HCCC v De Saxe

NCAT Occupational|2018-02-28|Before: Dr J

e Saxe (Respondent) Representation: Counsel: Mr Fernandez (Applicant) Mr Barnes (Respondent

Solicitors: Health Care Complaints Commission (Applicant) TressCox Lawyers (Respondent) File Number(s): 2016/00378716 (1620154); 2017/00089410 Publication restriction: Under cl 7 of Schedule 5D of the Health Practitioner Regulation National Law publication of the name of the patient set out in the Schedule to the complaint is prohibited except to the Medical Council of NSW.

REASONS FOR DECISION

The Health Care Complaints Commission ("HCCC") complained that Dr Ian Morris De Saxe ("the practitioner"), a medical practitioner registered under the provisions of the Health Practitioner Regulation National Law (NSW) ("the National Law") had committed breaches of the National Law. Such complaint was considered by the Tribunal in its Decision made on 12 September 2017: see Health Care Complaints Commission v De Saxe [2017] NSWCATOD 135. The Tribunal found that breaches of the National Law had occurred as alleged and made findings of professional misconduct against the practitioner. The Tribunal also ordered that the Practitioner be suspended from practice forthwith pursuant to s 165L(3)(c) of the National Law.

FACTS

For convenience, the Tribunal will state the relevant summary facts. 1. The Tribunal found that the practitioner engaged in inappropriate sexual conduct with patient A. Such patient was being treated by the practitioner in respect of polysubstance abuse, anxiety, depression and symptoms of psychosis which were possibly drug induced. The consultations commenced in the middle of 2013. Patient A disclosed to another medical practitioner that the practitioner had been sexually inappropriate with him at The Rocks practice of the practitioner in that the practitioner engaged in mutual masturbation with patient A on two occasions and engaged in penetrative sexual intercourse with patient A on one occasion. 2. Further, the practitioner prescribed Methadone/Physeptone, a Schedule 8 drug of addiction to the patient on agreed dates and in agreed quantities set out in the schedule to the complaint which did not accord with the recognised therapeutic standard for the appropriate treatment in the circumstances. The patient was not the subject of a treatment plan and the practitioner was not an accredited NSW OTP prescriber and accordingly held no authority to prescribe such drugs. 3. The practitioner prescribed patient A other drugs in similar circumstances, namely Alprazolam and Dexamphetamine. The records of such treatment were not maintained. 4. Patient B, a 27-year-old male was referred to the practitioner for an opinion and management of alcoholism. He also had a history of major depression and the practitioner became his treating psychiatrist. 5. Patient B first attended the practitioner on 15 July 2011 and thereafter nine consultations took place until 11 November 2011. During one consultation, the practitioner breached his professional boundaries with patient B in that he massaged patient B's legs and asked patient B words the effect: "Do you want me to go any higher?". The practitioner acknowledged that he was sexually attracted to patient B. Detailed records and assessment of patient B were not maintained. 6. The practitioner treated patient C whilst he was under his care at the Mosman Private Hospital between 16 August 2010 and 15 September 2010. The patient was 36 years of age at the time and was admitted due to exacerbation of his bipolar and schizoaffective disorder resulting from pending court proceedings against the patient. The patient was a voluntary patient for treatment of anxiety and suicidal thoughts. 7. The practitioner consulted patient C on at least six occasions between 17 August 2010 and 10 September 2010. The practitioner did not communicate with the patient's former treating psychiatrists or psychologists; nor put a treatment plan in place. Further, the Tribunal found as a fact that the practitioner engaged in inappropriate discussion concerning the patient's sexuality and desires and made statements to the effect that sexual conduct with under-aged children was "okay". 8. The Tribunal found, but the practitioner claimed to have no recollection, that he looked into the patient's eyes whilst the patient was talking about his sexuality and invited the patient to engage in a sexual act with him by saying to the patient "suck my cock". 9. The Tribunal found that the patient's version of events was correct in respect of the words used by the practitioner to the patient concerning the writing of a report that was required to be used in pending court proceedings involving the patient. The Tribunal also found that the practitioner stated words the effect that he was willing to lie for the patient in respect of the report. 10. The practitioner failed to keep adequate records of his treatment for patient C. The practitioner failed to prepare a comprehensive admissions assessment and treatment plan; to record sufficient corroborative information from other mental health practitioners; to record specific information concerning treatment during admission and to record sufficient detail in the progress notes and discharge summary. 11. The Tribunal also found that between 7 April 2010 and 28 October 2014 the practitioner inappropriately self-prescribed medication including Schedule 4D prescribed restricted substances.

