Legislation cited: ACT Civil and Administrative Tribunal Act 2008 s 39

Health Practitioner Regulation National Law (ACT) ss 3, 4, 156, 199, 202

Cases cited: Al-Naser v Medical Board of Australia [2019] ACAT 71

_Health Care Complaints Commission v Grec_h [2021] NSWCATOD 14

Hocking v Medical Board of Australia [2015] ACAT 22

I v Medical Board of Australia [2011] SAHPT 18

Kozanoglu v The Pharmacy Board of Australia [2012] VSCA 295

Reeve v Aqualast Pty Ltd [2012] FCA 679

List of

Texts/Papers cited: Medical Board of Australia, Good Medical Practice: a Code of Conduct for Doctors in Australia (October 2020)

Medicine, Poisons and Therapeutic Goods Controlled Medicine Prescribing Standards 2021 (No 1)

Medical Board of Australia, Guidelines: Sexual Boundaries in the Doctor-Patient Relationship (12 December 2018)

Therapeutic Guidelines, Addiction Medicine: Alcohol; Benzodiazepines, zolpidem and zopiclone (2013)

Therapeutic Guidelines, Pain and Analgesia: The role of analgesics in chronic pain (2020)

Therapeutic Guidelines, Psychotropic: Treatment resistant major depression in adults and young people (2021)

Date of Reasons for Decision: 13 September 2021

2. Pursuant to section 39 of the ACT Civil and Administrative Tribunal Act 2008:

Unless by their consent, publication of the names or any identifying details of the applicant's patients, including Patient SB, his mother and/or any evidence, medical records, photographs or other documents pertaining to the patient or his mother referred to in this proceeding is prohibited.

1. Dr Dielenberg (the practitioner) a medical practitioner with over 30 years experience, is appealing suspension of her registration to practise by the Medical Board of Australia (the Board). The Board took immediate action and suspended the practitioner's registration in April 2021 after receiving four notifications (or complaints) about the practitioner's treatment and management of a patient (Patient SB) with whom she was engaged in an intimate relationship. In addition to her alleged breaching of sexual boundaries, the Board was sufficiently concerned about the practitioner's prescribing of a high quantity of Schedule 4 and 8 medications for SB and her contact with another health service about SB to take this very serious action. The task for the Tribunal is to consider whether immediate action was reasonable in this case due to the serious risk raised by the practitioner's alleged conduct. The second task if this reasonable belief is formed, is whether the practitioner's registration should remain suspended, as pressed by the Board, or whether conditions on her registration would sufficiently protect the public, as submitted by the practitioner.

2. In these reasons a reference to the 'tribunal' or 'ACAT' refers to the ACT Civil and Administrative Tribunal generally and 'Tribunal' refers to the Members hearing this matter.

3. On 20 April 2021 the practitioner appealed the Board's decision of 8 April 2021 to suspend her registration to practise as a medical practitioner in Australia. The ground detailed in the application for the appeal is that "the protection of public health or safety did not require the suspension of the applicant's registration as a medical practitioner." The practitioner asked that the Board's decision be set aside and that costs be awarded in her favour.

4. The Tribunal heard the application for review on 19 August 2021. The only witness was the practitioner. The evidence lodged by both parties was tendered without objection. This included a statement from the practitioner and an expert opinion provided to the Board by Dr Gillian Singleton.

5. On 23 August 2021 in chambers the tribunal ordered pursuant to section 39 of the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act) that unless with consent, the publication of the name or any identifying details of patient SB and his mother and/or any evidence, medical records, photographs or other documents pertaining to the patient or his mother is prohibited.

6. After reserving its decision the Tribunal has formed a reasonable belief that because of the practitioner's conduct she poses a serious risk to persons and that it is necessary to take immediate action in order to protect public health and safety from that risk. This means that the practitioner's registration to practise as a medical practitioner remains suspended. The Tribunal has decided that pursuant to section 202 of the Health Practitioner Regulation National Law (ACT) the (National Law) that the Board's decision is confirmed.

