Health Care Complaints Commission v Athour

THE COMPLAINT

1. When the proceedings began, the applicant filed, with the consent of the respondent, an amended complaint. It is in the form following: AMENDED COMPLAINT The Health Care Complaints Commission of Level 13, 323 Castlereagh Street, Sydney NSW, having consulted with the Medical Council of New South Wales in accordance with sections 39(2) and 90B(3) of the Health Care Complaints Act 1993 and section 145A of the Health Practitioner Regulation National Law (NSW) ("the National Law") HEREBY COMPLAINS THAT Dr Zeitoun Athour ("the practitioner") of 1/118 Ware Street Fairfield NSW 2165, being a medical practitioner registered under the National Law, COMPLAINT ONE Is guilty of unsatisfactory professional conduct under section 139B(1)(a) and (l) of the National Law in that the practitioner has: 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; and/or ii. engaged in improper or unethical conduct relating to the practice or purported practice of medicine. BACKGROUND OF COMPLAINT ONE The practitioner, originally from Turkey, completed his Bachelor of Medicine in 1987 at Freie University of Berlin. The practitioner migrated to Australia in 1988 and obtained registration as a medical practitioner in New South Wales in 1996. The practitioner held various hospital positions in Queensland and New South Wales prior to commencing in general practice in 1999. In 1999 the practitioner commenced working as a general practitioner at the Fairfield Chase Medical Centre (Fairfield Chase). It was while employed at Fairfield Chase that the practitioner first had contact with Patient A, who attended on him for a medical consultation. The practitioner continued to work at Fairfield Chase and Patient A continued to attend on him at this practice for medical consultations, up until June 2003. When the practitioner left Fairfield Chase in 2003 and moved to the Ware Street Medical Centre in Fairfield, Patient A followed him to that practice. Between 2003 and the present time, the practitioner has worked at various medical practices and clinics in the Sydney area, providing a range of medical services including as a general practitioner, sedationist and methadone prescriber. The practitioner also undertook occasional locum work at general practices in country New South Wales during the period 2004 to 2010. In 2007 the practitioner commenced working at the Plus 1 Medical Centre in Fairfield, where he continues to work as a general practitioner. The practitioner also commenced working at the Barbara Street Clinic in Fairfield in 2007 where he continues to work on a part time basis as a methadone prescriber. From 11 May 2011 the practitioner was subject to conditions imposed on his practice by the Medical Council of NSW pursuant to Section 150 of the National Law. From 14 March 2014 these conditions were replaced by conditions imposed by the NSW Civil and Administrative Tribunal (NCAT) which include a restriction that he work only in an approved group practice and a requirement that his practice is subject to supervision. PARTICULARS OF COMPLAINT ONE 1. The standard of care provided by the practitioner to Patient A throughout the period 18 April 2002 to 27 June 2003 was inadequate in that he prescribed Schedule 8 drugs of addiction including morphine sulphate, Endone and MS Contin to Patient A on multiple occasions: a) without obtaining a thorough history; b) without conducting an appropriate physical examination; c) without conducting appropriate investigations; d) without first trialling simple analgesics such as paracetamol and non-steroidal anti-inflammatory drugs; e) without conducting appropriate clinical review; f) without appropriate clinical indication; g) without recording his rationale for doing so; and h) without recognising or taking action with respect to Patient A's drug dependence. 2. The standard of care provided by the practitioner to Patient A throughout the period 18 April 2002 and 27 June 2003 was inadequate in that he prescribed Schedule 4 and Schedule 4D medications including Panadeine Forte, Capadex, Tramadol. Valium, Temazepam and Oxazepam to Patient A on multiple occasions: (a) without obtaining a thorough history; (b) without conducting an appropriate physical examination; (c) without conducting appropriate investigations; (d) without conducting appropriate clinical review; (e) without appropriate clinical indication; (f) without recording his rationale for doing so; and (g) without recognising or taking action with respect to Patient A's drug dependence; and (h) without seeking an authority to continue prescribing drugs of addiction to Patient A in accordance with Section 28 of the Poisons and Therapeutic Goods Act 1996. 3. The practitioner inappropriately prescribed a combination of Schedule 8 and Schedule 4D drugs in excessive quantities to Patient A throughout the period 18 April 2002 and 27 June 2003 in circumstances where: (a) he failed to properly investigate the cause of Patient A's pain (b) he failed to refer Patient A to a rheumatologist and/or a pain specialist; (c) he failed to conduct a thorough mental health review of Patient A or seek psychiatric advice; (d) he failed to make relevant inquiries to determine if Patient A was drug seeking or receiving prescriptions from another practitioner; (e) he failed to develop a long-term management plan to ensure Patient A did not become drug dependent; and (f) he failed to adequately follow up investigations and referrals. 4. During the latter half of 2002 and while Patient A's treating general practitioner, the practitioner inappropriately commenced a personal and sexual relationship with Patient A. 5. From the latter half of 2002 until approximately March 2004 or until such time as the practitioner left Australia and travelled to Turkey, the practitioner carried on a personal and sexual relationship with Patient A which included: (a) sexual contact including on multiple occasions having sexual intercourse at the Fairfield Chase Medical Centre. (b) visits on multiple occasions to Patient A's home including for the purpose of sexual contact; and (c) Patient A visiting the practitioner's home on multiple occasions including for the purpose of sexual contact. 6. Between 2005 and approximately July 2013, the practitioner inappropriately conducted an occasional sexual relationship with Patient A which included: (a) sexual contact at Patient A's home; (b) sexual contact at a hotel; (c) sexual contact in a hotel carpark; and (d) sexual contact in the carpark area of a licensed club. 7. From time to time between 2005 and July 2013, the practitioner inappropriately supplied Schedule 8 and Schedule 4D medications to Patient A including Morphine tablets, Endone, Oxycodone, Promethazine injections, Valium, Effexor and Zoloft and which were not supplied in accordance with a prescription and the packaging did not contain a patient label. 