THE EVIDENCE

At this hearing the Tribunal heard evidence from the practitioner, who was extensively cross-examined, and from his treating psychiatrist, Dr Michael Diamond, who was also extensively cross-examined.

The Practitioner

The practitioner was questioned concerning his interest in young male persons. The thrust of the cross-examination suggested that the practitioner was not being entirely frank with the Tribunal in his evidence in respect of the Tribunal's finding concerning conduct found to have been perpetrated upon patient C. The practitioner stated that he had no recollection of such events. It was suggested, on frequent occasions, that he did have a recollection of the events but was not prepared to acknowledge this conduct. The practitioner refuted the suggestion that he was deliberately avoiding acknowledgment of his conduct in respect of patient C, and steadfastly maintained his lack of recollection. After the Tribunal's decision, he still referred to conduct with patient C that "had apparently occurred".
The practitioner asserted that he had now an insight into his conduct. It was emphasised that the conduct occurred at a time when he was suffering from feelings of isolation, had suffered himself from a suspected illness, namely cancer, and that his mother, whom he had cared for all his life, had passed away. Accordingly, the practitioner maintained that the circumstances of his misconduct occurred at a time when he was very vulnerable.
The practitioner stated that he intended to continue to see Dr Diamond, who has helped him significantly. The practitioner stated that if he felt there was a risk of any reoffending, he would refer any patient to another practitioner or obtain a supervisor. The practitioner requested that the suspension imposed upon him be lifted and that he be allowed to practise undertaking medico legal assessments only as the Medical Council of NSW had permitted.
In cross-examination it was put to the practitioner that his conduct, at least up to the time of the first hearing, was one that denied the conduct with patient C. However, his denials later were reduced to an inability to recollect such occasions. It was put to him that he had told Dr Diamond, prior to the first hearing, that he denied such conduct and that Dr Diamond had accepted "his persistent denial of any boundary crossing that is alleged to have occurred". However, the practitioner maintained his denial of any recollection until he read a report of Dr O'Dea, who made the original complaint. The practitioner said he recalled patient C, however, as at June 2017, the practitioner was still maintaining in his instructions to Dr Diamond that the act did not happen.
Other questions were put to the practitioner concerning the vulnerability of patient A. The practitioner acknowledged that he abused his power as a psychiatrist; that patient A was young and vulnerable; that he knew it was wrong; and that the conduct was carried out for his sexual gratification only. However, with respect to patient C, the practitioner stated that he "didn't realise how vulnerable he was". The practitioner acknowledged, however, that he was sexually interested in patient C.
The practitioner acknowledged that he was attracted to young men and that he had moved his practice away from "the sort of risky-type". He said: The only types of patients that would worry me would be, sort of, young males…
Accordingly, the practitioner acknowledged that the risk remained but stated that, as a result of his treatment with Dr Diamond, he would be extremely alert to the need to control boundaries. He stated that he would need to protect himself from "such intense relationships".
In respect of patient B, the practitioner acknowledged that during the 5 month period when he was treating that patient, he wanted to have sexual contact with him.
The practitioner stated that during his period of suspension, he had undertaken a course, namely, Teaching English as a Second Language (TESL). He stated that he wished to do the course and to teach English to students as it would be "helpful to be able to test" his boundaries around students. He stated that being around young males was a "potential risk". However, he added "but never a significant risk".
The practitioner readily acknowledged that his conduct was wrongful in relation to Patients A and B and, in retrospect, with patient C, however, he stated that "my defences are back together again…". The practitioner stated that he had also seen Ms K. Nelson in 2005, a treating psychologist, but that he had not disclosed his true desires; rather, he had discussed "the issue of boundaries".
The practitioner was questioned at length concerning evidence he provided in Tribunal proceedings involving another medical practitioner, Dr Litchfield. In a report which was provided to the Tribunal on 9 September 2011 in such proceedings, the Practitioner had stated as follows: The goal of a psychoanalytic therapy, in contrast to a specifically purely supportive or cognitive psychotherapy approach, is the development of a deeper or more intense relationship between the patient and the therapist. A specific aspect is to encourage, to some extent, a degree of dependency on the therapist through regression of the patient. By contrast, a supportive therapy would have the stated aim of encouraging independence from the outset.
The transcript of the hearing in those proceedings dated 26 April 2012 contains an answer given by the practitioner as follows: Mr Litchfield's difficulty with boundaries and lack of empathy for others has particularly became [sic] apparent in the transference relationship with myself.
It was put to the practitioner that he had demonstrated thereby an acute awareness of the boundaries, yet he violated them. Further, his treatment involves the risk of boundary violations with a patient.
The practitioner was also cross-examined concerning his attitude to sex between adults and post-pubertal males, and a statement which he had made to the effect that provided a male has gone through puberty, such a relationship "should be okay". The practitioner saw nothing untoward about such conduct, however, he later stated that sexual relations between adults and boys under 16 were "repulsive".