7. In Hocking[1] the then General President of the tribunal detailed the provisions in the National Law in relation to immediate action and appeals, which the Tribunal sets out below (omitting footnotes):

12. Division 7 of Part 8 provides for 'immediate action'. Section 155 defines immediate action to mean suspending or imposing a condition on registration, accepting an undertaking or accepting the surrender of a registration. Section 156 empowers a National Board to take immediate action in relation to a registered health practitioner in specified circumstances. The circumstances that are relevant in this case are:

_(1) A National Board may take immediate action in relation to a registered health practitioner ...if - _

_(a) the National Board reasonably believes that - _

(i) because of the registered health practitioner's conduct, performance or health, the practitioner poses a serious risk to persons; and

(ii) it is necessary to take immediate action to protect public health or safety...

13. The criteria are different from those relevant to a tribunal's consideration of a referral of a matter relating to the practitioner's professional performance or conduct. Immediate action is intended to provide an immediate response to an identified risk for the purpose of safeguarding public health or safety pending further investigation of a notification and where appropriate, referral to a tribunal for consideration of action to address performance, conduct or impairment more generally. In this case, there has been an investigation of the matters raised in the Notification and a referral to the tribunal which is set down for hearing in coming weeks.

14. Section 199 of the National Law provides a right to appeal to the responsible tribunal against certain decisions. Although it is only section 199(1)(h) which is relevant in this matter, the section is set out in full so that the types of decisions that can be appealed to the tribunal are evident. The section provides:

_(1) A person who is the subject of any of the following decisions (an appellable decision) may appeal against the decision to the appropriate responsible tribunal for the appellable decision - _

(a) a decision by a National Board to refuse to register the person;

(b) a decision by a National Board to refuse to endorse the person's registration;

(c) a decision by a National Board to refuse to renew the person's registration;

(d) a decision by a National Board to refuse to renew the endorsement of the person's registration;

_(e) a decision by a National Board to impose or change a condition on a person's registration or the endorsement of the person's registration, other than - _

(i). a condition relating to the person's qualification for general registration in the health profession; and

(ii). a condition imposed by section 112 (3) (a);

(f) a decision by a National Board to refuse to change or remove a condition imposed on the person's registration or the endorsement of the person's registration;

(g) a decision by a National Board to refuse to change or revoke an undertaking given by the person to the Board;

(h) a decision by a National Board to suspend the person's registration;

(i) a decision by a panel to impose a condition on the person's registration;

(j) a decision by a health panel to suspend the person's registration;

(k) a decision by a performance and professional standards panel to reprimand the person.

15. It is worth noting that the decision to take immediate action is not an appellable decision. The appellable decision is the decision made on an immediate basis, in this case, the suspension of the applicant's registration.

8. Section 199(1)(h) of the National Law is the relevant provision allowing the appeal in this case. In conducting the review, the Tribunal is empowered by section 202 of the National Law to confirm or amend the original decision or to substitute another decision for the appellable decision.

9. Four notifications were lodged with the Australian Health Practitioner Regulation Agency (Ahpra) between 27 January 2021 and 10 February 2021 about the practitioner. The first[2] was lodged anonymously by a manager of health practitioners who provide care to patients at the ACT Police Regional Watch House through the Clinical Forensic Medical Services (CFMS). The notifier detailed that on 22 January 2021 the practitioner telephoned the on-call nurse with CFMS, identified herself as patient SB's GP and requested information regarding his mental health assessment and plan. This information was not provided to the practitioner. Two days later a second on-call nurse reported that the practitioner telephoned, again identifying herself as patient SB's GP. During this call, the notification detailed that the practitioner advised that she was with patient SB's family who were worried as they were unaware of his whereabouts and she asked whether patient SB had undergone a mental health review. When the information was not provided, the practitioner allegedly advised that she was unable to provide a requested medical report about patient SB without this information. The notifier also advised Ahpra that patient SB had informed members of the CFMS that: he had been in a relationship with the practitioner until approximately 2 January 2021; she was his GP and had taken a family violence order out against him; was prescribing him scheduled substances; and "stealing his meds". The notifier reported that patient SB was in custody and had significant mental health issues.

