was therefore comfortable in pursuing it.

2. Particular 2 – In or about 1997 the practitioner entered into a sexual relationship with Patient B

In his reply to the Complaint the practitioner stated that he commenced this relationship when Patient B’s marriage was coming to an end. He subsequently treated Patient B for vaccinations or coughs and colds only. He also treated her sons. Patient B consulted specialists for gynaecological problems and consulted another doctor at a nearby medical centre. Their doctor/patient relationship was formally ended. He stated that the relationship ended in November 1999.
In his evidence to the Tribunal, the practitioner stated that he had entered into a relationship with Patient B after he had learned through questions relating to her stress that she had matrimonial problems. He asserted that he had treated Patient B for minor ailments only during the course of the relationship, although the practice records indicated treatment for irritable bowel syndrome and atrial fibrillation, both of which the practitioner stated were stress related conditions. The last consultation took place in February 1998 after a conversation with Dr Vandenberg.
The practitioner said that he had left his wife in anticipation of co-habiting with Patient B but she had terminated the relationship.

2A. Particular 2A - Between about 1987 and 1998 the practitioner entered into a number of other sexual relationships with patients


In the course of the proceedings the practitioner admitted to five further sexual relationships with patients; some of which he had already disclosed to Dr Ross, his treating psychiatrist:

1. Mrs A : The practitioner encountered Mrs A when he was called out in the course of his employment with the After Hours Sydney Medical Service to treat her for migraine. On arrival at the patient’s home, her 12 to 16 year old daughter was in the room. The patient asked her daughter to leave and became flirtatious. The practitioner said he responded. He said he treated this patient on one occasion only.

2. Patient J : This relationship commenced in 1990 and continued for 18 to 24 months. This is the patient referred to in paragraphs 10 and 11(a) of the affidavit of 17 June 2002.

The practitioner said that he had treated Patient J for a period of six months at the time the relationship commenced. She was in a marriage of convenience and had one child, a daughter whom he also treated. The relationship ended when she moved to Newcastle. He described Patient J as a willing participant in the relationship, not psychologically vulnerable and said he had regarded her as unlikely to be harmed by it.

3. Patient M : This relationship commenced in 1990 and lasted for about one or two months. Patient M had been divorced for some time when the relationship took place. They separated because they were not compatible.

4. Patient K : In his affidavit the practitioner stated that the relationship began in 1994 and continued for three years and intermittently thereafter. In his evidence to the Tribunal the practitioner stated that the relationship began in the early 1990’s and continued for 2 years.

5. Patient L : This relationship commenced in the early 1990’s and lasted for about 12 months. Patient L had been a patient for two years at the commencement of the relationship. She was going through a marriage breakdown and was stressed concerning the divorce because she was a Catholic. He believed at the time that she had made her own independent decision to enter into the relationship and that there was an equality of power in the relationship.


There was also evidence in relation to a sexual relationship with an unnamed patient in the mid 1990’s. The practitioner stated that this patient had constantly asked for benzodiazepine drugs but he had not prescribed them for her. He denied that this suggested that the patient was vulnerable.

He agreed that he had told his treating psychiatrist, Dr Ross, that he felt that he could have been manipulated into prescribing narcotic drugs for her but that he had not done so.

3. Particular 3 - Between approximately 1995 and 1998 the practitioner on a number of occasions inappropriately:

a. Cuddled and massaged Patient C.
b. Told Patient C how attractive she was.


Patient C provided a statement Exhibit A, tab 3(a) dated 5 July 1999. She stated the practitioner had been her general practitioner for a number of years when in 1989 he offered her a position as receptionist at his Forestville practice. She accepted this offer.

Patient C made reference in her statement to her knowledge or suspicions of the practitioner’s relationships with or approaches to patients.

She stated that between September 1995 and June 1998 he made approaches to her, which she rejected. She stated that he also hugged her, massaged her back and made suggestive comments. She threatened to resign on a number of occasions but was persuaded by the practitioner to stay on the basis that he would discontinue his unwelcome attentions. On each occasion his attentions were resumed after a period of a few months.

The practitioner stated in his reply to the Complaint that Patient C was having marital problems. He said he had apologised to her.

In his affidavit of 17 June 2002, the practitioner rejected Patient C’s assertion that she was happily married. He believed that because of her problems in her marriage she might be receptive to an approach from him. He said he was aware that his behaviour was inappropriate but was driven by depression and his perception from time to time that Patient C wanted a relationship with him.