Dr Michael Diamond

Dr Diamond testified that he had first encountered the practitioner in about 1990 when the practitioner was having difficulty passing through his Registrar years. Dr Diamond saw the practitioner when he was a Registrar in 2002 and had seen him again between 2010 and 2011, between February and March 2012 and between June and August 2014. Dr Diamond stated that the practitioner was moving out of a small practice to a broad range of patients between 2010 and 2012, and that he was not entirely skilled for such a change.
Dr Diamond referred to the disruption that occurred in the practitioner's life, namely his relocation from South Africa to Australia where he had no peers in his practice and his move into a group practice where he suffered isolation because he was not in the hospital environment where he was exposed to a wider range of cohorts. Further, there was dysfunction in his family because his parents had an unharmonious relationship; his father left the practitioner's mother to adopt a homosexual lifestyle; the practitioner thereafter had no father figure and felt rejected by the father, and there was intra-sibling rivalry. The practitioner was the sole person who had the care of his mother.
Dr Diamond considered that the practitioner was not predatory, but rather his desire to assist his patients had contributed to his conduct. Further, Dr Diamond expressed the firm opinion that the practitioner's offending behaviour related to a particular time frame of great personal difficulty.
Dr Diamond provided reports dated 19 June 2017 and 18 October 2017. He restated that in his opinion, the practitioner's isolation was part responsible for his conduct. Dr Diamond said that there were certain reassuring factors which he found, namely, the practitioner's ability to deal now with his sexuality issues.
Dr Diamond was cross-examined, particularly in relation to the practitioner's persistent denials of any boundary crossing which Dr Diamond had referred to in his report of 18 October 2017. Dr Diamond considered that the practitioner should remain registered with conditions that limit his practice only to undertaking medico-legal assessments. Dr Diamond acknowledged that he could not guarantee that the practitioner could not reoffend. However, he observed in his report of 18 October 2017 that the practitioner was "working safely in compliance with his existing conditions up until the time that the Tribunal imposed an interim suspension upon Dr De Saxe's registration".
The report concludes: I note that Dr De Saxe's offending conduct occurred in a cluster at a time when he was susceptible to vulnerabilities that have been described to the Tribunal. I am aware of the significant changes in Dr De Saxe's circumstances and am aware of the progress that he has made in the course of intensive therapy over the period I have seen in more recent times.