10. The second notification made on 28 January 2021[3] was from a named medical practitioner who reported that patient SB told him that the practitioner had been his treating doctor as well as his partner for 12 months and had prescribed him multiple Schedule 4 and Schedule 8 medications and psychotropics. The notification also detailed the practitioner's calls to ACT health services since patient SB's incarceration under the context of being his GP and requesting clinical information.

11. A third notification was lodged anonymously on 29 January 2021.[4] It detailed that after a "record review, audit" it was identified that the practitioner had been treating and prescribing scheduled medications for approximately 12 months to patient SB with whom she was in a romantic relationship. The notifier advised that the practitioner had admitted to some of the medications prescribed but had omitted others when asked about this.

12. Finally, a fourth notification was made on 10 February 2021 by an unnamed police officer who reported that patient SB had been arrested and was in custody as a result of a family violence order.[5] The officer reported that the practitioner had attended the police station with patient SB's mother and stated that she had been asked to write a report for court because she was patient SB's treating physician. When he later telephoned the practitioner, she allegedly sought information about a mental health assessment conducted on patient SB opining that he was unfit to be in custody and should be released. The officer contacted patient SB's mother who provided a copy of a text message sent by the practitioner stating that she would be giving evidence to the effect that patient SB's mother had supplied him with a bottle of vodka and two litres of wine prior to his arrest. The officer also noted that patient SB's mother advised that the practitioner had been living with her son for a year; was his GP; and had prescribed a large amount of medication.

13. The Board proposed on 29 March 2021 to take immediate action suspending the practitioner's registration. In addition to the four notifications summarised above, the Board had access to patient SB's clinical records from her practice, CFMS records, Services Australia reports for patient SB's medication and services rendered to him by the practitioner. On this date, the Board also referred the matter for investigation under the National Law and this process is continuing.

14. The practitioner responded to the Board's invitation to lodge a written submission to the proposal through her lawyers on 6 April 2021.

15. When the Board met again on 7 April 2021 it decided to take immediate action by suspending the practitioner's registration due to continuing concerns that the practitioner posed a serious risk to persons.

16. The issue for the Tribunal is the same as that considered by the Board when it took immediate action under section 156(1)(a) of the National Law on 7 April 2021, namely, does the Tribunal reasonably believe that:

(i) because of the practitioner's conduct, performance or health, she poses a serious risk to persons; and

(ii) it is necessary to take immediate action to protect public health or safety.

17. The Federal Court has provided some guidance on what constitutes 'reasonable belief', observing "While the notion of reasonable belief may set the threshold 'at quite a low level', there must be some tangible support that takes the existence of the alleged right beyond mere 'belief' or 'assertion'...".[6]

18. Only interim protection is envisaged when immediate action is taken. In Kozanoglu v Pharmacy Board of Australia,[7] the Victorian Court of Appeal said:

While the purpose of the immediate action provisions is the protection of the public ... only interim protection is envisaged. The practitioner's suitability to practice is then revisited, on all the material, before the panel or the responsible tribunal.[8] [after a hearing on the merits under Division 12]

19. Further, while a decision to suspend a practitioner's registration is made in the interests of public safety, "that safety should be secured with as little damage to the practitioner as is consistent with its maintenance."[9]

20. In exercising its functions the Tribunal must have regard to the National Law's objectives and guiding principles.[10] A key objective is that the national registration and accreditation scheme is:

to provide for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered.[11]

One of the three guiding principles of the national scheme is that:

restrictions on the practice of a health profession are to be imposed under the scheme only if it is necessary to ensure health services are provided safely and are of an appropriate quality.[12]

21. The following documents were marked as exhibits:

(a) A1 - Applicant's documents (index includes statement of the practitioner dated 25 June 2021, her Curriculum Vitae and various correspondence from the Board);

(b) R1- Statement of Reasons dated 11 May 2021 and T Documents;

(c) R2 - Report of Dr Gillian Singleton dated 13 July 2021;

(d) R3 - Briefing letter to Dr Singleton dated 11 June 2021.

22. Dr Singleton was not required for cross-examination and her report was tendered unchallenged.

23. The practitioner gave evidence and told the Tribunal that she commenced a sexual relationship with patient SB in December 2019 after they met online. At the time she was living in Sydney but returned to Canberra, where patient SB resided and she owned a property. Shortly after her return, patient SB moved into the practitioner's Canberra residence. She said their sexual relationship continued for approximately two months and that he stayed living in her property until he was arrested by police in January 2021.