He acknowledged that some of his approaches to Patient C occurred whilst he was in a relationship with Patient B and thus had no need of another relationship. He stated that his apology evidenced the fact that he was aware that his behaviour was inappropriate. He acknowledged nevertheless that he continued to make approaches to her.
In his evidence to the Tribunal the practitioner stated that Patient C had made a physical approach to him. This was the first time this allegation had been made. He agreed that Patient C had continuously rebuffed him and that he had continued to pursue her because he had been unable to exercise self control.

4. Particular 4 - In or about June 1998 the practitioner made inappropriate comments to Patient D, namely:

a. “This should be the best time of your life sexually. You should be feeling no inhibitions and be prepared to try out different positions” or words to that effect.
b. “Are you enjoying sex?” or words to that effect;
c. “I can show you how you can enjoy your sex life” or words to that effect.


5. Particular 5 - In or about June 1998 the practitioner failed to maintain appropriate professional boundaries when he attended the home of patient D at 10 pm one night for other than professional purposes.

Patient D provided a statement Exhibit A, tab 5(a) dated 29 August 1999. She stated that she had been a patient of the Forestville practice since 1982. She consulted the practitioner on an occasional basis between 1994 and 1996 and then transferred to him as his patient. The practitioner also treated her husband and her two children. In 1996 the patient underwent hysterectomy. In the course of a consultation with the practitioner early in the June 1996 the practitioner asked Patient D about her sex life following surgery. She stated:

I was very surprised when Dr Vincent asked me this because I couldn’t understand how the topic had arisen when I was consulting him for an entirely different reason. I was feeling embarrassed, however, I replied “I feel its okay”. Dr Vincent then said “This should be the best time of your life sexually. You should be feeling no inhibitions and be prepared to try out different positions.” He then asked me “Are you enjoying sex?” By this stage I was feeling very embarrassed and just wanted to terminate the conversation. I replied “Bruce and I don’t talk about these sort of things but we will be able to work through it and sort it out.” He then said “I can show you how you can enjoy your sex life”. I became extremely upset at this comment. I kept my emotions inside me, however and did not cry. I said to Dr Vincent “I don’t want to pursue this conversation further”.

In the course of the conversation Patient D told the practitioner that her husband was away. At 10 pm on the same day the practitioner went to the patient's home. Patient D stated:

I was shocked. I noticed immediately that he did not have his doctors bag and that this did not appear to be a professional visit. I felt upset and angry that he had come to my house. I immediately said to him “What are you doing here? Is this about what you attempted to talk about today at the surgery?” He looked sheepish when he replied “Yes” and I then said to him in a forceful manner “Go away from me and never ever contact me again.” I shut the front door immediately. I was in a panic state and I was shaking badly.

Patient D reported these events to her husband and to a friend. On his return from overseas her husband confronted the practitioner. The husband was told by the practitioner that Patient D had indicated that she was unhappy with the extent of his overseas travel. Patient D denied having had any such conversation with the practitioner.


Patient D stated that she left the Forestville practice angry and upset by the practitioner’s conduct.

In his reply to the Complaint the practitioner claimed that Patient D had consulted him several times about relationship problems with her husband and that she had made overtures towards him for which she later apologised.

In his affidavit the practitioner did not repeat the suggestion of a direct approach to him by Patient D but stated that his clinical notes indicated that Patient D had complained of sexual difficulty prior to her hysterectomy and that it was appropriate to deal with this topic with her in a clinical context.

The practitioner conceded however that because he perceived that, if the Patient D’s relationship with her husband was in difficulty, he might be able to enter into a relationship with her, he had used this as an opportunity to make an approach to her. He stated that Patient D had behaved in a fashion in the consulting room which lead him to perceive that she was open to such an approach.


6. Particular 6 - On or about 14 September 1998, during a consultation the practitioner inappropriately massaged and hugged Patient E

7. Particular 7 - On or about 14 September 1998, the practitioner failed to maintain appropriate professional boundaries in that he telephoned Patient E and offered to attend her home and massage her.

The practitioner treated Patient E, her husband and children or a period of five years to September 1998. Patient E provided a statement Exhibit A, tab 4(a) dated 17 June 1999.