8. From time to time between 2005 and July 2013, the practitioner inappropriately supplied Schedule 8 and Schedule 4D medications including Endone, Promethazine injections, Valium, Tramal and Zyprexa to Patient A's carer, Person B, for Patient A's use and which were not supplied in accordance with a prescription and the packaging did not contain a patient label. 9. Between 1 January 2012 and 1 September 2013, the practitioner failed to maintain appropriate professional boundaries by using his own personal mobile phone service for contact of a personal nature with Patient A on her mobile phone service on approximately 225 occasions. 10. During the period 2005 to July 2013 the practitioner failed to maintain appropriate professional boundaries in that he transferred several cash deposits from his personal bank account to Patient A's personal bank account, which deposits totalled several thousand dollars, and were made by way of a "donation" or "gift" to Patient A. 11. During the period 2005 to July 2013 the practitioner failed to maintain appropriate professional boundaries by: (a) paying Patient A's TAFE enrolment fee in June 2007; (b) giving Patient A a substantial sum of money to purchase a car; (c) giving Patient A a substantial sum of money to pay for an abdominoplasty procedure; (d) giving Patient A gifts of perfume, jewellery and flowers; (e) accepting gifts from Patient A; (f) visiting Patient A during her admission to the Liverpool Mental Health Unit on at least two occasions in 2010; and (g) attending a concert with Patient A on 20 September 2012. COMPLAINT TWO Is guilty of unsatisfactory professional conduct under section 139B(1)(b) and (l) of the National Law in that the practitioner has: i. contravened the Medical Practice Regulation 1998 (repealed); ii. contravened the Medical Practice Regulation 2003 (repealed); iii. contravened the Medical Practice Regulation 2008 (repealed); iv. contravened the Health Practitioner Regulation (New South Wales) Regulation 2010;and v. engaged in improper or unethical conduct relating to the practice or purported practice of medicine. BACKGROUND TO COMPLAINT TWO As for Complaint One. PARTICULARS OF COMPLAINT TWO From the period 18 April 2002 to 27 June 2003 the practitioner failed to keep adequate medical records for Patient A in that he: (a) failed to record an adequate medical history; (b) failed to record an adequate psychosocial history; (c) failed to keep adequate consultation notes; (d) failed to adequately record his treatment rationale; (e) failed to adequately record referrals to specialists; (f) failed to adequately record follow up of investigations and referrals; (g) failed to make a record of home visits; (h) failed to make a record of medications supplied to Patient A from his doctor's bag; and (i) failed to make a record of medications supplied to Patient A's carer, Person B, for Patient A's use. 2. From the period 2005 to July 2014 the practitioner failed to keep adequate medical records for Patient A in that he: (a) failed to keep any record of home visits, hospital visits or other visits with Patient A during which medical advice was offered, medications were supplied or her welfare was discussed; and (b) failed to keep any record of telephone contact with Patient A in which medical advice was offered or her welfare was discussed. 3. From the period 2005 to July 2014 the practitioner failed to keep adequate medical records for Patient A in that he: (a) failed to keep any record of medications supplied to Patient A; and (b) failed to keep any record of medications supplied to Person B for Patient A's use. 4. By his conduct at Particulars 1 the practitioner contravened clause 13 and Schedule 2 of the Medical Practice Regulation 1998 (repealed). 5. By his conduct at Particulars 2 and/or 3 the practitioner contravened the following: (a) Between 2005 and 28 August 2008, clause 5 and Schedule 2 of the Medical Practice Regulation 2003 (repealed); (b) Between 29 August 2008 and 30 June 2010, clause 4 and Schedule 1 of the Medical Practice Regulation 2008 (repealed); (c) Between 1 July 2010 and July 2014, clause 7 and Schedule 2 of the Health Practitioner Regulation (New South Wales) Regulation 2010. 6. By his conduct at Particular 3, the practitioner contravened the following: (a) Between 2005 and 31 August 2008, section 55 of the Poisons and Therapeutic Goods Regulation 2002 (repealed) with respect to failing to keep a record of supply of Schedule 4 and 4D medications; (b) Between 2005 and 31 August 2008, section 111 of the Poisons and Therapeutic Goods Regulation 2002 (repealed) with respect to failing to keep a record of supply of Schedule 8 medications; (c) Between 1 September 2008 and July 2014, section 56 of the Poisons and Therapeutic Goods Regulation 2008 with respect to failing to keep a record of supply of Schedule 4 and 4D medications; and (d) Between 1 September 2008 and July 2014, section 111 of the Poisons and Therapeutic Goods Regulation 2008 with respect to failing to keep a record of supply of Schedule 8 medications. COMPLAINT THREE Is guilty of professional misconduct under section 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, 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 BACKGROUND TO COMPLAINT THREE As for Complaint One. PARTICULARS OF COMPLAINT THREE Complaints One and Two and the particulars thereof are repeated and relied upon both individually and cumulatively.
2. As earlier noted, in a statement made on 14 November 2015 (RX1), in oral evidence before us and through his counsel, the respondent has admitted he is guilty of unsatisfactory professional conduct under Section 139B(1)(a) of the National Law and under Section 139B(1)(b) and (l) of the National Law and is guilty of professional misconduct under Section 139E of the National Law. Some of the particulars contained in the complaint are not admitted and these will be considered shortly. However, the great bulk of them have been admitted by the respondent and he has acknowledged that he is liable to suffer deregistration as a medical practitioner.
3. It is put on his behalf, however, that rather than suffering cancellation of registration, as submitted by the applicant, he should be reprimanded, fined and sustain a suspension of his registration for a period of six months and thereafter have registration subject to conditions for a period of 12 months.

