Health Care Complaints Commission v Alexakis

th Care Complaints Commission [2011] NSWCA 353 Luxton v Vines (1952) 85 CLR 352; [1952] HCA 19 Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305 Marshall v Prescott [2015] NSWCA 110 New South Wales Land and Housing Corporation v Orr (2019) 100 NSWLR 578; [2019] NSWCA 231 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Secretary of the Treasury (2014) 242 IR 318; [2014] NSWCA 112 R v Byrnes & Hopwood (1995) 183 CLR 501; [1995] HCA 1 Singer v Berghouse (1994) 181 CLR 201; [1994] HCA 40 Tillmans Butcheries Pty Ltd v Australasian Meat Industry Employees' Union (1979) 42 FLR 331; [1979] FCA 132 Texts Cited: Medical Board of Australia, Good Medical Practice: a code of conduct for doctors in Australia, March 2014 Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Peter Alexakis (Respondent) Representation: Counsel: P Lowson (Applicant) L Ellison SC (Respondent) L Fernandez (Respondent, junior counsel)

Solicitors: Health Care Complaints Commission (Applicant) Teece Hodgson & Ward Solicitors (Respondent) File Number(s): 2020/00148494 Publication restriction: Pursuant to section 64 of the Civil and Administrative Tribunal Act 2013 (NSW), disclosure to any person or entity of the names of the patients, the medical practitioners and solicitor set out in the Schedule to the Complaint is prohibited.

Introduction

1. By Further Amended Complaint (Complaint) filed on 6 July 2022, the Health Care Complaints Commission (the Commission) sought orders against Dr Peter Alexakis (the Practitioner) pursuant to the provisions of s 39(2) and s 90B(3) of the Health Care Complaints Act 1993 (NSW) and s 145A of the Health Practitioner Regulation National Law (NSW) (the National Law).
2. There was no challenge to the decision of the Commission to institute the present proceedings against the Practitioner in accordance with the requirements of the Health Care Complaints Act or any asserted failure to comply with s 145A of the National Law.
3. The Commission's application comprised five particular Complaints. Complaints 1 and 2 alleged inappropriate prescribing of Schedule 4 and Schedule 8 drugs to Patient A, and inadequate recordkeeping in relation to the prescribing of drugs to Patient A. The Practitioner admitted those Complaints, and further admitted that his conduct constituted unsatisfactory professional conduct.
4. Complaints 3 and 4 alleged boundary and other transgressions in relation to the treatment of Patient B. The Commission alleged by those Complaints that the practitioner's conduct "ultimately resulted in [the Practitioner] being bequeathed virtually all of Patient B's estate", and inadequate record keeping in relation to the treatment of Patient B. The Practitioner made no admissions with respect to those Complaints.
5. Complaint 5 alleged that the findings of unsatisfactory professional conduct which it submitted the Tribunal would make pursuant to Complaints 1 to 4, individually or in conjunction, established professional misconduct. The Practitioner disputed those allegations.
6. It was common ground that the hearing before the Tribunal was directed to determining whether the Commission made out its Complaints. The Tribunal's task has been: 1. To determine whether, on the evidence, the facts alleged by the Commission in support of Complaints 3 and 4 are proven; 2. Whether, to the extent that Complaints 3 and 4 are found to have been proven, the conduct of the Practitioner amounts to unsatisfactory professional conduct; 3. Whether the unsatisfactory professional conduct of the Practitioner which is either admitted or found proven is sufficiently serious to constitute professional misconduct.
7. The first step in the proceedings (Stage 1) is to determine whether the Commission has established the facts alleged in support of its complaints to the comfortable satisfaction of the Tribunal on the balance of probabilities (Health Care Complaints Commission v Grygiel (Termination Application) [2020] NSWCATOD 53); whether such facts as are found to have been proved establish unsatisfactory professional conduct pursuant to s 139B of the National Law; and, if so, whether such conduct is sufficiently serious to establish professional misconduct pursuant to s 139E of the National Law (King v Health Care Complaints Commission [2011] NSWCA 353; Health Care Complaints Commission v Robinson [2022] NSWCA 164).

Material before the Tribunal

1. The Tribunal received a Statement of Agreed Facts prepared by Counsel for the parties (Exhibit X).
2. The Commission filed four volumes of evidence which became Exhibit HCCC1. The Commission subsequently filed a bundle of supplementary documents which became Exhibit HCCC2. The Commission filed a letter to the Practitioner setting out portions of the Code of Conduct relied upon by it (Exhibit HCCC3), an Affidavit of M Wallis dated 20 July 2022 (Exhibit HCCC4), and inserted at Tab 11 of Exhibit HCCC1 the further Affidavit of M Wallis dated 21 July 2022. The Commission tendered an Affidavit sworn by Person C (Exhibit HCCC1, Tab 10B).
3. The Commission tendered a further Affidavit of M Wallis of 22 July 2022 (Exhibit HCCC5), an Affidavit of the Practitioner as Executor of the Will of Patient A of 29 November 2019 (Exhibit HCCC1, Tab 22), an Affidavit of the Practitioner of 25 June 2020 (Exhibit HCCC1, Tab 23) and an email from Person C to the Practitioner of 2 June 2017 (Exhibit HCCC1, Tab 24).
4. The Practitioner relied upon his Amended Reply, which became Exhibit R1-1, a statement made by him (Exhibit R1-2), a handwritten letter from Patient B to the Practitioner (Exhibit R1-3), a transcript of handwritten notes of house visits made to Patient B by the Practitioner (Exhibit R1-4), the RACGP Silver Book (Exhibit R1-5), Bull Son & Schmidt Correspondence (Exhibit R1-6), supplementary statement of the Practitioner (Exhibit R1-7), statement of Brendan Myhill (Exhibit R1-8), statement of Person N (Exhibit R1-9), two letters to Dr Mittal (palliative care) from the Practitioner (Exhibit R1-10), and an email chain of documents filed in the Supreme Court (Exhibit R1-11). Marked for identification, but not ultimately tendered were an article authored by Dr Hamlin (MFI 12), a document by Train IT Medical (MFI 13), audit reports (MFI 14), and mentor reports (MFI 15).
5. The proceedings were heard on 11-14 and 18-22 July 2022, and on 5-6 September 2022.
6. The Commission filed an outline of its submissions on 17 October 2022, and supplementary submissions on 21 November 2022.
7. The Practitioner filed written submissions on 23 November 2022. The Practitioner filed supplementary closing submissions on 25 November 2022.
8. The Commission filed an outline of submissions in reply on 1 December 2022.

Background to the proceedings

1. The Statement of Agreed Facts (Exhibit X) provides a comprehensive background to the proceedings and records: "1 [Patient B] was born on 9 August 1933 and died on 21 November 2017. 2 [Patient B] first consulted with Dr Alexakis on 15 August 2014 (Tab 32 p 259). 3 [Patient B] was admitted to Royal Prince Alfred Hospital (RPA) on 6 May 2017 and discharged on 26 May 2017. 4 [Patient B] was readmitted to RPA on 26 May 2017 and discharged on 26 June 2017 ("the second admission"). 5 During the second admission Dr Alexakis visited [Patient B] at RPA at least on 28, 31 May, 1, 2, 6, 9, 10, 11, 12, 13, 14, 15, 18, 21, 22 and 24 June 2017 (Tab 33 pp 8, 9, 167, 181, 197, 206, 217, 218, 221, 224, 226, 237, 238/9-279). 6 Dr Agnes Chan undertook an assessment of [Patient B] on 1 June 2017 and was unable to determine if he had testamentary capacity. 7 Dr Charlie Betts undertook an assessment of [Patient B] on 1 June 2017 and was unable to determine if he had testamentary capacity. 8 Dr Nora Breen undertook a neuropsychological assessment on [Patient B] on 2 June 2017 and determined that he had testamentary capacity. 9 Dr Alexakis attended at RPA on 6 June 2017 with [Person C], solicitor, and introduced [Person C] to [Patient B]. 10 [Person C] had done work for the Alexakis family, and had prepared a Will for Dr Alexakis' father. 11 [Person C] prepared and witnessed [Patient B's] Will dated 8 June 2017. 12 On 13 June 2017 between 11.09 a.m. and 1.23 p.m. [Dr E], Dr Brian Fernandes and Dr Melanie Wroth conducted a consultation with [Patient B] (Tab 33 pp 177-179). 13 On 13 June 2017 between 1.23 p.m. and 3.57 p.m. [Patient B] attempted to leave the hospital, generating a "Code Black" (Tab 33 p 179). 14 From 26 June until 30 October 2017 [Patient B] remained at his home at … Strathfield. 15 On 28 June 2017 Dr Wroth notified a complaint to the Health Care Complaints Commission about Dr Alexakis. 16 On 10 July 2017 [Person C] prepared and witnessed [Patient B's] Will dated 10 July 2017. 17 From around 9 July until 5 October 2017 Dr Alexakis visited [Patient B] at his home daily - almost daily. 18 On 12 September 2017 police officers attended at [Patient B's] home and spoke to him about his Wills. 19 On 23 September 2017 police officers spoke to Dr Alexakis about his relationship with [Patient B]. 20 On 5 October 2017 Dr Alexakis visited [Patient B] for the last time. 21 On 8, 18 and 27 October 2017 Dr Alexakis telephoned [Patient B]. 22 On 30 October 2017 [Patient B] was admitted to the Concord Palliative Care facility. 23 On 21 November 2017 [Patient B] died."