She stated that at a consultation on 14 September 1998 the practitioner offered to massage her sore shoulders. For this purpose the practitioner asked her to take a position that faced him and to place her head on his shoulder. She said she felt this was inappropriate and she felt uncomfortable. After the massage the practitioner showed her exercises, hugged and cuddled her and rubbed her back. He massaged her face.

Patient E was upset at this conduct. She telephoned her husband to report it. Thirty minutes after she left the practitioner's surgery she received a telephone call on her mobile telephone in which the practitioner offered to show her the exercises again. Patient E declined. Five minutes later she received a further telephone call in the course of which the practitioner stated that there was something wrong and asked if he could come to her home to talk to her. Patient E declined and told the practitioner that she was not the person with whom he should discuss his problems.

Patient E and her husband reported the incident to Dr Vandenberg who told them of their right to bring a complaint against the practitioner. Patient E has had no further contact with the practitioner.

In relation to Patient E the practitioner, in his reply to the Complaint, minimised the incident as a cuddle lasting for a brief second. He stated in his affidavit that he felt compelled to make an approach to Patient E because, as a result of her actions during the massage, he believed that she wanted to have a relationship with him. He conceded that this was a wrong perception on his part. He stated that, because he was profoundly depressed at the time, he was vulnerable and was unable to control his behaviour or to maintain proper professional boundaries.

8. Particular 8 - On or about 26 November 1996 during a consultation the practitioner inappropriately massaged and hugged Patient F.

In his affidavit the practitioner acknowledged that he behaved inappropriately by cuddling Patient F during the course of therapeutic massage. He stated that Patient F is a short lady so that the stance which she adopted for the massage placed her closer to him that usual. He misinterpreted this situation as an approach by her. He was aware that it was inappropriate for him to cuddle her, but he did so because he was depressed and therefore vulnerable to her perceived approach.

In his evidence to the Tribunal the practitioner stated that Patient F was separated and anxious at the breakdown of her longstanding marriage. He acknowledged that his conduct could have distressed her.

Patient F was sufficiently distressed to leave the Forestville practice.

9. Particular 9 - In or about 1996 during a consultation the practitioner inappropriately hugged Patient G.

In his reply to the Complaint the practitioner acknowledged that he had behaved inappropriately with Patient G when comforting her.

In his affidavit he stated that Patient G was an existing patient of the practice who was going through a separation or divorce. When comforting her during a consultation, he cuddled her. He knew the behaviour was inappropriate but took it upon himself to make a judgment that it would not harm her. He thought that she, like him, needed comfort.

In his evidence to the Tribunal, the practitioner said that he was aware that Patient G was anxious. He agreed that he had hugged her at the end of consultations three or four times. He was unsure whether he had prescribed


anti-depressant medication for her. He said her marriage breakdown had been prolonged.


She transferred to Dr Vandenberg.

10. Particular 10 - During the course of professional relationship with patient H the practitioner inappropriately hugged Patient H.

In his reply to the Complaint the practitioner acknowledged that he had behaved inappropriately with Patient H when comforting her.

In his affidavit the practitioner stated that Patient H was an existing patient of the practice and that the incident involving her was similar in nature to that which involved Patient G and occurred within one month of that incident. He said Patient H needed counselling as she was separating from her husband and he thought he could help her with her problems. He knew his behaviour was inappropriate but thought it would not be harmful to Patient H because her ability to make a judgment without being influenced by the doctor/patient relationship was not impaired. He stated that the basis for this belief was that she was not clinically depressed, suicidal, alcoholic or drug dependent.

In his evidence to the Tribunal, the practitioner agreed that Patient H had suffered from panic attacks for which he had prescribed Prozac. He agreed that she could have been vulnerable. He stated that he hugged her on occasions and that he persisted with the suggestion of a relationship although she had told him that she was not interested.

She transferred to Dr Vandenberg.

FACTORS ADVANCED IN SUPPORT OF RETAINING REGISTRATION

1. Absence of Harm

The practitioner stated that he had been aware at the time of his misconduct of the general rule of practice that sexual relationships between a doctor and patient were regarded as inappropriate. He believed that the basis for this rule was that such relationships could be harmful to the patient. He stated that the relationships in which he engaged had not harmed his patients because he did not treat them for any serious illnesses after the commencement of those relationships. Further, he assessed the women with whom he engaged in such relationships as capable of making their own decisions about propriety.

His statement concerning treatment for minor ailments only did not appear to be accurate in relation to Patient B.