NATURE OF THE PROCEEDINGS

1. Before considering the disputed particulars and the evidence in relation to them, it is appropriate to remind ourselves that these proceedings are not punitive but protective. Because the complaints made are grave we are required to achieve a reasonable satisfaction that they have been made out (see Briginshaw v Briginshaw (1938) 60 CLR 336 esp at 362 363). The concessions made by the respondent in evidence and through his counsel satisfy us that the required onus has been established and the concessions are justified by the evidence.

ADMISSIONS OF THE RESPONDENT

1. It is generally conceded that over a long period the respondent prescribed drugs of addiction to Patient A without obtaining a thorough history, without conducting appropriate physical examination, without conducting appropriate investigation, without first trialling analgesia, without conducting an appropriate clinical review, without appropriate clinical indications, without recording his rationale for doing so and without taking action with respect to Patient A's dependence. It is also admitted that he failed properly to investigate the cause of Patient A's pain, that he failed to refer her to a pain specialist, that he failed to conduct a mental health review or seek psychiatric advice, failed to make relevant inquiries, failed to develop a long-term management plan to ensure Patient A did not become drug dependent and failed to follow up investigations and referrals.
2. An inappropriate personal and sexual relationship is also admitted, as is the failure to keep and maintain proper records and to make proper inquiries.
3. It is admitted that the respondent failed to maintain appropriate professional boundaries in that he made several deposits of cash from his personal bank account to Patient A's account amounting to several thousand dollars by way of donation or gift. It is also admitted that he paid for Patient A's enrolment in a TAFE course, paid for the purchase of a car and paid for her abdominal surgery.