Associate Professor Michael Robertson

Professor Robertson has provided a report dated 24 October 2017. He states that he became aware of the practitioner's conduct at the outset of his supervision relationship with Dr De Saxe. He reported that the practitioner had always been conscientious in his participation in the supervision process and that the quality of his medico-legal assessments was not of concern. He further commented that he did not have, at any point, substantive concerns about any aspect of the practitioner's professional conduct in his medico-legal assessments. He concludes: As such, my view is that, at least in regard to Dr De Saxe's participation in the supervision of his medico-legal work, I was satisfied that he engaged in the process in good faith and appeared to abide all of the requirements of his restricted practice at that time.

Dr Adrian Keller

Dr Keller, consultant psychiatrist, has provided reports dated 17 February 2017, 24 May 2017 and 12 September 2017. The last-mentioned report was provided for the Medical Council of NSW. In that report Dr Keller states that the practitioner had been fully compliant with all of the conditions of his registration since the previous review.

Medical Council of New South Wales

The Tribunal has been provided with two reports provided to the Medical Council of New South Wales by Dr Susan Messner and Mr Robert Kelly. The first interview with such representatives was held on 12 December 2016 and the latter was 30 June 2017. The reports commented on conditions that had been imposed by the Medical Council pursuant to s 150 of the National Law following the convening of proceedings on 5 May 2015. Subsequent proceedings were convened on 15 March 2016. Numerous conditions had been imposed on the practitioner's continuing practice which essentially limited the practitioner's practice to one of conducting medico-legal assessments in accordance with the Medical Council's "Guidelines for Medico-Legal Consultations and Examinations" and the RANZCP's "Ethical Guidelines for Independent Medical Examination and Report Preparation by Psychiatrists". In summary, the reviewers recommended on 12 December 2016 and on 30 June 2017 that there be no change to the practitioner's conditions.

Professor Garry Walter AM

Professor Walter in his report dated 25 October 2017 stated that he had read the Tribunal Decision dated 12 September 2017 relating to the Practitioner. He stated that his previous reference dated 23 October 2016 was provided effectively in ignorance of the new material that had come to light during the Tribunal hearing. Professor Walter regarded the conduct, collectively, as most serious transgressions. He stated: I am hopeful that Dr De Saxe is remorseful about the myriad behaviours that occurred, is able to recognise their detrimental impact on patient health and welfare, and acknowledges that the behaviours constitute a serious breach of professional standards.

Dr Leah Kavanagh

Dr Kavanagh of the Tasmanian Health Service has provided a report dated 19 October 2017 which confirmed that she had read the Tribunal's findings. She commented that the documentation was of a "particularly disturbing nature, given that it does not reflect my perception of Dr De Saxe which, as per my previous character reference letter, is that of a sensitive, caring, reliable and dedicated man who is passionate about his work". Her report continues: From my previous interactions with Dr De Saxe, I find it difficult and distressing to comprehend that he may have acted in such an unprofessional manner, which in my opinion is completely unacceptable for a Medical Practitioner. Despite the above, I do not wish to change my original character reference, which was based on my interactions with Dr De Saxe, which were always of a cordial and respectful nature. I must emphasise that, in my interactions with Dr De Saxe, there has never been any evidence to indicate that he abused his position as a Medical Practitioner.

SUBMISSIONS

Both parties provided extensive written and oral submissions.