24. Apart from writing an initial antibiotic script for a skin irritation in December 2019, the practitioner told the Tribunal that she began prescribing medication to patient SB as a result of his coercion.[13] The practitioner said that when she met patient SB and he moved into her residence she was unaware of his history of drug and alcohol use, violence and imprisonment. she described prescribing Oxycodone once, Norspam once and Endone once or twice only.[14]

25. Under cross-examination, the practitioner said that by the end of January 2020, it was clear to her that patient SB had a significant drinking issue due to the quantities of alcohol he was consuming, being a cask of wine a day and a bottle of vodka most days.[15] The practitioner described patient SB initially pleading with her for Tramadol due to back pain. She initially tried to resist this but she said that he was persistent and aggressive and so she prescribed this medication. Patient SB had told the practitioner that another GP had previously prescribed him with Diazepam and Oxycodone.[16]

26. The practitioner admitted that by early February 2020 she had reservations about her Schedule 4 and 8 prescribing but said that she was under duress and manipulation and patient SB was becoming more verbally aggressive.[17] She conceded that her personal relationship with patient SB also compromised her objectivity as a medical practitioner.[18] She told the Tribunal she did not seek assistance from police or professional colleagues at that time as she was too embarrassed.[19]

27. The practitioner admitted she was aware that she needed approval to prescribe Ritalin and that she had not obtained this.[20] She also admitted that she was aware approval was needed to prescribe Buprenorphine and failed to seek this too.[21] Of her prescribing of Diazepam, the practitioner told the Tribunal that she did not consider that it would reduce patient SB's pain as he claimed it would, but said that she was not in a position to disagree with him due to being verbally and physically coerced.[22] Later in her evidence the practitioner said that she should have resisted patient SB's demands for various medications.[23]

28. The practitioner said that her prescribing for patient SB ended when he was removed from her property by the police on 1 January 2021. When the Board's counsel took her to three entries in a Services Australia document covering her prescriptions for patient SB from 22 December 2019 to 14 January 2021,[24] she was unable to explain the three entries after the date he was arrested.

29. The practitioner was taken to her referrals to various specialists (after patient SB's motor vehicle accident in April 2020) and the absence of his history or her clinical assessment in briefing these health practitioners. She advised the Tribunal that patient SB had deliberately written off his car so he could claim compensation for his injuries. She told the Tribunal that if patient SB's compensation claim was jeopardised, through her detailing his pain and prescription history to his specialists, that she "would be in further trouble with him."[25] the practitioner added that while her briefing letters did not include details of patient SB's complex health issues, she told them eventually by telephone.[26]

30. On the issue of her contact with Justice Health, the practitioner told the Tribunal that she was unaware that she needed to declare she had been in a relationship with patient SB.[27] She conceded that it "probably was inappropriate" for her to have sought evidence of patient SB's mental health assessment in making the calls in January 2021 to CFMS.[28] The practitioner said her reason for doing so was as she felt sorry for patient SB.[29]

31. Towards the end of her evidence the practitioner conceded that her registration as a medical practitioner made her open to exploitation and that it was incumbent on her to notify others, such as professional colleagues, when she found herself in the situation which developed with patient SB.[30] The practitioner also agreed that she and patient SB were harmed by what occurred and the situation only came to a head when patient SB was forcibly removed from her home after he assaulted her.

32. The Tribunal drew the practitioner's attention to the fact that in 2009 she had been subject to an Impaired Registrants Review panel in NSW which resulted in her being able to practise with conditions on her registration. She was regularly reviewed by this panel and ultimately the conditions were removed. The practitioner was asked why she did not seek support this time. She replied that it was a combination of embarrassment that this situation with patient SB had developed in her own house and she had a fear of being judged.[31]

33. Finally, when asked by the Tribunal if she considered whether patient SB was selling the drugs she prescribed, the practitioner replied that she did not form this view at the time but now considers this was possible.[32]

34. Importantly, at numerous points in her cross-examination the practitioner was taken to various opinions expressed by Dr Singleton and asked if there was anything with which she disagreed. The practitioner did not dispute Dr Singleton's views of her prescribing, management, clinical documentation and relationship with patient SB, between December 2019 and February 2020.