Complaint 1

1. Complaint 1 alleged that the Practitioner was guilty of unsatisfactory professional conduct pursuant to s 139B(1)(a) and/or s 139B(1)(l) of the National Law in that the Practitioner: "i. engaged in conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of medicine is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience; ii. engaged in improper or unethical conduct relating to the practice or purported practice of medicine."
2. The statutory definition of unsatisfactory professional conduct provided by s 139B(1)(a) requires no clarification. In the context in which they find expression, the words of the provision are afforded their ordinary meaning: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28.
3. The terms "improper" and "unethical" conduct in s 139B(1)(l) of the National Law are not defined in the statute but have been given their ordinary meaning by the Tribunal in numerous decisions in proceedings pursuant to the National Law.
4. The Macquarie Dictionary definition of "improper" as "not in accordance with propriety of behaviour, manners etc., or abnormal or irregular" was adopted in Health Care Complaints Commission v Ross [2019] NSWCATOD 153 ("Ross") at [59]. In R v Byrnes & Hopwood (1995) 183 CLR 501; [1995] HCA 1, the High Court said (at [24]) that "improper" was an "indefinite term", and (at [25]) that, although "not a term of art", the issue of impropriety needed to be determined by reference to the "particular duties and responsibilities of the particular officer whose conduct is impugned", which is not "subjectively" determined, but determined by reference to a "range of considerations that may be taken into account".
5. The dictionary definition of "unethical" as "contrary to moral precept, immoral, in contravention of some code of professional conduct" was adopted in Ross at [59] and in Health Care Complaints Commission v Little [2016] NSWCATOD 146.
6. The background to Complaint 1 recorded that the Practitioner consulted with Patient A at his practice at Strathfield between approximately 4 November 2008 and late 2017 (consultation period), and that Patient A was a refugee from Afghanistan who suffered ongoing pain due to injuries from his time serving in the Afghan Army. The particulars of Complaint 1 alleged: "1 The practitioner failed to conduct an appropriate assessment of Patient A prior to prescribing oxycodone regularly between 16 September 2008 and 24 July 2017 in that he did not: (a) take an adequate medical history; (b) conduct an adequate physical examination; (c) conduct an adequate investigation into possible pathological reasons for Patient A's pain; (d) assess risk of dependence. 2 The practitioner failed to conduct an appropriate assessment of Patient A prior to prescribing fentanyl regularly between 20 April 2009 and 29 October 2017 in that he did not: (a) take an adequate medical history; (b) conduct an adequate physical examination; (c) conduct an adequate investigation into possible pathological reasons for Patient A's pain; (d) assess risk of dependence. 3 The practitioner failed to conduct an appropriate assessment of Patient A prior to prescribing diazepam regularly between 22 November 2010 and 23 May 2016 in that he did not: (a) take an adequate medical history; (b) conduct an adequate physical examination; (c) conduct an adequate investigation into possible pathological reasons for Patient A's pain; (d) assess risk of dependence. 4 The practitioner failed to refer Patient A to a pain specialist at any time during the consultation period. 5 Between 26 May 2015 and 5 March 2017 the practitioner prescribed oxycontin to Patient A on the dates and in the quantities set out in the schedule attached and marked "Schedule A": (a) without clinical indication; (b) in quantities in excess of recognised therapeutic standards; (c) in doses in excess of recognised therapeutic standards; (d) in an irregular dosing pattern which does not accord with recognised therapeutic standards; (e) for a duration in excess of recognised therapeutic standards; (f) in an inappropriate combination with benzodiazepines; (g) without obtaining an authority to prescribe the medication from the Director-General of the Department of Health contrary to s 28 of the Poisons and Therapeutic Goods Act 1966 ("PTG Act"); (h) when he knew or ought to have known that Patient A was at risk of becoming dependent on the drug; (i) when he knew or ought to have known that Patient A was likely to abuse the drug. 6 Between 26 May 2015 and 5 March 2017 the practitioner prescribed fentanyl to Patient A on the dates and in the quantities set out in the schedule attached and marked "Schedule A": (a) without clinical indication; (b) in quantities in excess of recognised therapeutic standards; (c) in doses in excess of recognised therapeutic standards; (d) in an irregular dosing pattern which does not accord with recognised therapeutic standards; (e) for a duration in excess of recognised therapeutic standards; (f) in an inappropriate combination with benzodiazepines; (g) without obtaining an authority to prescribe the medication from the Director-General of the Department of Health contrary to s 28 of the PTG Act; (h) when he knew or ought to have known that Patient A was at risk of becoming dependent on the drug; (i) when he knew or ought to have known that Patient A was likely to abuse the drug."

Complaint 2

1. Complaint 2 alleged that the Practitioner was guilty of unsatisfactory professional conduct pursuant to s 139B(1)(b) of the National Law in that the Practitioner contravened: "(i) a provision of the Medical Practice Regulation (NSW) 2008 (now repealed) ("the Regulation 2008"); (ii) the Health Practitioner Regulation (NSW) Regulation 2010 (now repealed) ("the Regulation 2010"); (iii) the Health Practitioner Regulation (NSW) Regulation 2016 (now repealed) ("the Regulation 2016")."
2. The Commission repeated and relied upon the background to Complaint 1. The Complaint was particularised in the following terms: "1 Between approximately 4 November 2008 and 30 June 2010 the practitioner contravened clause 1 of Schedule 1 of the Regulation 2008 in that he failed to adequately document the following in Patient A's medical record: (a) clinical opinion; (b) management plan; (c) medical history; (d) physical examination(s); (e) the cause of Patient A's pain. 2 Between approximately 1 July 2010 and 31 August 2016 the practitioner contravened clause 1 of Schedule 2 of the Regulation 2010 in that he failed to adequately document the following in Patient A's medical records: (a) clinical opinion; (b) management plan; (c) medical history; (d) physical examination(s); (e) the cause of Patient A's pain. 3 Between approximately 1 September 2016 and late 2017 the practitioner contravened clause 1 of Schedule 4 of the Regulation 2016 in that he failed to adequately document the following in Patient A's medical records: (a) clinical opinion; (b) management plan; (c) medical history; (d) physical examination(s); (e) the cause of Patient A's pain."
3. The Commission asserted that each of the particulars in itself justified a finding of unsatisfactory professional conduct but, in the alternative, that when two or more of the particulars were taken together, a finding of unsatisfactory professional conduct was justified.
4. As previously recorded, the Practitioner admitted Complaint 2.
5. The evidence relating to Patient A is found at Tabs 27 to 31 of Exhibit HCCC1. Patient A's prescribing schedule (Exhibit HCCC1, Tab 27) is the evidentiary foundation for the schedule to the Commission's Amended Complaint, which replicates the source documents. The Practitioner's patient records with respect to Patient A (Exhibit HCCC1, Tab 31) are also consistent with the details of prescriptions emerging from the documents at Exhibit HCCC1, Tab 27.

Complaint 3

1. Complaint 3 alleged that the Practitioner was guilty of unsatisfactory professional conduct under s 139B(1)(a) and/or s 139B(1)(l) of the National Law in that the Practitioner: "i. engaged in conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of medicine is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience; ii. engaged in improper or unethical conduct relating to the practice or purported practice of medicine."
2. The Commission relied upon the background matters pleaded with respect to Complaints 1 and relied upon those matters in support of this Complaint.
3. Although their significance is controversial, the following background matters to Complaint 3 pleaded by the Commission are not in contest and provide: "The practitioner consulted with Patient B between January 2014 and 5 October 2017. In January 2014 Patient B was approximately 80 years old. Patient B suffered from a number of serious health issues including metastatic colorectal cancer and Type 2 diabetes. Between approximately 20 June 2015 and 23 January 2017 Patient B was admitted to Concord Repatriation General Hospital ("Concord Hospital") on around four occasions for various issues. During some of that time, Patient B was cared for by Medical Practitioner D who was a geriatrician. On 24 June 2015 Medical Practitioner D wrote to the practitioner advising inter alia that Patient B "needs to update his Will and also make arrangements for his five companies". On 2 September 2016 Medical Practitioner D wrote to the practitioner advising inter alia that Patient B "is very keen to get his affairs in order and has made previous Wills but is now keen to revise and is currently worrying about which charitable institution he should bequeath his wealth to." Patient B was admitted to Royal Prince Alfred Hospital ("RPA") between 6 May 2017 and 16 May 2017 ("the first RPA admission") with bowel obstruction. On 26 May 2017 Patient B was readmitted to RPA under the care of Medical Practitioner E, a palliative care specialist, with nausea and vomiting. Patient B was discharged on 26 June 2017 ("second RPA admission"). On 8 June 2017 Patient B revoked his former Will dated 25 May 2016 which named the Salvation Army as Executor and beneficiary to a large portion of his estate and made a new Will. The 8 June 2017 Will appointed 65% of Patient B's estate to the practitioner as executor and beneficiary. On 10 July 2017 Patient B revoked his 8 June 2017 Will and made a new Will. The 10 July 2017 Will appointed Solicitor C as executor and bequeathed to the practitioner his Strathfield property and approximately 90% of his estate. On or around 21 September 2017 the Practitioner was advised by NSW Police that a complaint had been made in relation to his care of Patient B ("the 21 September 2017 complaint"). On 21 November 2017 Patient B died. On 2 October 2019 a notice was published on the Supreme Court of NSW website ("the notice") stating that the Practitioner would make an application for administration with Patient B's Will within 14 days from the notice. The notice also indicated that Solicitor C renounced Probate of Patient B's Will on 9 September 2019."