Applicant's Submissions

The applicant submits that the practitioner's registration should be cancelled because of the seriousness of his conduct; the limited, if any, insight into his own conduct and into the wrongfulness of his conduct; the need in the protective role of the Tribunal to deter others from similar conduct.
The applicant submits that whilst the practitioner wishes to conduct medico-legal assessments, such is not a reason for him to be registered. The applicant relies upon an extract from the decision of the NSW Court of Appeal in Lucire v Health Care Complaints Commission [2011] NSWCA 99 at [73]-[75] which is set out in full hereunder.
Accordingly, the applicant seeks orders that the practitioner's registration be cancelled pursuant to s 149C(1)(c) of the National Law; that the practitioner may not be able to apply for review of the cancellation order for a period of 10 years pursuant to s149C(7); that pursuant to s 149C(5), the practitioner be prohibited from providing any health services as defined in s.4 of the Health Care Complaints Act 1993 (NSW) on either paid or voluntary basis, whether provided as a public or private service, until such time as he brings an application for review and is registered as a medical practitioner. The applicant also seeks costs.

Respondent's Submissions

The practitioner relies upon the expert evidence provided by Dr Michael Diamond and on Dr Diamond's conclusions that the risk of reoffending, whilst it cannot be excluded, must be considered in light of the fact that the events of misconduct occurred in an isolated time frame and that the practitioner now has an acute awareness of his obligations.
The practitioner also submits that he has admitted his inappropriate conduct, which resulted from personal vulnerabilities; that he has developed insight into his behaviour and expressed genuine remorse and contrition which is referred to by Dr Diamond. Further, it is submitted that the Tribunal would be reasonably satisfied that the practitioner does not constitute a danger to patients if he was allowed to practise subject to the conditions in force prior to his most recent suspension. Such a course is supported by Dr Diamond. The practitioner notes that the applicant, while it seeks a cancellation order, does not refer to all the reports of Dr Diamond and has not had the practitioner examined by any psychiatric expert.
Lastly, it is submitted that the order sought by the applicant is draconian in nature. Reference is made to the case of HCCC v Dr Tan (No 2) [2017] NSWCATOD 107 in which the HCCC sought a period of 5-10 years' suspension but in fact the Tribunal ordered a period of 5 years, noting that the practitioner had been diagnosed with various disorders. There is no instance in this case of a long-term personality disorder existing in the practitioner.