35. In examining the practitioner's extensive prescribing to patient SB, Dr Singleton focused on the medications she opined were of the greatest concern. These included Ritalin, a drug of dependency and a controlled medicine in the ACT which must be approved by a psychiatrist, neurologist or paediatrician. Dr Singleton opined that the practitioner's prescribing of 450 Ritalin tablets in 13 days to patient SB, with whom she was in an intimate relationship and with evidence of him being drug dependent, without seeking approval or providing clinical documentation for the prescribing, was highly inappropriate and of significant concern.[33]

36. Dr Singleton also referred to section 4.15 of Good Medical Practice: a Code of Conduct for Doctors in Australia (the Code) that provision of care to close friends, colleagues and family members is inappropriate because of the lack of objectivity, possible discontinuity of care and risks to the patient and doctor. In particular medical practitioners must not prescribe Schedule 8, psychotropic medication and/or drugs of dependence to anyone with whom they have a close personal relationship.[34] Dr Singleton concluded that the practitioner's prescriptions for Ritalin were not clinically justified, not in reasonable quantities, not in accordance with controlled medicines requirements and potentially exposed patient SB to harm.[35]

37. Of the practitioner's prescription of opioids such as Tramadol, Panadeine Forte, Buprenorphine and Oxycodone, Dr Singleton also referred to the lack of clinical justification, the unreasonable quantities and being contrary to safe prescribing as outlined by the Therapeutic Goods Guidelines.[36] In the case of Buprenorphine, she opined that the practitioner's prescription was contrary to the controlled standards and again the combination and dosage of the entirety of the medications potentially exposed patient SB to harm.[37]

38. Of the practitioner's benzodiazepine prescriptions, Dr Singleton opined that the practitioner had acted substantially below the accepted standard for a medical practitioner, particularly as the medication was not clinically justified, was not in reasonable quantities and potentially exposed patient SB to significant harm. Dr Singleton noted that the number and frequency of scripts provided for several dates between August and October 2020 allowed patient SB to access up to 250mg per day of Diazepam which she opined was evidence of highly irresponsible and inappropriate prescribing.[38] Similarly, with Nortriptyline, Dr Singleton observed that the practitioner's prescribing at high frequency enabled patient SB to access up to 1,250mg of the medication per day. Patient SB attended a variety of pharmacies to have these scripts dispensed. Dr Singleton opined that the prescriptions provided by the practitioner were substantially below the accepted standard for a medical practitioner and were not clinically justified, not in reasonable quantities and potentially exposed patient SB to significant harm.[39]

39. Of the practitioner's clinical records, Dr Singleton noted the absence of clinical assessment of patient SB fell far below the accepted standard of a medical practitioner and that there were also several consultations billed to Medicare without any documentation of what occurred. Further, Dr Singleton noted that in referring patient SB to other specialists, as a result of injuries he incurred in a motor vehicle accident in April 2020, the practitioner did not provide a full list of medications prescribed, particularly opioids and benzodiazepines and did not mention his alcohol dependence. She opined that the failure to provide this detail could have posed a significant risk to patient SB's health due to these specialists not having a full history when diagnosing and treating patient SB, which included surgery.[40]

40. Finally, in terms of the practitioner's intimate relationship with patient SB, while she was prescribing him the medications examined above, Dr Singleton acknowledged the practitioner's admission of the relationship but expressed concern about the length of time the practitioner provided care to patient SB, her billing of Medicare, her referral to specialists and for investigations, her providing a health summary to Justice Health and her excessive prescribing of a variety of medication.

41. Dr Singleton acknowledged the practitioner's explanation that she provided the prescriptions under duress, however expressed significant concerns about the practitioner's judgement and safety to practise. She opined that the practitioner's conduct fell substantially below the accepted standard required of medical practitioners.[41]

42. The practitioner's counsel stressed that in this case the Tribunal was examining an interim decision of the Board. As such, the Tribunal was unable to test the totality of the evidence given the Board's investigation was continuing. Further, a referral had not yet been made under the National Law to the tribunal, in the event that the Board decides the practitioner has engaged in professional misconduct.