Particular 1 of Complaint 3

1. This particular alleged that: "During Patient B's second RPA admission the practitioner failed to observe proper professional boundaries in that he visited Patient B on at least 10 occasions: (a) in a non-professional capacity; (b) without clinical indication."
2. Patient B was admitted to RPA on 26 May 2017 and discharged from RPA on 26 June 2017.
3. In view of the comprehensive submissions of each party, it is appropriate to identify the ambit and identity of matters which were ultimately controversial, and then to consider the evidence before the Tribunal in order to resolve those controversies. As is apparent from their terms, the submissions of both parties, particularly with respect to the credibility of the evidence of the Practitioner, are relevant to the evaluation of most of the particulars of this Complaint.
4. The Commission submitted (at par 32) that the "context" in which the Practitioner attended RPA during Patient B's hospitalisation "on an almost daily basis" included a number of matters "most if not all of which, were known or ought to have been known" to the Practitioner at the time. Those matters, which were not ultimately in contest, were: "(a) [Patient B] was gravely ill and was at risk of dying; (b) according to the respondent, [Patient B] had been told in early May that he had two months to live; (c) as a consequence of one or both of the foregoing, [Patient B] was facing the prospect of dying during his second admission at RPA; (d) [Patient B] wanted to change his Will; (e) [Patient B] had wanted to change his Will since 2016; (f) [Patient B] no longer wanted to leave the substance of his estate to the Salvation Army; (g) [Patient B] had fallen out with his friend Frank Camilleri; (h) [Patient B] was socially isolated; (i) [Patient B's] personality was such that he was inclined to be suspicious of, and disinclined to trust, other people; (j) [Patient B] had no family to whom he owed the ordinary obligation of a testator, such as partner or children; and (k) [Patient B] held the respondent in high regard and trusted his opinion as a medical practitioner."
5. The Commission submitted (at par 33) that by the Practitioner's "almost daily" visits to Patient B at RPA, his "acquiescing to [Patient B's] request for the name of his personal solicitor and arranging for the solicitor to attend", "advocating on [Patient B's] behalf", the Practitioner "positioned himself as a person to whom [Patient B] owed a debt of gratitude", which was in addition to the doctor-patient relationship "whereby [Patient B] looked up to" the Practitioner and "also derived status from the relationship". It was thus submitted (at par 34) that a conflict of interest arose "where the trust and confidence that [Patient B] reposed in the Respondent, as his general practitioner, was overlaid with the Respondent placing himself in a position where it was likely that [Patient B] would both feel a debt of gratitude to him, and act on discharging that debt, by making the Respondent a beneficiary under a Will to be drafted by the Respondent's own solicitor."

Evidence of Dr Nora Breen

1. Dr Nora Breen provided a statement with respect to her involvement in Patient B's treatment at RPA (Exhibit HCCC1, Tab 7). Dr Breen was a Clinical Neuropsychologist at the time of Patient B's second RPA admission. Dr Breen referred (at par 7) to having received a "summary" about Patient B from a referring doctor named "Daniel". Dr Breen further recorded having been informed that Patient B had a substantial estate, "managed his own finances, worked in solitude, that his GP was his main support person, and that he wanted to change his [W]ill".
2. Dr Breen referred to a conversation with Patient B's referring doctor on 1 June 2017. Dr Breen recorded (at par 10) that as she works in "Allied Health, I do not consult with the inpatient's GP. The treating doctors discuss the inpatient's care with the GP, and Neuropsychology receives a referral from the treating doctor."
3. Dr Breen recorded (at par 11) that, in her first consultation with Patient B on 2 June 2017, he "refused to participate in testing". In cross-examination by Mr Fernandez on behalf of the Practitioner on 13 July 2022, Dr Breen was asked about the circumstances in which she came to consult with Patient B, and the purpose of such consultations. Nothing emerging from Dr Breen's cross-examination provides a basis for doubting Dr Breen's evidence about Patient B's attitude to testing, or materially impacts upon our determination of this particular.

Evidence of Dr Brian Fernandes

1. Dr Brian Fernandes prepared a statement for the proceedings (Exhibit HCCC1, Tab 8). In 2017, Dr Fernandes was employed as a Resident Medical Officer (RMO) at RPA. In the course of his duties, Dr Fernandes saw Patient B on a regular basis. Dr Fernandes referred (at par 9) to his belief that the Practitioner had informed other members of the RPA team treating Patient B about some concerns with respect to Patient B's capacity.
2. Dr Fernandes referred (at par 14) to a telephone call to the Practitioner's surgery on 31 May 2017, and to a conversation with the Practitioner the following day, during which, having in the interim spoken to Dr E, a Senior Clinician at RPA, Dr Fernandes informed the Practitioner that "No further medical input or otherwise that are required from him", "provided an update on [Patient B] as per Dr Alexakis' request, and also informed him that chemotherapy had not been considered for Patient B as he was palliative, and the goals of his care were supportive management". Although Dr Fernandes referred to other matters which assumed significance in the context of other particulars of the Commission's application, he did not shed further light on the subject matter of this particular.
3. In cross-examination of Dr Fernandes by Senior Counsel for the Practitioner, the following exchange occurred (Tcpt,12 July 2022, p 53 line 48): "Q. You say … that from the medical perspective of the palliative care unit, there was no medical requirement or necessity for Dr Alexakis to visit [Patient B] while he was an inpatient at Royal Prince Alfred. A. Yes. Q. Realistically speaking, from the medical requirement there's no necessity for anybody to visit a patient or an inpatient at hospital is there. A. There is no medical requirement. No. Q. But it's almost an essential part of, hopefully, someone's treatment and recovery that they have, within reason, a regular regime of visitors. A. You could say so. Q. If only to keep up their morale. A. You could say so. Q. … a patient having a good morale is important in the context of trying to bring that patient to recovery, or maintaining mental health while physical health may have problems that sort of perspective; correct? A. Yes. Q. Friends visit as necessary; correct? A. Yes. Q. Sometimes people don't have many friends and so you just see the same faces to the extent that you may run into visitors; correct? A. Yes. … Q. You had some contact with Dr Alexakis; correct? A. I did. Q. You knew he was [Patient B's] general practitioner at least up until the time of admission; correct? A. Yes. Q. You assumed that when the time came, whenever it was to be, that [Patient B] would be discharged initially into the care of Dr Alexakis? A. Yes, and to that point I recall in the notes there was a clarification from the team to clarify if that was, indeed, the patient's wishes. Q. And that was the patient's wishes; correct? A. Yes. … Q. When the time came to discharge, at least initially, the primary responsibility would pass to the general practitioner; correct? A. Correct. Q. It was the general practitioner's job to, as best he could, maintain the patient's health and wellbeing and, wherever possible, consistent with that, to look after him without readmission to hospital. A. Yes. Q. From time to time Dr Alexakis enquired of you concerning [Patient B's] health and treatment; correct? A. No, only enquired once. … Q. He appreciated that you and your colleagues were the specialists providing specialist care to [Patient B] in the hospital; correct? A. Yes. Q. You knew that [Patient B], again for whatever reason, wasn't a fan of the hospital or the medical staff; correct? A. I can't say yes or no. There was times during his admission that he made that very clear. Q. Yes. You knew directly or indirectly that he didn't want to be in hospital, he wanted to be at home. A. Yes, and just to go back to the previous question, [Patient B] also did say RPA was the best hospital that he had ever been in, as well. Q. But he still wanted to be at home? A. Yes, I agree with that. … Q. You knew directly or indirectly that the patient had a significant degree of trust and confidence in Dr Alexakis? A. Yes. Q. You knew directly or indirectly that [Patient B] wasn't as forthcoming in communication with hospital staff as you might hope that he would be; correct? A. I'd have to think of a particular example that would have to align to I can't absolutely agree with that."

Evidence of Dr E

1. Dr E provided a statement in the proceedings (Exhibit HCCC1, Tab 9). Dr E is a Palliative Care Specialist at RPA, as she was during the time of Patient B's second RPA admission.
2. Dr E stated (at par 5) that her first contact with the Practitioner was "around the second week" of Patient B's admission, and that she considered his request for a competency assessment of Patient B "fair as [Patient B] lived alone and lacked social support". Dr E further stated (at par 6) that "Dr Alexakis continued to contact me every few days during [Patient B's] admission to the RPAH, enquiring about his progress. I didn't make a record of the telephone calls I received from Dr Alexakis until such point that I formed a suspicion about his conduct towards [Patient B]".
3. As is apparent from Dr E's statement, her "suspicion" about the Practitioner's conduct arose out of things which she overheard or was told. Dr E referred (at par 8) to a telephone call from the Practitioner on 9 June 2017 during which he "enquired" about Patient B's health and told her a number of other matters with respect to his medical history. Dr E recorded (at par 10) that, following a conversation with Patient B on 13 June 2017, "Dr Wroth and I had a discussion and we shared a concern that Dr Alexakis may have been 'grooming' [Patient B], leading to the change in his [W]ill. Dr Wroth and I were concerned that Dr Alexakis did not have appropriate boundaries in his care of [Patient B] and that he had a conflict of interest".
4. Dr E referred (at par 11) to a telephone call which she received from the Practitioner on 14 June 2017 in which he was "quite persuasive in advocating for [Patient B] to return home on gate leave". Dr E referred (at par 12) to a telephone call which she received on 19 June 2017 from Dr D, Geriatrician Staff Specialist at Concord Hospital, informing her that "she had received at least two telephone calls from Dr Alexakis on 18 June 2017" suggesting that Patient B be transferred to Concord under her care.
5. Dr E referred (at par 14) to a telephone call from the Practitioner on 21 June 2017 in which he "said assertively that I was taking too long in the discharge planning for [Patient B]" and that the Practitioner told her that Patient B "had expressed concerns to him that the discharge planning was taking too long, and that he would never get home". Dr E recorded the Practitioner as having "recommended that [Patient B] have 24 hour private nursing care at home, which Patient B could afford, and could be arranged at Concord Hospital".