CONSIDERATION

The jurisdiction exercised by the Tribunal is protective. Section 3A of the National Law requires that the "protection of the health and safety of the public must be the paramount consideration" when considering an application to practise medicine. Inherent in such a requirement is that the applicant must be considered to be a "fit and proper person" to practise. In Australian Broadcasting Tribunal v Bond (1990) 94 ALR 11 at [56] (Toohey and Gaudron JJ), when speaking of the risk of a possible recurrence of a failure to observe the standards, said: The question may be whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur.
The decision stated that there may be sufficient ground to make a finding that a person "is not fit and proper to undertake the activities in question".
For other examples, confirming the protective nature of the jurisdiction, see for example Health Care Complaints Commission v Do [2014] NSWCA 307 at [35] where Meagher JA said inter alia: It includes protecting the public from the similar misconduct or incompetence of other practitioners and upholding public confidence in the standards of the profession. That objective is achieved by setting and maintaining those standards and, where appropriate, by cancelling the registration of practitioners who are not competent or otherwise not fit to practise…
Unsatisfactory professional conduct of a practitioner can extend to professional misconduct, as such term was considered by the NSW Court of Appeal in Chen v Health Care Complaints Commission [2017] NSWCA 186, especially at [19]-[20], [23], and [75]. See also Health Care Complaints Commission v Karalasingham [2007] NSWCA 267; Sabag v Health Care Complaints Commission [2001] NSWCA 411 at [42].
The Medical Tribunal in Health Care Complaints Commission v Holmes [2010] NSWMT 19 (14 December 2010) considered the instance of sexual activity between a medical practitioner and a patient. The Tribunal referred to the NSW Medical Board Policy Statement entitled "Medical Practitioners and Sexual Misconduct" dated 27 October 1995, which 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 on a doctor/patient relationship, evidence of exploitation, the duration of the professional relationship and the nature of the services provided.
In Holmes the Tribunal (at [33]) referred to the fact that a practitioner's role is one of authority by virtue of the patient seeking assistance and guidance; that breaches of the relationship have often caused severe psychological damage to the patient; that the doctor is in a unique position regarding physical and emotional proximity. The relationship of doctor-patient is not one of equality, and the patient seeking treatment is vulnerable. Exploitation of a patient constitutes an abuse of power. Lastly, the decision referred to the need to maintain the utmost integrity in the medical profession and that the community must be confident that personal boundaries will not be placed at risk.
For other instances of conditions concerning the need to protect the public: see Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 and for the maintenance of standards: see Gayed v Walton [1997] NSWSC 297; Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [91]; Health Care Complaints Commission v Howe [2010] NSWMT 12 at [113]; Health Care Complaints Commission v Iskander [2015] NSWCATOD 30.
Taking these considerations into account, the Tribunal must determine what measures must be taken to protect potential patients should it determine that, contrary to the submissions made by the applicant, the practitioner is permitted to practise under conditions.
The practitioner has urged the Tribunal to reinstate his right to practise subject to the conditions imposed by the Medical Council, which effectively restricted his practice to medico-legal assessments. In Lucire v Health Care Complaints Commission, Basten JA at [73]-[75] said inter alia: It is difficult to see how a medical practitioner, particularly a psychiatrist, who is not permitted to treat, manage or advise patients could be thought by those who commission medico-legal reports to be qualified to provide such reports or to be capable of preparing reports that would carry significant weight with the Court. To remove a practitioner's ability to treat patients is tantamount to suspension or deregistration. His Honour continued: It does not follow that every condition imposed, as being reasonably necessary for the protection of a practitioner's patients, necessarily demonstrates that that practitioner cannot be trusted in relation to a fundamental aspect of proper professional conduct: see Health Care Complaints Commission v Wingate [2007] NSWCA 326; 70 NSWLR 323 at [61]-[62]. Nevertheless, it is difficult to see how any other conclusion can be reached in respect of a condition that a practitioner not treat any patients at all in any circumstances. Nor does the fact (if it be the fact) that the practitioner does not intend to treat patients, undermine our conclusion. The condition formulated by the Tribunal was, in a practical sense, inconsistent with its conclusion that the practitioner was not guilty of professional misconduct.

FINDINGS

The Tribunal is satisfied that taking into account the evidence of Dr Diamond that the practitioner is now more aware than ever of the need for strict compliance with his professional obligations and standards; and further, that the particular conditions which prevailed at the time of his breaches were confined to a particular period. The practitioner seeks to be permitted to engage in medico-legal assessments only. However, the decision of the Court of Appeal in Lucire makes it plain that to restrict a medical practitioner to such a role would be inconsistent with the findings of the Tribunal, once a finding on professional conduct has been made.
The Tribunal is not satisfied that the practitioner is currently fit to practise, and that he may remain so for some period. Young males particularly remain vulnerable, as the practitioner recognises. Accordingly, adopting the same reasoning as was in Health Care Complaints Commission v Della Bruna [2014] NSWCATOD 31; Health Care Complaints Commission v Jamieson [2014] NSWCATOD 56, the Tribunal considers that the practitioner's name should be removed from the roll of practitioners and that he not be eligible for re-enrolment for a minimum period of 2 years from the date of these orders.

ORDERS

The Tribunal makes the following Orders in relation to the sanctions to be imposed on the practitioner: 1. That the respondent's registration be cancelled pursuant to s.149C(1)(c) of the National Law. 2. The respondent may not apply for review of a cancellation order for a period of two years pursuant to s 149C(7). 3. The respondent is prohibited pursuant to s 149C(5) from providing any health services as defined under s.4 of the Health Care Complaints Act 1993 on either a paid or voluntary basis, whether provided as a public or private service, until such time as he brings an application for review and is re-registered as a medical practitioner. 4. The respondent is to pay the costs of the applicant.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 29 March 2018

Medical Practice Regulation 2008(NSW)

At a glance

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Judgment (19 paragraphs)

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Legislation Cited (4)

Cases Cited (15)

Cited By (1)