Questioned about his understanding of the rule, the practitioner responded that at the time of his graduation in 1984 the rule had not clearly stated that sexual relationships with patients were strictly forbidden. He understood at that time that they were regarded as fraught with difficulty and that they should be avoided. He regarded the rule as based on the principle of do no harm .

He also stated that he believed that the rule had been designed to suit a perception that the profession wished to present to the public. He had not recognised at the relevant time that the rule reflected other principles such as breach of trust, the loss by the patient of a doctor, the effect of the conduct on the patients and their families and its effect on the practice.

He agreed that the prohibition was absolute but had read the formulation of the rule as set out in newsletters Exhibit C issued by the Medical Board as indicating that each case would be dealt with on its merits so that it would not apply where the patient’s interests had been looked after and where there was a balance of power in the relationship.

The practitioner’s psychiatrist, Dr Ross, stated that the practitioner held the clear belief that he was doing no wrong and that there were circumstances in which a sexual relationship with a patient was permissible.

2. Depression

The practitioner claimed that he had been affected by a depressive illness of gradually increasing intensity which led to his seeking comfort in relationships with his patients.

He said he believed that he suffered from dysthymia prior to 1995 which became more obvious by 1995 and developed into major depression by 1998. In about 1996, he said, his condition had developed to the point where he ceased to address the question of whether his conduct might be harmful to his patients.

He related the source of this condition to the unsatisfactory relationship between his parents and his own unsatisfactory marriage. He had not wanted to leave his marriage because of the consequence it would have for his two young sons.

He denied that he had not suffered from depression prior to 1998 or that he had raised the issue of depression as a means of minimising the gravity of his conduct.

He denied that his conduct was a matter of absence of self control, stating that it fulfilled his need to boost his self esteem.

Dr Ross provided a report Exhibit 2, tab 4 dated 2 July 2002. Dr Ross commenced treatment of the practitioner in September 1998 when he diagnosed the practitioner as suffering from a chronic depressive illness. This illness, he said, contributed to the practitioner’s boundary violations and his susceptibility to seeking sexual contact and intimacy with his patients.

Dr Ross attributed this condition to the complaints made to the Commission, the practitioner’s long working hours and stress in his private life. He reported that the practitioner also described symptoms of low grade depression or dysthymia for at least two years before it developed into major depression and that the dysthymia could have been present, undetected, before this.

3. Rehabilitation

The practitioner stated that that he had now recovered from his depressive illness and was no longer taking anti depressant medication.

As noted, he has received treatment from Dr Ross since September 1998. Consultations initially proceeded at weekly intervals, then at two weekly intervals and progressed with lengthier intervals between consultations to the point where Dr Ross had seen the practitioner on two occasions since mid 2000. Dr Ross agreed that the practitioner’s condition had resolved with anti depressant medication and psychotherapy.

Dr Ross stated that, aside from depression, contributing factors to the practitioner’s misconduct had been aspects of his personality, past experience and social anxiety. He said the practitioner had rationalised his transgressions but had developed insight so that he no longer rationalised and he expressed remorse and regret.

The personality traits referred to lead Dr Ross to conclude that the practitioner remained vulnerable to further misconduct, particularly if he became depressed. Dr Ross took account of the fact that the practitioner’s conduct, described by Dr Ross as boundary transgressions , had been major and multiple. On the basis, however, that he had practised for three years without major boundary transgressions, that during that period he had been unofficially monitored by the treatment provided by himself and Dr Burkitt and that he had made substantial effort at rehabilitation, Dr Ross recommended that the practitioner remain in practice on the conditions imposed following the s 66 inquiry in January 2002, including continued participation in the Impaired Registrant’s Program.

The practitioner’s own efforts had included the pursuit of treatment and reading with enthusiasm the material referred to him by Dr Ross and Dr Burkitt. The result had been a considerable change in the practitioner’s understanding of the boundaries which should never be crossed.

Dr Burkitt has provided counselling to the practitioner at two weekly intervals since 9 February 2000. He was not called to give evidence. His affidavit Exhibit 1 provided the explanation that he had undertaken treatment of the practitioner on the basis that he would not provide evidence for any inquiry into the practitioner’s conduct. The practitioner claimed to have benefited from his treatment by Dr Burkitt.