Evidence of Dr Melanie Wroth

1. Dr Melanie Wroth swore an Affidavit in the Supreme Court proceedings in which the Practitioner was a party with respect to Patient B's Will(s), which is found in Commission's supplementary material tendered on 12 July 2022 (Exhibit HCCC2).
2. Dr Wroth was a Senior Staff Specialist Geriatrician at Royal Prince Alfred Hospital during the time of Patient B's second RPA admission. As is not in doubt, Dr Wroth's contact with Patient B was confined to one day, 13 June 2017 when she attended on Patient B at a time when Dr Fernandes and Dr E were also present.
3. In cross-examination (Tcpt, 14 July 2022, p 8 line 19) Dr Wroth agreed that it was "not unknown, but it's very unusual" for a GP to visit a patient while the patient is in hospital. Dr Wroth subsequently (Tcpt, p 8 line 32) said that "It almost, in my experience, never happens" that a GP visits a patient while the patient is in hospital, the exception being "in the end of life setting where the GP knew that the person was going to die in hospital" and "came to say goodbye". That was the only time Dr Wroth could remember a visit by a GP to a patient while the patient was in hospital.
4. Dr Wroth agreed (Tcpt, 14 July 2022, p 9 line 13) that "a GP can insist" on, in this instance a neuropsychological assessment, "but it doesn't necessarily mean it's going to happen. A GP can't demand that it happen and have it happen, but they can make the demand". Dr Wrote agreed (Tcpt, p 9 line 21) that GPs "can be very forceful in what they request or want, and in many times that occurs and sometimes it doesn't occur", and made clear that the decision was ultimately that of the treating specialists in the hospital "based on the accumulation of knowledge and opinion" (Tcpt, p 9 line 27).
5. Dr Wroth confirmed (Tcpt, 14 July 2022, p 17 line 20) that she became involved in Patient B's case "with the object of contributing to the understanding of what had gone on with Dr Alexakis and whether or not it was sufficient cause for concern to instigate a complaint". Dr Wroth's only contact with Patient B was of approximately 1 hour's duration on 13 June 2017 (Exhibit HCCC1, Tab 33, p 179). Dr Wroth did not ever actually speak to the Practitioner. Dr Wroth confirmed (Tcpt, 14 July 2022, p 25 line 24) that her involvement with Patient B was not "in relation to the treatment of the patient".

Evidence of Dr Charles Betts

1. Dr Charles Betts, who was a trainee Psychiatrist at RPA in 2017, made a statement to investigating officers of the Commission on 30 April 2019 (Exhibit HCCC1, Tab 9B). Dr Betts (at p 5) was referred to entries made by other health practitioners in RPA records and asked about statements Patient B was recorded as having made about visits by the Practitioner. Dr Betts did not refer in his statement to having ever seen the Practitioner visit Patient B. Dr Betts was referred (at p 7 line 17) to his note that the Practitioner "believed a capacity assessment was appropriate in the context of the patient's deterioration and ongoing financial matters". Dr Betts said (p 7 line 30) that "at the time I didn't weigh whether or not it was an appropriate thing to be doing. There was a referral and we helped facilitate these requests through the medical team as a part of our role. So we're doing what we could to make a contribution to it and we did not do the capacity assessment ourselves, we do not offer that service." Implicit in Dr Betts' statement is that he did not see anything inappropriate in the Practitioner's request at the time it was made. Dr Betts' statement did not otherwise reveal any matters of direct relevance to this particular.
2. In cross-examination (Tcpt, 12 July 2022, p 44 line 1), Dr Betts was asked whether he had spoken to the Practitioner after having a conversation with Patient B. He said that, although he was unsure when the conversation occurred, he had spoken with the Practitioner "because Dr Alexakis was [Patient B's] treating doctor" (Tcpt, p 44 line 17). Dr Betts clarified that it was part of the "process that we touch base with a GP and just get some collateral information and try to understand their side of things" (Tcpt, p 44 line 20). He agreed that was because doing so "can have useful information on a patient" (Tcpt, p 44 line 23). Dr Betts added that speaking to Patient B's GP "helps us - it helps gives - gives context to what we're seeing on the spot" and that an "aspect of why we would contact a GP was to keep the GP in the loop about the patient's treatment plant" (Tcpt, p 44 line 39-42) and that doing so was considered by Dr Betts to "help" in "dealings with the patient at the time in the hospital (Tcpt, p 44 lines 47-49). Dr Betts also agreed that obtaining such information was important because the patient would be discharged into the care of the GP and that, as "a matter of diligence", the hospital treating team wanted to "share the information" which it had on the patient with the GP (Tcpt, p 45).

Evidence of Dr D

1. Dr D made a statement in the proceedings (Exhibit HCCC1, Tab 9A). During Patient B's second admission at RPA, Dr D was a Geriatrician at Concord Repatriation General Hospital (Concord), and first met Patient B in June 2015, following his admission to Concord after a fall. Although Dr D's evidence assumes significance with respect to other particulars, her statement also referred (at pars 75-83) to events which occurred during Patient B's second stay at RPA. In the course of that statement Dr D referred to a conversation with Dr Fernandes (at par 75) in which she informed him that "Dr Alexakis would be able to provide details of [Patient B's] recent progress".
2. Dr D referred (at pars 75-78) to a brief social visit she made to Patient B at RPA on 12 June 2017. Dr D then referred (at pars 81-82) to what she considered "inappropriate" telephone calls made to her by the Practitioner with respect to Patient B's hospitalisation. Dr D's statement did not contain other matters of relevance for the purposes of our evaluation of this particular.
3. In cross-examination, Dr D was asked about her social visit to Patient B on 12 June 2017. Dr D explained (Tcpt, 18 July 2022, p 266 lines 13-15) that her visit was "not to cheer [Patient B] up. To say goodbye, because I considered the risk of him dying really quite high. And just so that he knew that there was somebody who cared for him".
4. Dr D clarified (Tcpt, 18 July 2022, p 266 lines 11-22) that she "knew he didn't have any family, and he told me that there were no close friends or anyone that he would consider close. And so, I was there in a professional capacity, like, so not to provide a service, but to acknowledge the relationship that we'd had, and to say goodbye". Dr D was asked (Tcpt, p 267 line 6) whether she "thought that there was nothing unprofessional or improper about speaking to the treating team" about Patient B, to which Dr D replied "No. And I particularly wanted to discuss private care at home as an option for [Patient B]". This was at a time when, as Dr D acknowledged, she was not part of Patient B's treating team. Predictably, the Practitioner relied on this evidence.
5. Dr D agreed (Tcpt, 18 July 2022, p 267 lines 20-24) that it was "not unusual for GPs to visit in hospital" although she had not "encountered such frequent visits before" and that every doctor-patient relationship was "different".

Consideration

1. The determination of this Complaint is not without complexity. We have not been referred to anything in the Code of Conduct which provides express or significant assistance. As is reasonably apparent from the expert medical evidence to which we have referred, and ultimately not disputed by Dr Christie, determining professional boundaries in circumstances such as Patient B's during his second RPA admission turns on the particular facts and circumstances of the relationship between the Practitioner and the patient.
2. As is not in doubt, the Commission bears the onus of proof of each element of its Complaints - the Practitioner does not have to prove anything. The factual content of the Commission's allegations must be established on the balance of probabilities and the question of whether that level of proof has been reached is to be assessed having regard to all of the relevant evidence before the Tribunal: Health Care Complaints Commission v Wilcox [2020] NSWCATOD 10. The principles identified in Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 apply (Health Care Complaints Commission v Grygiel (Termination Application) [2020] NSWCATOD 53), and require the Tribunal to be mindful of the nature and seriousness of the allegations to be proved, with the result that the Tribunal must be "comfortably satisfied" that the allegations are made out on the balance of probabilities.
3. In Bradshaw v McEwans Pty Limited (1951) 217 ALR 1, the High Court said that where direct proof is not available "it is enough if the circumstances appearing in evidence give rise to a reasonable and definite interference: they must do more than give rise to conflicting inferences of equal degrees of probability so that the choice between them is a mere matter of conjecture".
4. In Marshall v Prescott [2015] NSWCA 110 at [83], Beazley P (as her Excellency then was), with the concurrence of Macfarlan and Emmett JJA, agreed with that observation. That observation is relevant for present purposes, although it is to be remembered that it arose in the context of proceedings in which the standard of proof did not require proof on the balance of probabilities in the "Briginshaw sense".
5. The evidence to which we have referred suggests that the Practitioner's visits were to some extent in a social capacity, to some extent in a professional capacity and, although without clinical indication, were not entirely devoid of a clinical connection, at least in the sense suggested by Dr D. The evidence, particularly of Patient B's treating team at RPA, and to a lesser extent of Dr D, suggests that the nature of the Practitioner's visits to Patient B had elements of each of those matters. On any view of the evidence, the frequency of the Practitioner's visits to Patient B was disproportionate to any professional or clinical purposes of such visits.