43. In such circumstances, to maintain suspension of the practitioner's registration is draconian. Rather, conditions on her registration to restrict her from handling or prescribing Schedule 4 and Schedule 8 drugs was the proportionate response to the allegations made. The practitioner accepted her prescribing to patient SB was highly inappropriate.

44. It was also submitted that the practitioner's conduct was only in relation to one patient, patient SB and there is a real issue as to whether there was a doctor/patient relationship prior to the commencement of their personal relationship. In terms of the practitioner's contact with CFMS and ACT Police, it was pressed that her reasons for so doing could only be tested at a full hearing.

45. The Board's counsel submitted that there were four grounds supporting the taking of immediate action and suspending the practitioner's registration. These were:

(a) the practitioner's breaching of sexual boundaries by being in a relationship with patient SB and being his treating medical practitioner;

(b) prescribing excessive quantities of Schedule 4 and 8 medications between December 2019 and January 2021 including, Oxycodone, Diazepam, Tramadol, Panadeine Forte and Buprenorphine patches;[42]

(c) inappropriately using her position as a medical practitioner to seek clinical information about patient SB from CFMS, following his admission after a serious domestic violence incident. Further, repeating this conduct with ACT police, regarding a mental health assessment undertaken of patient SB and additionally, seeking his release from police custody by instructing the city police that patient SB was not fit to be held in custody; and

46. It was further submitted that from the four notifications, patient SB's clinical records, Services Australia data on the practitioner's prescribing and attendances on and the provisions in the Code and the Guidelines: Sexual boundaries in the doctor-patient relationship (the Guidelines), the Board formed a reasonable belief that the practitioner had demonstrated significant departures from both ethical and professional conduct. She had also shown a failure to provide good patient care and posed a serious risk to persons.

47. The Board's counsel noted that in determining whether it has a reasonable belief that due to her conduct, the practitioner poses a serious risk to persons, such that it is necessary to take immediate action, the Tribunal had the evidence before the Board, the new material filed, including Dr Singleton's report and the evidence given during the hearing.

48. As noted by the South Australian Health Practitioner Tribunal in I v Medical Board of Australia,[43] "[t]he Tribunal approaches the matter on the basis that an immediate action order does not entail a detailed enquiry by the Board or by the Tribunal. It requires action on an urgent basis because of the need to protect the public."[44]

49. In this case, the evidence from Services Australia records, the practitioner's clinical notes, her oral testimony and Dr Singleton's expert report left the Tribunal in no doubt that immediate action must be taken to protect the public in this case. The quantity and combination of the medication prescribed by the practitioner did not only put patient SB and herself at great risk. The practitioner also told the Tribunal that patient SB was incarcerated due violence against his elderly mother. While the full circumstances of what led to this alleged violence may be tested if the practitioner is ultimately referred to the tribunal for professional misconduct, this Tribunal notes the evidence before it of patient SB's extensive prescriptions for a wide range of drugs and the practitioner's testimony about his alcoholism. While the practitioner disagreed, when questioned by the Board's counsel, that patient SB's mother was harmed due to the medication patient SB was given, she conceded that the various medications she had prescribed may have potentially contributed to any psychosis.[45]

50. Further, the practitioner testified that she had come to the view that patient SB may have been selling some of the extensive medication she had prescribed. Clearly, this put third parties at significant risk. As set out in the Exhibit R1, a number of those medications were controlled and could only be prescribed with the relevant approval and/or by a specialist medical practitioner such as a psychiatrist or neurologist.

51. In addition to the practitioner's prescribing in this case, the Tribunal notes the clear boundary violation of her providing medical services for someone with whom she was in an intimate relationship. This clearly breaches the Code and Guidelines. Section 4.15 of the Code, for example, includes prohibiting prescribing Schedule 8 medication and/or drugs of dependence to anyone with whom they have a close personal relationship.

there is no place for sex in the doctor-patient relationship, either in the guise of a consensual sexual relationship, or in the form of sexualized comments or behaviour, or indecent or sexual assault. If there is a possibility that sexual boundaries could be breached, or that the doctor may not remain objective, the doctor should transfer the patient's care to another doctor.