NON-ADMISSIONS OF THE RESPONDENT

1. In respect of Complaint One, particulars 5 (a), 6(a), 7, 8 (save in respect of Zyprexa in 2013), 11(d) (save in respect of an item of "fake jewellery"), 11(e) and 11(g) (other than in respect of the date) are not admitted.
2. In respect of Complaint Two, particular 2 was not admitted, neither was particular 3 (except in relation to samples of Zyprexa), particular 6(a) was not admitted, neither was particular 6(c) other than in respect of Zyprexa. Particular 6(d) was not admitted.
3. Complaint Three accuses the respondent of professional misconduct and the complaint repeats the particulars in respect of Complaints One and Two, and, in respect of these particulars, the respondent makes the same admissions, and the same responses in respect of those not admitted in Complaints One and Two.
4. Thus, the respondent admits to the majority of the particulars constituting Complaints One, Two and Three.

RELIABILITY OF EVIDENCE

1. It is necessary to consider the evidence called by both the applicant and the respondent in order to determine which is more reliable and what we might properly conclude from such evidence and which of the particulars have been established.
2. In the witness box we thought some of the respondent's answers to be evasive, and, in failing to admit some of the particulars, some of his responses were inconsistent with his statement and his instructions to the solicitors whom he first instructed to act for him in relation to the complaints now being considered. There was an inconsistency, for example, in his admitting to sexual relations with Patient A in her home on many occasions, and in denying that he had sexual relations with her at her home. He was evasive in denying that he had sexual relations with Patient A in his own home on several occasions and later admitting to having had sexual relations with her at his home on two occasions. His instructions to his initial solicitors were denials of some complaints subsequently admitted, or equivocations.
3. We think it significant that the respondent was slow to acknowledge the nature of his relationship with Patient A, that he did not divulge the difficulties he was having with Patient A to either his Medical Council of New South Wales appointed supervisor or to his mentor, and that he had not discussed any of these difficulties with his GP colleagues or in his group practice. He found no such difficulty in discussing them with his psychologist, Ms Vestegul Tungandame, as she noted in her report of 24 November 2015 (RX6). This was acknowledged by him at the time of his first consultation with her in February 2015, though denied before 17 December 2013 when his then solicitors wrote to the applicant denying much of the misconduct alleged in the complaint. While there were some corrections made by the respondent to matters alleged in his statement (RX1), there were also inconsistencies between it and his evidence and some corrections were made only in the course of cross-examination. Whilst not of themselves profoundly significant, they do affect the degree of reliability we can attach to his evidence.
4. It is the case that Patient A did maintain a more consistent account through her several written complaints and in her oral evidence before the Tribunal. However, her oral evidence was not given in person but by audio visual link through a device called Skype. Whilst giving evidence, she was in a hotel room in Melbourne and whilst it was possible to see and hear her reasonably clearly, it was apparent that there was another person in the room who, on occasion, was seen to approach her and speak with her. On several occasions she was reminded that it was she who was giving evidence, and no person other than she was to speak in answer to questions. Notwithstanding that direction, it was not fully complied with.
5. Nevertheless, Patient A was more consistent in her account of events and more emphatic in her responses than was the respondent. On some matters, we prefer the evidence of Patient A to that of the respondent and on others we are reluctant to accept Patient A's evidence unless corroborated. Some of Patient A's evidence was corroborated by Person B, who once was married to Patient A and, after a second marriage, became her carer at a time when she was experiencing mental health difficulties. Person B gave his evidence by telephone link between Australia and Santiago in Chile and it was not possible for us to form an impression of his reliability by viewing him. He was, nevertheless, emphatic in his responses in relation to time and occurrence and unshaken in cross-examination.
6. We would be able to come to a conclusion based solely upon the complaints which have been admitted. However, because a number of the particulars of complaints have not been admitted, it is appropriate that we express a view upon them. We shall now consider the complaints not admitted seriatim.