The practitioner consulted Dr Wright, psychiatrist, as required by the Medical Board. Dr Wright provided reports Exhibit 2, tab 5 dated 7 December 2001 and 1 April 2002. Dr Wright confirmed Dr Ross’ diagnoses of major depression and long term depressive illness, contributing, with the practitioner’s background and personality, to his misconduct. He agreed that the practitioner had recovered from his depressive illness and, like Dr Ross, was persuaded that the practitioner might remain in practice subject to the conditions imposed in January 2002.

In support of his claim to have been satisfactorily rehabilitated the practitioner informed the Tribunal:

Q. What can you say about the likelihood, if any, of the misconduct that has occurred in the past occurring again in the future?
A. It is extremely unlikely to occur in the future.

Q. And why do you say that?
A. Because I have received treatment and I understand the insights and the damage that I can do to my patients and the place where I was coming from is not the same. I have had considerable personal development and psychotherapy and that is just not an issue any more. Transcript p.12


4. Supervision

In accordance with condition 13 as imposed following the s 66 inquiry, the practitioner has been supervised since February 2002.

His supervisor at the Town Hall Medical Centre is Dr Nelson. In her affidavit Exhibit 2, tab 2 Dr Nelson stated that she had worked with the practitioner at the Town Hall Medical Centre for 18 months. She has supervised him since February 2002. She stated that the practitioner works mainly in the skin clinic, that she had received no complaints from any patient and that she regarded the practitioner as competent. She and the practitioner have met weekly since February 2002. Those meetings last for about five minutes. The practitioner has appeared to be relaxed, well and not depressed. Dr Nelson said she inquires at these meetings whether there has been any inappropriate contact with staff of the Centre.

Dr Nelson referred in her affidavit to a part time receptionist at the Centre who had informed her that the practitioner had telephoned her on her mobile telephone following which she expressed a preference not work at reception on the days when the practitioner was in attendance.

5. Impaired Registrant’s Program

In accordance with condition 1 as imposed following the s 66 inquiry, the practitioner has participated in the Impaired Registrant’s Program since February 2002.

The practitioner stated that he understood that the Program required some years of monitoring.

6. Competence

There is no evidence of any complaint concerning the practitioner’s technical ability as a general practitioner.

The practitioner stated that he regarded himself as a good doctor. It has already been noted that Dr Nelson regarded the practitioner as competent and that no complaints had been received from patients during her period of supervision of the practitioner.

FACTORS ADVANCED IN SUPPORT OF DEREGISTRATION

1. Peer Review

Dr Ian M Chung, GP, was requested by the Commission to review the practitioner’s conduct in relation to Patients A – E inclusive.

He stated Exhibit A, tab 8(b) that he was critical in the extreme of the practitioner’s conduct in relation to Patients A and B and that this conduct attracted his extreme disapproval.

He was strongly critical of and strongly disapproved of the practitioner’s conduct in relation to Patients C, D and E.

Dr Chung’s views were unaffected by the practitioner’s response to the Complaint.

2. Pattern of Conduct

The evidence concerning the patients referred to in the particulars of complaint indicated a pattern of conduct with the following features:


(1) the patients were experiencing relationship problems;
(2) the practitioner became aware of these problems through clinical contact with the patients;
(3) he approached the patients after they had confided their problems to him so that a close association of trust had developed;
(4) he also treated the families of the patients;
(5) he was not concerned or deterred by the fact that patients were sufficiently offended by his conduct to transfer to other general practitioners.

In addition the practitioner at times persisted in his attentions although he was aware that the patient had rejected his approaches.


3. Disregard of the warning from Dr Vandenberg

In his complaint Exhibit A, tab 2 to the Commission Dr Vandenberg referred to a practice meeting held in early 1998 attended by himself, the practitioner and a Mrs Cameron at which he had:

…warned him again in the strongest possible terms, insisting that he mend his ways.

The practitioner agreed that he had given an undertaking to Dr Vandenberg that he would not repeat his misconduct. He agreed that he had breached this undertaking on several occasions.

4. Medical Board Policy Statement

The policy statement in relation to Medical Practitioners and Sexual Misconduct provides, inter alia:


1. It is an absolute rule that a medical practitioner who engages in sexual activity with a current patient is guilty of professional misconduct.

2. While not detracting from the fundamental impropriety of such activity, the sanction applied, as a result of a finding of misconduct, may vary according to the circumstances of each case.

3. Factors to be considered include the degree of dependence in the doctor/patient relationship, evidence of exploitation, the duration of the professional relationship and the nature of the medical services provided.