53. There are clear reasons why this is the case. As detailed in the Guidelines:

[t]he doctor patient relationship is inherently unequal. The patient is often vulnerable and in some clinical situations may depend emotionally on the doctor. To receive healthcare, patients are required to reveal information that they would not reveal to anyone else and may need to allow a doctor to conduct a physical examination. A breach of sexual boundaries in the doctor patient relationship exploits this power imbalance.

54. It is not material that the doctor-patient relationship commenced after the practitioner's intimate relationship with patient SB, as her counsel submitted. In the recent NSW decision of _Health Care Complaints Commission v Grec_h[46] the respondent had begun an intimate relationship with another prior to her becoming his patient. The members relevantly stated:

the seriousness of this conduct is not alleviated by the fact that Patient C was his girlfriend before she became his patient or because she put pressure on him to treat her... while we can understand that it would have been difficult to resist her apparently manipulative behaviour, it was his responsibility, as a doctor, to do so. Patient C had a serious mental health condition and addiction issues. Dr Grech was mistaken to think that it was in her interests for him to treat her. His initial attempts to explain and minimise his behaviour show a lack of insight on his part.

55. It is the practitioner's evidence that she was being coerced verbally and physically by patient SB to prescribe him the quantity and range of medication she did over a 12 month period. In her written statement she also acknowledged that she should have terminated the relationship with patient SB in early 2020 but did not, as she believed she could "save" him. Such sentiments highlighted to the Tribunal why the breach of boundaries in this case was so harmful for both patient SB and the practitioner and why the Code and Guidelines prohibit a medical practitioner treating someone with whom they have a close relationship. The significant lack of judgement shown and failure to seek support to end the treating relationship, is why the Tribunal considers the practitioner is a serious risk to others beyond patient SB.

56. The practitioner's communication with CFMS and the police which led to three of the notifications lodged, indicated at best, another serious lack of judgement on her part and at worst, a deliberate attempt to mislead others involved in managing and treating patient SB after his arrest. In these phone calls it is detailed that the practitioner described herself as Patient SB's GP, tried to obtain information on his diagnosis and treatment and failed to refer to their domestic relationship. Whether poor judgement or deliberate misrepresentation, the practitioner's contact with these third parties, when considered in conjunction with her prescribing for patient SB and their intimate relationship, has led the Tribunal to form a reasonable view that she is a serious risk to others beyond patient SB.

57. While the practitioner's counsel said in verbal submissions that it was difficult to assess the terms of the practitioner's contact with these other health providers, based on the notifications, the Tribunal notes the detail the notifications contained, particularly in the two duty nurses' file notes on 22 and 24 January 2021. In any event, the nature of an appeal from an immediate action decision requires only that the tribunal forms a reasonable belief based on the evidence before it. As reasoned by this tribunal in Al-Naser v Medical Board of Australia:[47]

an investigation into the practitioner arising from the notification[s] is ongoing, [and] if that results in a disciplinary hearing, that will be a separate proceeding subject to a different standard of proof.

58. The Tribunal considers that suspension is the appropriate form of immediate action in this case. It examined whether conditions on the practitioner's registration, as she proposed, would provide sufficient protection to the public. It is very aware of the significant impact on her and on the fact that its action should be the minimum regulatory force to adequately protect the public.

59. However, it does not consider that conditions would provide this protection. The Tribunal notes the length of time the practitioner continued to treat and prescribe to patient SB while he was living in her house. As submitted by the Board, this was not a momentary lapse of judgement. She failed to comply with the Code and Guidelines for an extended period after a career of more than 30 years of practising as a medical practitioner. She was not a junior practitioner and had experience treating a variety of patients, including those with drug dependence, in the practices in which she had worked.

60. The practitioner's significant over prescribing and combination of medication in this case, coupled with her evidence to explain why she did not fully brief other medical practitioners to whom she referred patient SB, of his medication, gave the Tribunal significant concern about her judgement and safety to practise. More generally, her poor clinical records in breach of section 10.5 of the Code also led to patient SB being in danger if another health practitioner was involved in his care, given the inadequate or non-existent documenting of his history, diagnosis and treatment.