Particular 2 of Complaint 3

1. Particular 2 of Complaint 3 alleged that: "During the second RPA admission Patient B requested that the practitioner arrange for a solicitor to attend RPA for the purpose of assisting him with his Will and the practitioner arranged for a private solicitor, Solicitor C, to attend RPA which was inappropriate in that: (a) Solicitor C had assisted the practitioner's father with his Will so there was potential for a conflict of interest; (b) the request for legal assistance from Patient B ought to have been either: (i) referred to Patient B's treating health practitioners at RPA; (ii) referred to the NSW Trustee and Guardian."
2. It is not in issue that Solicitor C, to whom we shall refer as Person C, had previously done work for the Practitioner's father, or that the Practitioner facilitated Person C's initial attendance upon, and introduction to Patient B.
3. The Commission's case, as the submissions on its behalf make clear (at par 44), was encapsulated in the evidence of Dr Christie that the Practitioner was guilty of unsatisfactory professional conduct by: "Arranging the services of [Person C] to act as a solicitor for [Patient B] in the redrafting of the Will. In the s 150 interview and in his response to the Commission, Dr Alexakis indicates that [Patient B] had been requesting a solicitor to alter his Will over a period of 12 months. Dr Alexakis had correctly identified (according to his response to the Commission) that [Patient B] could access appropriate legal assistance through the Office of the Trustee and Guardian. Dr Alexakis was therefore aware of this, and it would have been appropriate for him to refer [Patient B] to the office directly himself if he held immediate concern. I note also that, at the time [Person C] was engaged through Dr Alexakis, [Patient B] was an inpatient at RPAH. If he felt it necessary to act in any, Dr Alexakis should have raised his concern around the need to immediately engage a solicitor with the treating team (in the same manner in which he requested a neuropsychiatric assessment), so that the treating team could arrange for a solicitor from the Office of the Trustee and Guardian to attend [Patient B]. It was inappropriate for Dr Alexakis to arrange for a specific solicitor, known to him personally, to attend [Patient B] whilst an inpatient at RPAH for the purpose of redrafting his [W]ill. …" (Exhibit HCCC1, Tab 15 p 11) And: "… I believe Dr Alexakis and [Patient B] understood their relationship to be a doctor-patient relationship throughout the period January 2014 - October 2017. In the latter part of this period, Dr Alexakis overstepped appropriate professional boundaries through several actions, including: … arranging a specific solicitor to provide legal advice to [Patient B] in the redrafting of his Will." Thereby failing: "… to identify and maintain appropriate professional boundaries … thereby falling significantly below [the standard] expected of a senior GP …." (Exhibit HCCC1, Tab 15, p 13)

Consideration

1. Dr Christie's suggestion that this issue is not "black and white" was appropriate. There is no doubt that the Practitioner arranged for Person C to attend upon Patient B, potentially for the purpose of preparing a Will for Patient B. The Practitioner did facilitate Patient B having a capacity assessment for the purposes of preparing a Will. The evidence does not establish that his doing so was for the purpose of preparing Patient B to make a Will in which the Practitioner hoped that he would be named as a beneficiary. If that had been the Practitioner's intention, a capacity assessment of Patient B would have been counter-intuitive - Patient B may have been found to lack testamentary capacity. If, as transpired, Patient B was found to have capacity, the potential for his testamentary intentions to be unconscionably influenced was likely to be diminished.
2. In theory, there was the potential for the Practitioner having a conflict of interest by reason of Person C having done legal work for the Practitioner and other members of his family. The evidence does not reveal that that legal work had any actual or potential connection with any legal affairs of Patient B. Save with respect to the Practitioner subsequently becoming a beneficiary of Patient B's Will, which he did, which gives rise to other particulars with which the Tribunal will engage, there is no identification of the potential for a conflict of interest between the Practitioner and Patient B at the time and in the circumstances in which Patient B was introduced to Person C. Patient B may have declined to retain Person C. After conferring with Patient B, Person C may have declined to accept his instructions. The Practitioner had no control over either of those matters. We are not comfortably satisfied that the Practitioner's potential conflict of interest at the time he introduced Person C to Patient B was sufficiently likely to support the finding sought by the Commission. In our view, the potential conflict was no more than a "remote possibility". In these proceedings, it needed to be probable: Tillmans Butcheries Pty Ltd v Australasian Meat Industry Employees' Union (1979) 42 FLR 331; [1979] FCA 132.
3. The evidence of the Practitioner with respect to suggesting the names of private solicitors and of the Public Trustee, and Patient B's response to it, cannot be rationally rejected. Nor can the evidence of prior requests for the name of a solicitor made by Patient B of the Practitioner in 2016, and to Dr D in 2015. The evidence of Mr Myhill suggests that, in the situation in which the Practitioner found himself, particularly having regard to the questions which Patient B asked him, and the circumstances in which he did, although not "usual" the Practitioner's response was not so unusual as to advance this particular. It is not insignificant that each of the courses which Dr Christie suggested that the Practitioner should have pursued either was, or had previously been pursued by the Practitioner. Short of simply refusing to assist Patient B, it is difficult to suggest what more the Practitioner could have done, or have done differently.

Particular 3 of Complaint 3

1. Particular 3 alleged that: "Towards the end of Patient B's second RPA admission the practitioner failed to observe proper professional boundaries with RPA and Concord Hospital staff in that: (a) he frequently telephoned [Dr E] about Patient B's health; (b) on or around 14 June 2017 he telephoned [Dr E] and advocated that Patient B return home on gate leave for the purpose of arranging his finances; (c) on or around 21 June 2017 he telephoned [Dr E] and stated that: (i) she was taking too long to arrange Patient B's discharge; (ii) Patient B ought to have 24 hour nursing care at home by staff from Concord Hospital; (d) on or around 18 June 2017 he telephoned [Dr D] on at least two occasions and requested that Patient B be transferred from RPA to Concord Hospital under her care; (e) on or around 22 June [2017] the Practitioner sent two text messages to [Dr E] regarding Patient B."
2. The Practitioner did not deny the substance of the conversations relied upon in support of this particular, or the dates on which those conversations occurred, but vigorously denied that his conduct amounted to unsatisfactory professional conduct. The evidence of fact relating to this particular is that of Doctors D and E. The expert evidence is that of Dr Christie.
3. The submissions of the parties identify, and engage with, the evidence by reference to which this particular falls to be determined.
4. The Commission relied (at par 48) on the evidence of Dr Christie who said (at Exhibit HCCC1, Tab 13 p 13) that: "Good communication between the GP and inpatient treating team is essential to the smooth transition from hospital-based to home-based care. I note that communication between Dr Alexakis and the hospital team was initiated both by Dr Alexakis and by members of the hospital treating team. The extent of Dr Alexakis's communication through numerous telephone calls and text messages is (in my view) well in excess of the communication required to facilitate appropriate care and handover. The communication as described was intrusive, inappropriate and occasionally aggressive or hostile. Given Dr Alexakis's overall patient load, this level of communication is surprising and cannot be justified under 'usual' or 'appropriate' clinical practice or patient advocacy. It should also be noted that in his statements to the s 150 investigation, Dr Alexakis described his 'friendship' with [Patient B] as developing 'after this time'."

Consideration

1. As its terms make clear, this Complaint is reliant upon the Practitioner's communications with two other specialist medical practitioners, one of whom was part of Patient B's treating team at RPA, the other of whom was not, during Patient B's second RPA admission.
2. Dr E referred (Exhibit HCCC1, Tab 9, par 8) to a telephone conversation with the Practitioner on 9 June 2017 and did not suggest or imply that he had then said anything inappropriate. Dr E noted (at par 11) the conversation with the Practitioner on 14 June 2017 when he was "quite persuasive in advocating for [Patient B] to return home on gate leave". Given that the Practitioner was not involved in treating Patient B at that time, whilst he could properly have asked questions of Dr E about her view, or the view of Patient B's treating team with respect to his possible returning home on gate leave, it was inappropriate for him to be, or attempt to be "persuasive", in his advocacy for Patient B to the extent that he did. In our view, the Practitioner impermissibly crossed the line between legitimate advocacy on behalf of the patient, which may have been helpful, and advocacy which had no such potential, was contrary to the patient's wishes, and amounted to unhelpfully trying to tell Patient B's treating professionals what to do.
3. Dr E referred (at par 12) to a telephone conversation with Dr D on 19 June 2017. Dr D informed Dr E of the Practitioner's two telephone calls to her on 18 June 2017 during which he had "'suggested' to her that [Patient B] be transferred to Concord under her care because Concord Hospital was able to organise 'private services' for [Patient B]". As recorded by Dr E (at par 13), and is not in dispute, when asked, Patient B advised the RPA treating staff that "he could not see any benefit in being transferred to Concord Hospital and he was happy to remain at the RPAH". On what basis the Practitioner advocated as he did with respect to a move to Concord has not been suggested by the Practitioner.
4. Dr E referred (at par 14) to the Practitioner's telephone call to her on 21 June 2017, during which he "said assertively that I was taking too long in the discharge planning" for Patient B and "recommended that [Patient B] have 24 hour private nursing care at home which … could be arranged at Concord Hospital". Dr E referred (at par 15) to text messages to her mobile telephone. Dr E attached screenshots of those texts to her statement. The Practitioner's complaints to Dr E during their telephone conversation on 21 June 2017 were inappropriate, as he should have recognised, and fell below the requisite standard. Asking relevant questions was one thing, trying to tell Dr E what to do was another. The only issue with respect to this conversation is whether the conduct fell significantly below the requisite standard.

Particular 4 of Complaint 3

1. Particular 4 alleged that: "Between 25 June 2017 and 5 October 2017 the practitioner failed to observe proper professional boundaries in that he: (a) conducted almost daily home visits (approximately 92) to Patient B in circumstances where at most, weekly home visits were clinically indicated; (b) regularly attended to dressings for Patient B that ought to have been performed by community nurses."
2. Although he did not dispute the number of home visits which he made to Patient B during the period referred to in this particular, or that he regularly attended to dressings for Patient B as the particular alleged, the Practitioner disputed that his conduct involved an absence of clinical indication, or involved any failure to observe proper professional boundaries.
3. Sensibly in our view, the parties adopted a "global" approach to the determination of this particular. In our view, if the Commission established that, on an overall basis, the home visits lacked clinical indications, the Practitioner's conduct would be found to have fallen below the requisite standard. The Tribunal would then have to determine whether it fell significantly below that standard.
4. In support of this particular, the Commission submitted (at par 57) that the Tribunal should reject the Practitioner's evidence that home visits to Patient B were "clinically required" and thus justified. It was further submitted that, even if Patient B "demanded the home visits, this would not justify them as clinically necessary, including if one effect of the visits was to reassure [Patient B] about his BSL (blood sugar level), or to slightly lessen the duration of the period he spent alone, where even with the Respondent's visits [Patient B] spent extended periods in excess of 12 hours alone, and more on weekends". We agree that the determination of this limb of the particular involves an objective evaluation of the extent, if any, to which, considered globally, the home visits were not clinically indicated.
5. We accept that the patient's perception of the need for or purpose of home visits by the Practitioner has no bearing on determining whether such visits were clinically indicated, although, in a Stage 2 hearing such matters may assume some significance. The reasonableness of the Practitioner's views with respect to the issue are relevant to our determination of the particular.