In an extreme example of the extent of his rationalisation of his misconduct, the practitioner said he had not understand paragraphs 2 and 3 to be dealing with the sanctions which might apply, according to the severity of the misconduct. The practitioner interpreted these paragraphs as indicating that sexual activity with a patient was permissible in circumstances where no harm was caused.
Dr Ross confirmed that the practitioner at the commencement of treatment held the clear belief that he had done no harm and on that basis could enter into a sexual relationship with a patient.


5. Personality Traits

Dr Ross described these traits as follows:


(1) Narcissistic: being a self centred approach which led the practitioner to be unaware of, not cognisant of or not responding to the effect of the relationships on his patients.

He said the practitioner took an approach that fitted his needs rather than those of his patients.

(2) Avoidant: involving him in avoiding relationships with men because of his anxiety concerning relationships with men.


Dr Ross stated that these personality traits remain a feature of the practitioner’s personality and that change could be achieved only with treatment and very slowly.

6. Concerns Expressed by Treating Practitioners

Dr Ross expressed two concerns:

1. The practitioner entered into a relationship with a receptionist, who was not a patient, at a practice in Ryde where he worked after leaving Forestville.

The practitioner agreed that Dr Burkitt had told him that this relationship was inappropriate but he had not accepted that view.
Dr Ross had discussed this relationship with Dr Burkitt who was very concerned about it. Dr Ross was less concerned but regarded the relationship as unwise and not a positive development.


He had agreed with Dr Burkitt to discuss the relationship with the practitioner but he did not attend at the appointment made for the week following his discussion with Dr Burkitt. The practitioner had, in fact, not consulted him further for one year, stating that he had pursued therapy with Dr Burkitt.

2. Dr Ross was concerned at the practitioner’s discussions with his patients of his courses and experience with the Landmark organisation, from which the practitioner claimed to have gained significant benefit.

As for Dr Burkitt the Commission relied on an entry in his notes Exhibit 6 of 31 July 2001 which reads:

…I felt it appropriate to express how I experience him and my concerns about the way that he does not express any real feelings or empathy for people but rather assesses them entirely in terms of commodities and “doing”. I said that in this context I felt that he was not “safe” with women patients because he had only an intellectual basis upon which to guide his actions and not an ethical one.


The practitioner stated that this comment was made by Dr Burkitt in the context of challenging him into examination of the features of his conduct. It is noted, however, that there are other references Exhibit 6, 9.8.00, 30.1.01 in Dr Burkitt’s notes to the practitioner’s treatment of his sexual partners as commodities.

7. Dishonesty

It was apparent that there were two significant areas in which the practitioner had not been fully truthful in his dealings following the disclosure of his misconduct:


(1) He had failed to make full disclosure of the extent of his misconduct to the Commission, to the Tribunal in his affidavit, and to Drs Ross, Burkitt and Wright.

This failure to disclose greatly undermined the value of the evidence of Drs Ross and Wright.

Dr Wright, in his report of 7 December 2001, stated that the practitioner appeared to give a complete and honest account of his history. However, it transpired that the practitioner had limited his discussions with Dr Wright to matters raised in the Complaint and that he told him nothing of the relationships that had been disclosed to Dr Ross. He also informed Dr Wright that he had ceased treating the patients with whom he was in a sexual relationship. The evidence before the Tribunal established that this statement was untrue.

Dr Ross in cross examination agreed that trust was an important consideration in any decision to permit the practitioner to continue to practice subject to conditions. He agreed that it would be difficult to predict what might happen in the future in the absence of truth concerning the past.

Dr Ross noted that the practitioner’s affidavit had not disclosed all of the sexual relationships that had been disclosed to him. Further, through cross examination of the practitioner it had become apparent that he had not been full and frank with Dr Ross.

Dr Ross agreed that this failure to disclose fully indicated that the practitioner was still covering up in an attempt to minimise the impact of his conduct in the context of his appearance before the Medical Tribunal.


(2) The practitioner disclosed in the course of his cross examination that the approach made to the part time receptionist at the Town Hall Medical Centre had occurred after she had consulted him as a patient. He stated that she had consulted him for a skin check in November 2001. She was in her early 20’s and told him she had been in a relationship with an older man. This suggested to the practitioner that she might be interested in a relationship with him.

He telephoned her one or two weeks after the consultation to invite her to have lunch with him with a view to a relationship that included sex.