PARTICULARS PROVED OR NOT PROVED

1. Particular 5(a): Sexual contact, including on multiple occasions having sexual intercourse at the Fairfield Chase Medical Centre. This was strongly asserted by Patient A in her written material and in her oral evidence. The respondent strongly denied this assertion and did so with some passion. There was no corroboration of this complaint and we are unable to conclude that it has been made out.
2. Particular 5(c): Patient A visiting the practitioner's home on multiple occasions including for the purpose of sexual contact. Again, this was strongly asserted by Patient A in her written complaints and in her oral evidence. It was denied by the respondent. On this, the evidence of Person B, by inference, gives some support. He spoke of leaving the home on occasion and of seeing the respondent there wearing the lower half of his pyjamas. It should also be noted that "multiple" in the complaint was intended to be used in the sense of, on more than one occasion, not "many" as its ordinary meaning suggests. We are satisfied that the respondent did have sexual contact with Patient A at her home on more than one occasion.
3. Particular 6(a) alleges sexual contact at Patient A's home between 2005 and approximately July 2013. To a similar extent, this evidence was corroborated by Person B and we are satisfied that this allegation has been made out.
4. Particular 7: From time to time between 2005 and July 2013, the practitioner inappropriately supplied Schedule 8 and Schedule 4D medications to Patient A, including Morphine tablets, Endone, Oxycodone, Promethazine injections, Valium, Efexor and Zoloft and which were not supplied in accordance with a prescription and the packing did not contain a patient label. This complaint was asserted by Patient A in her written complaints and in her oral evidence, but strongly denied by the respondent. The supply of Promethazine is corroborated by Person B, and other of his evidence, both oral and in his statement (AX3), establish that drugs were made available to Patient A, but the identity of each cannot be established though there were discussions between Patient A and Person B. We think it probable that Schedule 8 and Schedule 4D drugs were supplied to Patient A, but when and in what quantity we are unable to say.
5. Particular 8: Between 2005 and July 2013, the practitioner inappropriately supplied Schedule 8 and Schedule 4D medications including Endone, Promethazine injections, Valium, Tramal, Zyprexa to Patient A's carer, Person B, for Patient A's use and which were not supplied in accordance with a prescription and the packaging did not contain a patient label. This particular is denied other than in relation to the supply of Zyprexa in 2013. We make the same observations in respect of this particular as we made in respect of particular 7 and are satisfied that some drugs were made available to Patient A, though when and in what quantity we are unable to say.
6. Particular 11: During the period 2005 to July 2013 the practitioner failed to maintain appropriate professional boundaries by: (d) giving Patient A gifts of perfume, jewellery and flowers. We have previously noted that the respondent admits giving a gift of "fake jewellery" to the respondent, but otherwise denies the particular. We do not regard the allegation as adding anything requiring our consideration.
7. The same may be said in respect of particular 11(e): accepting gifts of wine from Patient A and attending a concert on 20 September 2012 when the respondent admitted attending a concert on 7 October 2012.
8. Complaint Two is one of unsatisfactory professional conduct. The respondent admits that he is guilty of unsatisfactory professional conduct.
9. Particular 2(a) is one of failing to record an adequate medical history. Whilst denied in his statement RX1, he admitted in evidence that he failed to do so.
10. Particulars 2(a) and 2(b) are as follows: From the period 2005 to July 2014 the practitioner failed to keep adequate medical records for Patient A in that he: 1. failed to keep any record of home visits, hospital visits or other visits with Patient A during which medical advice was offered, medications were supplied or her welfare was discussed; and 2. failed to keep any record of telephone contact with Patient A in which medical advice was offered or her welfare was discussed. We do not have in evidence any medical records, nor an explanation for the failure to produce and tender medical records and we are therefore unable to determine whether records of visits were kept. Nevertheless, the respondent admits the supply of two boxes of Zyprexa in 2013. Again, we would observe in the overall scheme of things, the proof or failure to prove this complaint will not make any material difference to our decision.
11. Particular 5 is: By his conduct at particulars 2 and/or 3 the practitioner contravened the following: 1. Between 2005 and 28 August 2008, clause 5 and Schedule 2 of the Medical Practice Regulation 2003 (repealed); 2. Between 29 August 2008 and 30 June 2010, clause 4 and Schedule 1 of the Medical Practice Regulation 2008 (repealed); and 3. Between 1 July 2010 and July 2014, clause 7 and schedule 2 of the Health Practitioner Regulation (New South Wales) Regulation 2010. In evidence, the respondent admitted particular 5(c). The regulations recited in paragraph 5 are also recited immediately following Complaint Two in respect of which the respondent has made an admission. We think this needs no further comment. We make the same observations in relation to failure to admit particulars 5(c), 6(a), (b) and (d) and again observe that whether these are established or not will not affect our ultimate decision.
12. It has been submitted by the applicant that we should have reservations about accepting the evidence of the respondent. This submission is based upon an initial response to a complaint made which was provided by solicitors then acting for him. Significant parts of the complaint were denied. The fact that admissions were made late is said to affect the credibility and reliability of each of Patient A and the respondent. Additionally, Person B, the former husband and later carer of Patient A, is said to corroborate some of the evidence of Patient A. For the respondent, it is submitted, that his evidence should be preferred because in his statement RX1 and in oral evidence he made admissions contrary to interest.
13. Our views on the reliability of the evidence of each have been expressed above in para 25.