Consideration

1. It is to be remembered that the Commission bears the onus of proving this particular on the balance of probabilities to the comfortable satisfaction of the Tribunal. The contents of the handwritten clinical notes made by the Practitioner at or about the time of the home visits to which they refer have not been seriously or successfully challenged in these proceedings. Whatever their adequacy, the notes clearly record "clinical" matters.
2. As the evidence to which we have referred makes clear, the Practitioner may have attended upon Patient B more often than he needed to on medical grounds. As we have earlier recorded, this Complaint is not concerned with overservicing as such, or overcharging or matters of that kind. As the cross-examination of the Practitioner makes clear, the thrust of the case is that the Practitioner attended Patient B at home as regularly as he did for an entirely different reason to that suggested by the Practitioner, namely to preserve or enhance his prospects of being "in the Will" of Patient B, and not because doing so was clinically indicated. As we have recorded elsewhere in these reasons, it has not been established that the Practitioner knew at any time prior to Patient B's death that he was in his Will. Nor has it been established that the Practitioner believed or expected that he was, or would be, "in the Will" of Patient B. Whether he should have anticipated that, in the circumstances of his relationship with Patient B, that was likely, falls to be considered in the context of other particulars.
3. Inherent in this particular, although not expressly so articulated, is the proposition that, in circumstances where it has not been shown that so doing was intended to, or had a financial benefit by way of the payment of fees, a medical practitioner should be criticised for giving a patient with serious medical issues in the dying stages of his life more care than other practitioners might have given or than might strictly have been necessary. This involves another "grey area", although, ultimately, for the reasons which follow, we do not need to attempt to define its meets and bounds.
4. The Practitioner gave his evidence with respect to these issues in a candid and open manner. He made admissions and concessions which were appropriate with respect to his attendances, and did not seek to rationalise them. He did not seek in his oral evidence to magnify the nature or significance of the services which his clinical notes suggest that he provided. To the extent that, to someone in Patient B's circumstances, the Practitioner may have been seen by him as a friend would not, in the absence of more, warrant criticism of the services which the Practitioner provided.

Particular 5 of Complaint 3

1. Particular 5 alleged: "Between 25 January 2017 and 5 October 2017 the Practitioner billed Medicare on approximately 33 occasions for long consultations (Level B, C or D) with Patient B which was inappropriate in that: (a) weekly home visits, approximately 18 consultations, were clinically indicated; (b) long consultations were not justified given the low level of clinical complexity."
2. The Practitioner did not dispute that he had billed Medicare on approximately 33 occasions for consultations with Patient B, but maintained that only 21 of those were long consultations (Level B, C or D), and that 12 were standard consultations. The Practitioner's Medicare claims history is found at Exhibit HCCC1, Tab 41.
3. Dr Christie's opinion (Exhibit HCCC1, Tab 13, p 13) was that the Practitioner's conduct fell significantly below the requisite standard, as his billing was "inappropriate, given the item numbers billed (all long consultations) and the documented level of medical intervention required in the majority of these 33 occasions of service". Dr Christie's view was that up to 18 of the Practitioner's visits "may have been clinically warranted; but this is a [sic] difficult to draw a firm conclusion given the extent and nature of the medical notes provided by Dr Alexakis relating to this period of time". Dr Christie was "in no doubt that Dr Alexakis did not provide 33 long consultations over this period (as identified and defined in the medical benefits schedule) and that therefore by definition the behaviour represents overservicing".
4. The Practitioner relied on the provisions with respect to palliative care, and the "Palliative approach" articulated in the RACGP aged care clinical guide (Silver Book) (Exhibit R1, Tab 5) in support of his defence to this particular, inferentially suggesting that, overall, the long billings which he had recorded were clinically indicated and justified.
5. The Practitioner said in his original statement dated 3 June 2022 (Exhibit R2, pars 152-153) that he considered billing Medicare on approximately 33 occasions had been "appropriate" and, accurately, that he "did not bill [Patient B] every time I went to see him". The Practitioner asserted that "[w]hile a lot of consultations were long and complex, others were not. I felt that due to the frequency of the visits, that I was adequately remunerated for the care I was providing [Patient B]". Although not in so many words, the Practitioner seemed to imply that, on balance, overall, his billings fairly represented his clinical times with Patient B.

Particular 6 of Complaint 3

1. Each of particulars 6(a), 6(b), 6(c) and 6(d) turn on the same facts and circumstances. Those particulars provided: "6(a) The practitioner engaged in the conduct set out in particulars 1 and/or 2 in order to financially benefit by being named as a beneficiary in Patient B's Will, and was so named as a beneficiary in the Will executed by Patient B on 8 June 2017. 6(b) The Practitioner engaged in the conduct set out above at particulars 3 and/or 4 to discharge his obligations under an agreement entered into with Patient B on or around 13 June 2017, to the effect that if the Practitioner: (i) assisted Patient B to be discharged from RPA and return to his home; and/or (ii) cared for Patient B at home, the practitioner would be retained as a beneficiary in any existing Will or named as a beneficiary in any future Will, and was so named in the Wills executed by Patient B on 8 June 2017 and 10 July 2017. 6(c) In the alternative to 6(b) above, the practitioner engaged in the conduct set out at particular 3 and/or 4 in order to financially benefit by being named as a beneficiary in Patient B's Will, and was so named in the Will executed by Patient B on 10 July 2017. 6(d) Further or in the alternative to 6(a), 6(b) and/or 6(c) the practitioner stood to obtain a financial benefit by being named as a beneficiary of Patient B's Will, where being named as a beneficiary derived from the doctor/patient relationship between the practitioner and Patient B."
2. As is not in doubt, the Practitioner was named as a beneficiary in the Wills made by Patient B on 8 June 2017 and 10 July 2017. It is not in doubt that Patient B had the capacity to make each of those Wills. The circumstances in which Patient B came to meet Person C, who prepared and witnessed each of his Wills, are not in doubt. The evidence of Person C with respect to the making of the Wills, which the Tribunal accepts, establishes that how the Wills were prepared and executed is also not in doubt.
3. The basis of the Commission's case was cogently articulated in its primary submissions (pars 62ff). Much of the evidence which is relevant to these particulars has been referred to in determining earlier particulars. It is appropriate before considering the competing contentions to have regard to the evidence of Person C with respect to the making and execution of Patient B's Will.
4. A file note by a Commission investigator dated 20 May 2019 (Exhibit HCCC 1, Tab 10B) recorded an interview that day with Person C at Person C's office. Amongst other things, the note recorded that Person C said that Patient B was "sharper than people half his age". In an Affidavit sworn in proceedings in the Supreme Court with respect to Patient B's Wills on 19 December 2019, Person C set out the circumstances in which he came to meet Patient B on 6 June 2017 in a ward at RPA.

Dr Christie's evidence with respect to this issue

1. Dr Christie considered the Practitioner's conduct with respect to the execution of Patient B's Wills to be inappropriate and significantly below the standard required of him. Dr Christie referred (Exhibit HCCC1, Tab 13, p 12ff) to the Practitioner's awareness of the ability of Patient B to "access appropriate legal assistance through the Office of the Trustee and Guardian" and considered that it "would have been appropriate for him to refer [Patient B] to the Office directly himself if he held immediate concern". Our earlier benign findings with respect to this topic are relevant in the context of these particulars.
2. Dr Christie further said that, at least at the time of the execution of Patient B's first Will, as Patient B was an inpatient at RPAH, the Practitioner "should have raised his concern around the need to immediately engage a solicitor with the treating team (in the same manner in which he requested a neuropsychiatric assessment), so that the treating team could arrange for a solicitor from the office of the Trustee and Guardian to attend [Patient B]". Dr Christie considered that it "was inappropriate for [the Practitioner] to arrange for a specific solicitor, known to him personally, to attend [Patient B] while an inpatient at RPAH for the purpose of redrafting his Will." Our earlier benign findings with respect to this topic are relevant in the context of these particulars.
3. Dr Christie referred to the Practitioner's assertion that he was "unaware" of the contents of the Will, or the terms of any Will of Patient B, until after the latter's death. Dr Christie considered that "unlikely … as it would be highly unusual for a solicitor to recommend that a Will be drafted appointing an Executor who was unaware of their appointment as executor, or of the detail of the Will". Dr Christie relied upon a publication by the NSW Trustee and Guardian titled "A Guide to Executorship and Probate" which stated that "[b]eing the executor of a Will can be challenging. It is a job that requires financial, legal, taxation, and sometimes conflict resolution skills. It is important to appoint someone who has the ability to carry out the role, or consider a professional executor." With respect to him, Dr Christie's expertise did not entitle him to express legal opinions. Dr Christie's opinion was not suggested to Person C, who was better qualified to do so.