The practitioner agreed that he had not informed Dr Nelson, his supervisor, that the receptionist had been a patient. He initially said that he could not recall if he had informed Dr Burkitt or Dr Ross of this incident. Subsequently he stated that he had not told them because he was ashamed of what he had done and it was over within one day.

He agreed that the conduct mirrored that which had taken place at Forestville notwithstanding that three years had passed and that he had been under treatment by Dr Ross and had frequently consulted Dr. Burkitt.


He stated that the approach to the receptionist had been made at a time when he was depressed and at a weak point because of difficulties in his then current relationship.

It had also occurred prior to the s 66 inquiry and at a time when he was not under supervision and he was thus not being monitored.

Dr Ross gave his evidence before this disclosure had been made by the practitioner. He stated that the practitioner believed in his own mind that no further misconduct would occur. If it did occur, he said, the practitioner would no longer be in a position to rationalise his conduct.

It is noted that the practitioner consulted with Dr Wright on 6 December 2001, at a time very close to his approach to the receptionist. Rather than disclosing problems with his then current relationship, the practitioner is reported to have told Dr Wright that his partner knew of his difficulties with the Commission and was supportive. Dr Wright also recorded that the plaintiff had informed him that as a result of his work with Dr Burkitt, he did not believe that he would offend again.

The practitioner in his affidavit gave the same assurance to the Tribunal.


FINDINGS/CONCLUSIONS

1. The misconduct of the practitioner was extremely serious. It occurred on many occasions and at times when his patients were particularly vulnerable. Notwithstanding his denials, the way in which the practitioner approached his patients had the hallmarks of serial, predatory conduct.

2. Although the practitioner may be genuinely contrite and remorseful concerning the situation in which he is now placed, the Tribunal does not share his confidence that he has been fully rehabilitated and that professional misconduct will not occur in future.

3. The Tribunal’s reasons for reaching this conclusion are:


(1) The practitioner has not been full and frank in his dealings with the Commission concerning the Complaint; in some circumstances he has been positively dishonest.

(2) As already stated, the circumstances of the practitioner’s misconduct were very serious. It occurred after he had gained his patients’ trust and confidence and in circumstances of relationship difficulties. These are the very circumstances where patients are entitled to have full faith and trust in their general practitioner.

(3) The practitioner continues with personality traits as described by Dr. Ross. It is apparent from the incident concerning the receptionist at the Town Hall Medical Centre that these traits have not yet been overcome.


PENALTY

1. 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.

2. In its decision in Director General of the Department of Health v Buttsworth 6 September 1991, p 29 the Tribunal noted that the following considerations applied to the determination of the appropriate penalty in cases of professional misconduct:

(1) the severity of the misconduct involved;
(2) whether admissions had been made, thus relieving the patients of the burden of giving evidence;
(3) the paramount consideration of the public and professional interest in the maintenance of appropriate standards;
(4) that the removal of the name of a practitioner from the Register:

(a) should not be done lightly;
(b) should be done for the protection of the public and the profession;
(c) is not a punitive measure; and
(d) has grave consequences for the practitioner concerned.


3. Taking these considerations into account together with the extent of the practitioner’s professional misconduct, the serious circumstances in which that conduct occurred and the evidence of personality traits which have not yet been remedied, the Tribunal rejects the submission that the paramount consideration of the protection of the interests of the public and the profession can be addressed by permitting the practitioner to continue to practise under supervision and upon the conditions imposed following the s 66 inquiry.

4. The Tribunal is comfortably satisfied by the evidence that the appropriate penalty requires the removal of the practitioner’s name from the Register.

DETERMINATION

1. The Tribunal finds the Complaint proved.

2. The Tribunal finds the practitioner guilty of professional misconduct.

ORDERS

1. The Tribunal orders that the name of the practitioner be removed from the Register of Medical Practitioners of New South Wales.

2. The Tribunal orders that an application for review of Order 1 may not be made until 2 years after 20 September 2002.

3. The practitioner is to pay the Commission’s costs of the inquiry.

4. The exhibits are returned.

5. The Tribunal publishes its reasons.

SIGNATURES of TRIBUNAL MEMBERS

_____________________________ _________________________
HER HONOUR JUDGE M SIDIS DR LINDSAY EDWARDS
Deputy Chairperson

____________________________ _________________________
DR PETER MORSE DR CATHERINE BERGLUND PhD