THE NATURE OF THE RESPONDENT'S PROFESSIONAL MISCONDUCT

1. At all relevant times, the respondent was a registered medical practitioner who had dealings with Patient A, who actually treated her until his departure for Turkey in 2004. Upon his return to Australia, he continued to give her advice and he admitted providing Zyprexa to her in 2013. Before the first consultation they had not previously known one another. The respondent obtained access to Patient A, solely because of her presentation to him as a patient seeking medical treatment. The respondent's statement (RX1) admits commencing a sexual relationship with Patient A in June 2001 and continuing that relationship while he was her primary treating practitioner. Neither in RX1, nor in his oral evidence, is there any acknowledgement of an understanding that he caused harm to his patient. The furthest he went was to say that he regretted what he had done. He was unable to offer a proper understanding or explanation of his conduct towards her.
2. The Tribunal is not satisfied that following his return from Turkey in 2004 there was any material change in his conduct. He continued to maintain a relationship with Patient A which he said included elements of care for her health and mental wellbeing, and on at least one occasion, the supply of drugs. The sexual relationship continued, though perhaps with less frequency.
3. He continued a relationship which transgressed a medical practitioner's ethical boundary and was in conflict with his duty to Patient A. He sought to bypass these obligations by saying he was no longer her treating doctor.
4. It is significant that the respondent's evidence did not deal with his understanding or acknowledgement that his patient was a vulnerable person. She had discussed her marital problems with him early on in their relationship as doctor and patient. She disclosed a traumatic past to him and made him aware of her compromised state resulting from chronic pain. Nothing in his evidence indicated sufficient understanding of the potential for harm and actual harm caused to his patient in the course of conducting a sexual relationship with her.
5. As noted, that relationship began soon after he became her doctor and continued until 2013. The respondent was aware that the patient suffered psychiatric illness and acknowledged so in his evidence before us. He visited her when she was an inpatient in a psychiatric hospital at Liverpool and it seems that he had further contact with her either in person or by telephone when she was hospitalised in 2010. He was aware of the addiction illness she developed as a consequence of the medication he provided for her during the years he was her treating doctor and involved in a sexual relationship with her.
6. The respondent was aware of Patient A's addictive illness and of her recurring psychiatric illness over the period he continued a sexual relationship with her. Though he did admit sexual contact with her that continued until 2013, in evidence he differed about the location at which sexual contact occurred and about its frequency, not the fact.
7. In evidence, the respondent made no acknowledgement of the intrinsic power imbalance that exists between a doctor and patient in favour of the doctor. In RX1, he presented himself as a victim, preyed upon by his patient, who made threats that she would expose the sexual relationship that existed between them. He presented himself as the vulnerable party who was unable to deal with the threat posed by his patient. The on-going sexual relationship was explained by his need to appease the demands of his patient for fear that she would expose it to the medical authorities. While such a fear of exposure for an individual in the position and predicament of the respondent is understandable, the portrayal of his position as the victim in the doctor-patient relationship cannot be accepted. This is especially so when considering his account of how he became sexually involved with the patient in the first place and his reason for attending her home, consuming alcohol with her and engaging in sexual intercourse at the outset when the professional boundary was breached. The respondent's account of his conduct is devoid of acceptance of the primary responsibility of a doctor to maintain the professional doctor-patient boundary from the outset.
8. We were concerned by the respondent's deficient understanding of his professional responsibilities when he gave evidence. He acknowledged that it was not until 2015, when doing an ethics course from Monash University, which he did not complete, that he realised it was not acceptable for doctors to conduct social relationships with their patients as a matter of course,
9. His medical treatment of Patient A was unsatisfactory on his own admission and was inappropriate with addictive opiate medication and opiate-like medication, Pethidine and Tramadol, together with other sedative medications including Promethazine and benzodiazepines. The respondent acknowledged that each of these medications contributed to the drug dependency of Patient A.
10. As well as the inappropriate and harmful prescribing practices of the respondent, he conducted the medical management of his patient without satisfactory clinical assessment, note-keeping, diagnostic formulation and a management plan.
11. We are of the view that the standard of care must be viewed as reckless and harmful. We consider it to be of significance also that when the respondent referred Patient A to Dr O'Sullivan, no information concerning the existing sexual relationship with her was disclosed.
12. In the course of these proceedings, we were made aware of earlier disciplinary proceedings against the respondent and were provided with the decision and the reasons for the decision of the Medical Tribunal of New South Wales given on 20 December 2013. This document became AX8. Relevantly, and as earlier noted, those proceedings resulted in protective orders being made which permitted the respondent to continue practising subject to conditions. Those proceedings concerned complaints of the respondent's treatment of 14 patients who were heroin addicts, by rapid opiate detoxification. The Tribunal, differently constituted, was satisfied that the respondent engaged in more than one instance of unsatisfactory professional conduct and professional misconduct and that considered together, they amounted to conduct sufficiently serious to justify suspension or cancellation of his registration.