Particular 6(a)

1. It was submitted on behalf of the Commission (at par 62) that this particular "does not require there to have been any agreement between [Patient B] and the Respondent, but rather that the Respondent engaged in professional misconduct by ingratiating himself to him with [Patient B], with the express purpose of being named as a beneficiary in the new Will".
2. It is apparent that for this particular to succeed, the Commission must establish that the Practitioner "ingratiated" himself with Patient B, with the "express purpose of being named as a beneficiary in the new Will". The Commission relied (at par 63) on the Code of Conduct and in particular the requirement that medical practitioners recognise the "power imbalance in the doctor-patient relationship" and not "exploit" patients, amongst other things, financially.
3. The Commission further submitted (at par 64) in reliance upon the evidence there identified, that it was "apparent that the only area in which Dr Alexakis accepted a power imbalance arises in the doctor-patient relationship is in relation to the patient's health status".
4. The circumstances relied upon (at par 65) as establishing the particular were that the Practitioner: "(a) visited [Patient B] on most days after his admission to RPA on 26 May; (b) assisted in procuring a neuropsychological assessment of [Patient B], which whilst not the subject of complaint was a step in the direction of [Patient B] making a new Will; (c) made contact with his own solicitor and brought him to the hospital to meet [Patient B] for the purpose of making a new Will."
5. The Commission posed the question (at par 66) of whether the Practitioner's assertion "that he did not turn his mind to being named as a beneficiary in the Will" at this time, or at any time prior to his last telephone conversation with the Respondent at the end of October 2017 could be "believed". With respect to the Commission, as this particular asserts an intention on the part of the Practitioner, the critical question is whether the Tribunal is able to reject the Practitioner's denials, or find them sufficiently improbable, to enable the Commission to discharge its onus of proof. In these proceedings, it is not for the Practitioner to prove any of those matters. As will be seen, although the Tribunal has misgivings with respect to the level of insight the Practitioner had into the possible consequences of his relationship with Patient B, this particular asserts an intention on his part. Nothing emerging from cross-examination of the Practitioner or any circumstantial evidence to which the Tribunal has been referred renders us unable to reject, or regard as improbable, the Practitioner's evidence with respect to his asserted lack of intention, or anticipation with respect to Patient B's Wills.

Particular 6(b)

1. Pivotal to this particular is the assertion that the Practitioner made "an agreement" with Patient B on or around 13 June 2017 in the terms recorded in the particular. An essential term of the alleged agreement was the Practitioner being "retained as a beneficiary of any existing Will or named as a beneficiary in any future Will".
2. As we have earlier recorded, there is no evidence that "on or around 13 June 2017" the Practitioner knew that he was in any Will of Patient B. In those circumstances, and given that the Tribunal accepts that the Practitioner first became aware that he was named as a beneficiary in a Will executed by Patient B after Patient B's death in November 2017, at least part of the agreement alleged pursuant to this particular, that the Practitioner be "retained" in any existing Will, cannot be established. It remains to consider whether the alleged agreement to be named as a beneficiary in any future Will has been proven.
3. Although the particular alleged that the agreement was made on 13 June 2017, the Commission did not refer to anything which occurred on that date which, even inferentially, suggests that there had been any agreement between the Practitioner and Patient B in the terms of the particular. Of itself, that may not have been fatal to the success of the particular. Even if the matters referred to by the Commission (at pars 89-91) were accepted, they do not establish any express agreement between the Practitioner and Patient B with respect to the making of a Will, either in the terms of this particular or otherwise.
4. Understandably in circumstances where the Commission has not, and could not, plead an express oral agreement between the Practitioner and Patient B, the Commission relies on the conduct of the Practitioner and Patient B, and the circumstances in which it occurred, to establish an implied "agreement". To prove this particular, the Commission need not establish an agreement which a court of law or equity would consider binding on the Practitioner and Patient B, or which Patient B would have been estopped from denying. The focus of the Tribunal's evaluation is whether the evidence comfortably satisfies us that, irrespective of its legal status, or its absence, the Practitioner and Patient B made the alleged agreement.
5. The Commission relied significantly on the post- second RPA admission home visits by the Practitioner to Patient B to prove the alleged agreement (par 92). The Commission submitted (at par 93) that the Practitioner "proffered no explanation as to why, out of all the patients he provided services to, including palliative patients, he had engaged in conducted that involved developing a friendship with [Patient B]. An obvious answer to the objective observer is that the two men had agreed that he would devote himself in this way to [Patient B] in return for being named a beneficiary in the Will". To the extent that those propositions were put to the Practitioner in cross-examination, the Tribunal is unable to reject, or find improbable, either by reference to anything emerging from the evidence of the Practitioner himself, or any circumstantial or other evidence, the Practitioner's denials, and make findings in the terms urged by the Commission. The "objective observer" may or may not reach the conclusion urged by the Commission, but that is not sufficient to establish the particular.

Particular 6(c)

1. Particular 6(c), which was in the alternative to particular 6(b), alleged that the Practitioner engaged in the conduct set out at particulars 3 and 4 in order to financially benefit by being named as a beneficiary in Patient B's Will, and was so named in the Will executed by Patient B on 10 July 2017. Inherent in this particular is the Commission's contention that the circumstances comfortably establish the intention to benefit financially under Patient B's Will.
2. The Tribunal's findings with respect to particulars 3 and 4 inform the determination of this particular. The Commission relied (at par 96) on the evidence in support of particular 6(b), and its submissions in support of that particular. Although, having regard to the fact that particular 6(b) engaged with the Will executed by Patient B on 10 July 2017, the success of this particular would appear problematic, it is necessary to evaluate the particular in accordance with its terms and the evidence and submissions in support of it. As the submissions of the Commission made clear, the crux of the complaint was that the Practitioner "assisted" Patient B in the ways described in particulars 3 and 4 "with the aim of financially benefitting from the Respondent", which was submitted to constitute an "exploitation of the doctor-patient relationship" and to be "anathema to the high standards of conduct set out in the Code of Conduct". The Tribunal accepts that, as with particulars 6(a) and 6(b), if established, this conduct would constitute unsatisfactory professional conduct.
3. Between the date of Patient B's discharge from RPA on 26 June 2017 and the execution of his Will on 10 July 2017, the Practitioner visited him at home on 6, 7, 8, 9 and 10 July 2017. The conduct relied upon in support of this particular referred to telephone conversations between the Practitioner and other medical practitioners on 14 June, 18 June and 21 June 2017. It is difficult to see how anything said by the Practitioner during those conversations could advance this complaint.
4. The Commission again referred to the approximately 92 home visits to Patient B by the Practitioner between 25 June 2017 and 5 October 2017. Between 25 June 2017 and 10 July 2017, including a visit on 10 July 2017, the Practitioner visited Patient B at home on 5 occasions. Home visits subsequent to the execution of Patient B's second Will on 10 July 2017 were inferentially relied on in support of the inference that the Practitioner did so "in order" to preserve any benefit which he might receive under a Will of Patient B, or enhance his chances of doing so under any future Will.

Particular 6(d)

1. Particular 6(d) was relied upon further or in the alternative to particulars 6(a), 6(b) and/or 6(c), and alleged that the Practitioner stood to obtain a financial benefit by being named as a beneficiary of Patient B's Will, where being named as a beneficiary derived from the doctor-patient relationship between the practitioner and Patient B.
2. Given that the Practitioner disavowed that his relationship with Patient B was other than one of doctor and patient, and as there is no evidence establishing the contrary, or any other relationship which might have motivated Patient B's generosity to the Practitioner, his being named in the Will could arguably only have been referable to, and "derived from" the doctor-patient relationship between Practitioner and Patient B. Having regard to the asserted significance of those facts in terms of the Complaint, although essential for the particular to be established, they do not establish the particular.
3. In support of this particular, the Commission submitted (at par 97), in reliance upon Exhibit HCCC2, Tab 1 of its supplementary documents, that health practitioners in the public sector are prohibited from benefitting from patients' Wills. It was, fairly, conceded that as the Practitioner was not in the public sector, an outright prohibition did not apply, but was submitted that "the principles that no doubt lie behind this prohibition have powerful origins in the expectations of high standards of professional conduct of health practitioners". These were submitted to include: "(a) health practitioners are responsible for the health and welfare of their patients, which is inconsistent with benefitting from their death; (b) health practitioners are expected to treat all patients equally - the promise of a gift through a bequest distorts the neutrality of equal treatment of patients; (c) the relationship between doctors and patients has a power imbalance in it. Patients look up to doctors, rely on doctors to provide them with appropriate treatment and treatment options, and share intimate details of their physical, mental and emotional health with doctors. It would be easy for unscrupulous practitioners inappropriately to influence or prevail upon patients to provide financial benefits for them in their will. It behooves health practitioners actively to avoid placing themselves in a position where any imputation of undue influence can arise. The reputation of the profession depends upon it."

Particular 7 of Complaint 3

1. Particular 7 alleged that: "Between 20 September 2017 and 5 October 2017, the practitioner failed to arrange an interim transfer of care for Patient B to another medical practitioner at the practice which ought to have been done as soon as possible once the Practitioner became aware of the nature of the complaint on 21 September 2017."
2. It is not in issue that, on 21 September 2017, police attended at the Practitioner's surgery and spoke to him in relation to the concerns which had been raised by members of Patient B's medical team at RPA (Exhibit HCCC1, Tab 54). The statement made by police with respect to the interview recorded that the Practitioner "stated that whilst [Patient B] was in hospital he would make regular visits. During each visitation [Patient B] would express the need to get out of hospital due to the need to make business arrangements".
3. The police notes proceeded to record the Practitioner's statement that "he was not aware of being a beneficiary on the Will of [Patient B], nor did he know of any other beneficiaries; this being consistent with the version provided by [Patient B]".
4. The Police report recorded other matters which the Practitioner was said to have stated. The report concluded: "There was zero elements of criminality detected through police enquiries and therefore this matter was finalised for any further investigations/enquiries to be made by police. Dr ALEXAKIS has been advised that although police have concluded their enquiries, he may hear from the HCCC in relation to any departmental enquiries they wish to made/conduct. Dr ALEXAKIS has been informed that these enquiries have nothing to do with the police, and that they are independent from those enquiries already made by police."
5. The Practitioner does not suggest that the police statement inaccurately recorded, or failed to record, anything said during the interview with him by police on 21 September 2017.
6. The Commission asserted that, as and from that time, the Practitioner was obliged to cease to be Patient B's treating medical practitioner, and to have been obliged to arrange an interim transfer of Patient B's care to another medical practitioner. That contention is not controversial.
7. In his first report (Exhibit HCCC1, Tab 13), Dr Christie said (at p.14, question 11) that, according to his clinical notes, the Practitioner continued to provide care until a "'handover' of sorts to the palliative care service" occurred on 5 October 2017, but that the notes did not "indicate any articulation of a plan to facilitate a handover of care to another GP, or to assist [Patient B] to find another GP between 21 September and 5 October".