61. Further, the practitioner's failure to seek help from colleagues, other professional organisations, regulatory bodies, such as the Board, or the police, given her evidence of patient SB's coercion towards her, has led to the view that suspension is appropriate as the practitioner has demonstrated a significant lack of judgement. Her explanation, given twice during her evidence, of being too embarrassed to seek this help, troubled the Tribunal and contributed to the view that she poses a significant risk to others.

62. The Tribunal additionally considers that the duress the practitioner detailed she was under from patient SB does not explain why she had no medical records for the first six months of his treatment and why the records which were produced are so poor. It also fails to explain her inappropriate contact with CFMS and the police after he was removed from her home. It further does not explain why there are records from Service Australia which have three prescriptions being issued by the practitioner after patient SB was removed from her home and on her evidence, had no contact with him. Similarly, it does not explain her referring a practitioner to another specialist 9 January 2021 after his arrest.

63. Importantly, no evidence has been presented to give the Tribunal some confidence that the practitioner has taken steps to try to remedy the issues of concern. These include the inappropriateness of having a relationship with a patient, her prescribing to him, her poor clinical records, her inappropriate contact with CFMS and the police after his arrest and failure to seek help in increasingly dangerous professional and personal circumstances. The Tribunal notes and acknowledges the practitioner's response to a question from the Board that she is now under psychiatric care. However, it was not presented with any evidence of how this treatment may be assisting her in ensuring that she can practise safely in the future.

64. The totality of these facts lead the Tribunal to regrettably conclude that suspension of the practitioner's registration is the minimum regulatory action it can take to protect the public at that time.

[1] [2015] ACAT 22

[6] Reeve v Aqualast Pty Ltd [2012] FCA 679 at [65(g)]

[7] [2012] VSCA 295

[8] [2012] VSCA 295 at [107]

[9] Kozanoglu v Pharmacy Board of Australia [2012] VSCA 295 at [126]

[13] Transcript of proceedings 19 August 2021 page 7, line 36

[14] Transcript of proceedings 19 August 2021 page 8, line 4

[15] Transcript of proceedings 19 August 2021 page 12, line 6

[16] Transcript of proceedings 19 August 2021 page 14, line 2

[17] Transcript of proceedings 19 August 2021 page 14, line 31

[18] Transcript of proceedings 19 August 2021 page 15, line 16

[19] Transcript of proceedings 19 August 2021 page 16, line 1

[20] Transcript of proceedings 19 August 2021 page 27, line 44

[21] Transcript of proceedings 19 August 2021 page 28, line 36

[22] Transcript of proceedings 19 August 2021 page 31, line 41

[23] Transcript of proceedings 19 August 2021 page 33, line 36

[25] Transcript of proceedings 19 August 2021 page 39, line 10

[26] Transcript of proceedings 19 August 2021 page 39, line 34

[27] Transcript of proceedings 19 August 2021 page 48, line 25

[28] Transcript of proceedings 19 August 2021 page 51, line 7

[29] Transcript of proceedings 19 August 2021 page 52, line 4

[30] Transcript of proceedings 19 August 2021 page 53, line 44

[31] Transcript of proceedings 19 August 2021 page 58, line 10

[32] Transcript of proceedings 19 August 2021 page 60, line 36

[36] Therapeutic Guidelines, Pain and Analgesia: The role of analgesics in chronic pain (2020); Therapeutic Guidelines, Addiction Medicine: Alcohol; Benzodiazepines, zolpidem and zopiclone (2013); Therapeutic Guidelines, Psychotropic: Treatment resistant major depression in adults and young people (2021)

[42] Medicine, Poisons and Therapeutic Goods Controlled Medicine Prescribing Standards 2021 (No 1)

[43] I v Medical Board of Australia [2011] SAHPT 18

[44] [2011] SAHPT 18 at [26]

[45] Transcript of proceedings 19 August 2021 page 54, line 41

[46] [2021] NSWCATOD 14 at [186]

[47] [2019] ACAT 71 at [31]