13. We would observe that the decision of the members of the Tribunal on that occasion goes to the need to protect patients. Nevertheless, we are conscious of the fact they form no part of the complaints we are considering here.
14. In the present case, we take into account the longstanding and persistent nature of the inappropriate sexual relationship conducted by the respondent with Patient A. His failure and inability to assume responsibility for the harm caused to Patient A, the compounding harm arising from drug dependence that developed because of his inappropriate and misguided medical treatment and the persistence in engaging in a sexual relationship with an addicted patient, in large part of his making, and with a patient suffering effects of acute, serious mental illness requiring involuntary hospitalisation, lead us to view his conduct as reckless, self-serving, indulgent, dangerous and indifferent to the needs of his patient. We view his conduct as reprehensible and perfidious.
15. In the course of his evidence, the respondent spoke of the difficulties he had in reaching an effective position of stopping the sexual relationship with his patient. He attributed his conduct to his inability to stand up to the patient and as a result of his fear of the consequences of not placating the patient.
16. The personal characteristics of the respondent were exhibited during the hearing and further commented upon by his treating psychologist who gave evidence before us.
17. We note the propensity of the respondent for conflict avoidance, passivity and procrastination in settings where it was incumbent upon him to seek assistance, resolve difficulties with patients and to address personal shortcomings that produced adverse outcomes.
18. The respondent's ability to take remedial action was limited by his lack of understanding of the basis of his misconduct. An absence of meaningful insight into his conduct and its consequences was evident from his statement and further emphasised during his responses in cross-examination. His lack of insight resulted in his blaming the patient for her actions, presenting himself as a victim of the patient's manipulations and accusing the patient of lies without addressing his conduct in continuing a sexual relationship with the patient until 2013.
19. We are of the view that the respondent remains insightless about this harmful clinical practice and his failure to preserve the clinical boundary with his patient in the matters for consideration by this Tribunal. We are, however, aware of the respondent's potential contribution to disadvantaged communities by way of his ability to speak many languages and to have cultural affinity for particular disadvantaged ethnic populations.
20. We are, nevertheless, also mindful of the vulnerabilities within these groups and the propensity of the respondent to involve himself with substance addicted individuals by way of being a methadone prescriber and that this forms a significant proportion of his practice. Additional exposure of vulnerable patients to the respondent as a result of their psychiatric and psychological impairment, and also those patients with a background of torture and trauma, suggest that the respondent deals with a particularly vulnerable group of patients where excellent clinical skills, together with well developed understanding and insight into the preservation of the boundaries of clinical practice, are required. We are of the view that he lacks understanding of the underpinnings to preserve clinical boundaries with his patients, and his serious misconduct in relation to a longstanding sexual relationship with a vulnerable patient is further cause for concern that the public protection issue regarding the respondent must be carefully considered.
21. In considering whether the respondent has demonstrated insight into the consequences of his conduct, we note that it was not until after he became aware that the applicant would be proceeding against him that he acknowledged his sexual relationship with Patient A to his psychologist, Ms Tungandame. His initial response through his then solicitors was to deny aspects of it, and he omitted to mention it to his mentor and to his supervisor. In her report RX6, Ms Tungandame wrote that the respondent "was able to gain insight as to why he normalised the non assertiveness and became tolerant and submissive to others". She spoke also of his shame and guilt and anxiety, and noted that "supportive counselling has helped him to reduce the frequency of severity of anxiety symptoms and take necessary means to address the issues he needs to address, instead of delaying or postponing them". She concluded that he "has learned from his wrongdoing . . . [and] it is very unlikely for him to commit a similar offense [sic] in the future".
22. The treatment provided by Ms Tungandame was in the nature of counselling, not clinical psychotherapy. It emerged from her report that in late November 2014 the respondent began seeing a psychiatrist, Dr Ishrat Ali. We have no report from Dr Ali, nor an explanation for the failure to call him, and assume therefore that his evidence would not assist the respondent's case.
23. We are not satisfied from the written and oral evidence of Ms Tungandame that the respondent has demonstrated insight into the consequences of his conduct. His insight concerned non-assertiveness and the reason he became tolerant and submissive to others.
24. Though it was said that the respondent was benefitting from psychological treatment, the engagement with his psychologist went no further than addressing his symptomatic distress as a result of his conduct the subject of these proceedings coming to light and his having to face the consequences of his misconduct.
25. The evidence demonstrates a lack of understanding of the professional and ethical requirements needed by a medical practitioner to practise safely and with the best interests of patients in mind. The evidence before the Tribunal, in our view, demonstrated a profound lack of insight on the part of the respondent, together with ignorance of the fundamental underpinnings of an ethical position that puts the interests of patients ahead of self-interest and gratification of a doctor.