Particular 9 of Complaint 3

1. Particular 8 was abandoned in the Commission's Further Amended Application. Particular 9 alleged that: "The Practitioner failed to seek professional advice with respect to the management of his relationship with Patient B at any time prior to becoming aware of the 21 September 2017 complaint."
2. Dr Christie said in his second report (Exhibit HCCC1, Tab 15, p 13 question 3) that the Practitioner: "should have recognised that he was violating appropriate professional boundaries at some point between [Patient B's] admission on 6 May and some point in the first part of July 2017, by which time his home visiting had become excessive, and his involvement was outside of generally-accepted involvement for a general practitioner. Having identified this, Dr Alexakis should have sought professional advice into the management of his relationship with [Patient B], and (if unable to alter the nature of the relationship) Dr Alexakis should have arranged a handover to a different general practitioner at that time."
3. The Commission submitted in support of this particular (at par 104) that as a health practitioner who was subject to the Code of Conduct and "expected to uphold high ethical standards, the Respondent might be expected to face ethical dilemmas from time to time. For the public to have confidence in the medical profession, practitioners must recognise those occasions when outside assistance might be required."
4. The Commission submitted that the Practitioner claimed that he "engaged in certain conduct at the behest of [Patient B] - including withholding information from the treating team at RPA, introducing [Patient B] to his own personal solicitor, and attending daily to take [Patient B's] blood sugar levels". It was further submitted that, "[a]t the same time the Respondent knew that [Patient B] was redrafting his Will, and by not charging Medicare for every home visit the Respondent knew that he was attending more often than was clinically justified". It was thus submitted that there were "several red flags that should have been apparent to the Respondent at the time - and not simply with the benefit of hindsight - that should have caused the Respondent to seek out external advice regarding his ongoing care of [Patient B]" and that such failure indicated a "significant ethical blind spot" which amounted to unsatisfactory professional conduct.

Particular 10 of Complaint 3

1. Particular 10 asserted that: "The practitioner failed to transfer the care of Patient B to another general practitioner at any time prior to 4 October 2017."
2. The evidence of Dr Christie, to which we have earlier referred in detail, identifies the circumstances which, in his opinion, required the Practitioner to either, paraphrasing Dr Christie, cease to be Patient B's "friend" and confine his dealings with Patient B to a doctor-patient relationship, or if he wished to continue his "friendship" with Patient B, terminate the doctor-patient relationship, at the latest, by the time of Patient B's second RPA admission.
3. The Tribunal's determination of the specific criticisms of the Practitioner upon which this particular is based are significant. In support of the complaint, it was submitted by the Commission (at par 105) that cross-examination of the Practitioner revealed that he did not "fully disclose the circumstances of his own daily home visits to [Patient B] to the general practitioners at his own practice". It was submitted also to be apparent that the Practitioner "understood how the palliative care team operated, and that the involvement of a palliative care doctor would not equate to daily visits". It was further submitted that if the Practitioner "generally believed" that Patient B required daily home visits from a general practitioner on a clinical basis, it exacerbated the "seriousness of his abandonment of [Patient B] without finding a general practitioner to take on his care".
4. The Commission further submitted that it was "difficult to reconcile the Respondent's insistence that nothing less than his daily attendance on [Patient B] would suffice, and his being complicit in [Patient B's] refusal to embrace the use of home nursing care and palliative care services, with his decision to cease his own visits and abandon [Patient B] to exactly those same services".
5. In response, the Practitioner submitted (at par 167) that, for the complaint to succeed, the Tribunal would have to make a finding that the Practitioner was "conflicted in his care" of Patient B.
6. The potential success of this particular is impeded by the rejection of the particulars which materially underpin it. In our view, on the evidence before the Tribunal, this particular involves a "grey area" of medical practice. Pivotal to Dr Christie's opinion was a binary approach to the relationship between the practitioner and Patient B - "doctor" or "friend". The evidence before the Tribunal does not establish that the Practitioner and Patient B were ever "friends", although they could be said to have been on friendly terms. The fact that there was more than what might be a purely doctor-patient relationship did not mean that there was a friendship between the two men. Attempting to define what the relationship was, if that be possible, is unnecessary for present purposes. It is sufficient to find that the basis of Dr Christie's opinion, the existence of a friendship, has not been established. That implies no criticism of Dr Christie, who was necessarily asked to make certain factual assumptions, which the evidence has not established.

Complaint 4

1. Complaint 4 alleged that: "The Practitioner is guilty of unsatisfactory professional conduct under section 139B(1)(b) of the National Law in that the Practitioner has contravened: (i) a provision of the Medical Practice Regulation (NSW) 2008 (now repealed) ("the Regulation 2008"); (ii) the Health Practitioner Regulation (NSW) Regulation 2010 (now repealed) ("the Regulation 2010"); (iii) the Health Practitioner Regulation (NSW) Regulation 2016 (now repealed) ("the Regulation 2016")."
2. The background for Complaint 3 was repeated and relied upon by the Commission in support of this Complaint. The particulars of Complaint 4 alleged: "1. Between approximately January 2014 and 31 August 2016 the Practitioner contravened clause 1 of Schedule 2 of the Regulation 2010 in that he failed to adequately document the following in Patient B's medical records: (a) a management plan; (b) results of any findings made in relation to treatment provided. 2. Between approximately 1 September 2016 and 4 October 2017 the Practitioner contravened clause 1 of Schedule 4 of the Regulation 2016 in that he failed to adequately document the following in Patient B's medical records: (a) a management plan; (b) results of any findings made in relation to treatment provided."
3. The Commission submitted that each particular in itself justified a finding of unsatisfactory professional conduct but that, in the alternative, when two or more particulars of the Complaint are taken together a finding of unsatisfactory professional conduct is justified.
4. In support of this Complaint, the Commission referred (at par 106) to the requirements of the Health Practitioner Regulation (NSW) Regulation 2016 that: 6 Records relating to patients (1) A medical practitioner or medical corporation must, in accordance with this Part and Schedule 4, make and keep a record, or ensure that a record is made and kept for each patient of the medical practitioner or medical corporation.
5. Schedule 4 to the Regulation records the specific requirements, which include that records must include the results of treatment (cl 1(4)(f)) and sufficient information to allow another doctor to continue the management of the patient (cl 3(2)). The Commission submitted, correctly, (at par 108) that "earlier iterations of the Regulation were in similar terms".
6. As the Commission made clear (at par 109), this Complaint comprises two parts. The first referred only to medical records from consultations at the practice which were made on a computer and were submitted to have "limited information regarding the management of [Patient B's] many comorbidities, and do not record in what way results of pathology tests are used to change and maintain existing treatments". The second part of the Complaint was submitted (at par 110) to relate to consultation records from 1 September 2016 to 4 October 2017 and to encompass practice records in which "the same deficiencies can be found" and the handwritten records that were not maintained at the practice but which the Practitioner took home with him throughout the period of home treatment.

Complaint 5

1. Complaint 5 alleged that the Practitioner was guilty of professional misconduct pursuant to s 139E of the National Law in that the Practitioner has: "i. engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration, and/or ii. engaged in more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify the suspension or cancellation of the practitioner's registration."
2. The Commission relied on the background to Complaints 1 and 3 in support of this Complaint. The particulars of the complaint alleged: "1. Complaint 1 particulars 5 and 6 and Complaint 3 particulars 1 to 6, and 8 to 10 are repeated and relied upon individually. 2. Complaints 1, 2, 3 and 4 and the particulars thereof are repeated and relied upon cumulatively."
3. In support of this Complaint, the Commission referred (at par 117) to the decision of the Court of Appeal in Hampshire v Health Care Complaints Commission [2021] NSWCA 283 ("Hampshire") in which the Court of Appeal accepted, at [47], the statement by Basten JA in Chen v Health Care Complaints Commission [2017] 95 NSWLR 334; [2017] NSWCA 186 at [20] that there was: "no category of unsatisfactory professional conduct which is not capable, depending on the circumstances, of giving rise to professional misconduct and hence engaging the power of either suspension or cancellation of registration. The only requirement is that it be 'sufficiently serious' to justify such an order, a characterisation which must depend upon an evaluative judgment made by the Tribunal. Some, perhaps all, categories include conduct which may reveal a defect of character as to which the Tribunal may conclude that the person should not be allowed to practice his or her profession unless at some future date the practitioner is able to satisfy the Tribunal that the defect has been overcome. Incompetence or inadequate care may in some circumstances be remediable by specific steps; in other circumstances the Tribunal may be concerned that the carelessness, for example, is such as to cast doubt on the suitability of the person to practise medicine. Each of the criteria for cancellation or suspension may be analysed in this way. Each case will depend upon an evaluative judgment to be made by the Tribunal as to the nature and seriousness of the conduct. It follows that the legislative scheme is inconsistent with the implication of the abstract condition."

Postscript

1. Shortly prior to the delivery of the Tribunal's decision, the Registry was advised by the parties that the Supreme Court had delivered its judgment in the proceedings involving Patient B's Will(s) in which the Practitioner was a party, which was reserved when the hearing of these proceedings concluded. Neither party suggested that the Tribunal should receive the Supreme Court's judgment. The Registry informed the parties that the Tribunal would not receive, or otherwise read or rely upon the Supreme Court's judgment.

Orders 1. The Practitioner is guilty of unsatisfactory professional conduct. 2. The Practitioner is guilty of professional misconduct. 3. The proceedings are to be listed for hearing to determine the orders which are necessary to protect the health and safety of the public.

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: 10 July 2023