WHAT ORDERS SHOULD BE MADE

1. The applicant seeks that the respondent's registration be cancelled and a limitation of five years be placed upon the time which must expire before he is eligible to seek a review of the cancellation order. As previously noted, the respondent submits that the appropriate order is suspension for a period of six months, together with a fine and reprimand. The respondent admits it would be appropriate on the expiration of the period of suspension that his registration be subject to certain conditions for a period of 12 months.
2. In determining what are the appropriate orders, we again remind ourselves that the jurisdiction of the Tribunal is protective not punitive (even though we may impose a fine). Our decision must be aimed at protecting the public.
3. In ex parte Lenehan (1948) 77 CLR 403, the High Court of Australia was considering the application for admission as a solicitor by a person who had been previously convicted of offences of dishonesty. The court referred to the situation of a solicitor who had been struck off but made an application for readmission. A majority of the Justices said at 422: When such a person applies for reinstatment he is in a more disadvantageous position than an original applicant because he must displace the decision as to probable permanent unfitness which was the basis of his removal.
4. Subsequent cases show there is a difference between a practitioner being "permanently unfit to practise" and "probable permanent unfitness" to practise at the time of the decision.
5. In this regard, it is helpful to look to the Court of Appeal decision in HCCC v Abou Hatoum & Anor [2004] NSWCA 30, where Meagher JA at [42] said: The claimant invoked the authority of the High Court decision of ex parte Lenehan [1948] HCA 45; (1949) 77 CLR 403, especially at 422, where it was said that a solicitor, in the particular circumstances of that case, was "permanently unfit" to maintain his name on the register. But it defies belief that this amounts to an authority justifying the view that any removal from the register must count as a finding of "permanent unfitness". This is particularly so when, as in this case, the Tribunal itself said to the contrary when it removed his name from the register, by expressly allowing him to apply for reinstatement after three years it disclaimed any belief in "permanent unfitness".
6. Assistance in identifying the principles we should apply is derived from the decision of the Court of Appeal in HCCC v Do [2014] NSWCA 307. It emerges from that case that the object of protecting the health and safety of the public is not confined to protecting the patients or particular patients of a particular practitioner. It includes protecting the public from similar misconduct of other practitioners and upholding public confidence in the standards of the profession. In denouncing serious misconduct, there is both a deterrent to the individual concerned as well as to the general body of practitioners. The maintenance of public confidence by signalling that those whose conduct does not meet the required standards will not be permitted to practise must also be given effect.
7. We have previously expressed our opinion of the conduct of the respondent. It continued over a long period of time and was conduct of the most grievous and serious kind. We are reasonably and comfortably satisfied that the continuing practise of the respondent would constitute a risk to the health and safety of the public.
8. We think the order appropriate is cancellation of the respondent's registration and we are of the view that he should not be eligible to seek a review of the order of cancellation for a period of three years, rather than a period of five years as submitted by the applicant.
9. We heard submissions on costs, and because of the failure of a witness to be available on the first day of hearing, in our view the appropriate order is that the respondent pay the applicant's costs of the proceedings, save for counsel's appearance fee and the Commission's solicitors attendance fee associated with one half day on 7 December 2015.
10. The orders are: 1. The practitioner's registration is cancelled. 2. The practitioner may not reapply for registration for a period of three years from the date of this decision. 3. The practitioner will pay the applicant's costs save for counsel's appearance fee and the solicitor's attendance fee one half day on 7 December 2015.

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: 14 January 2016