Health Care Complaints Commission v Bello - [2024] NSWCATOD 147 - NSWCATOD 2024 case summary — Zoe

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Health Care Complaints Commission v Bello

[2024] NSWCATOD 147

NCAT Occupational|2024-08-20

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NCAT Occupational

Decision date

2024-08-20

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Original judgment source is linked above.

Judgment (20 paragraphs)

[1]

REASONS FOR DECISION

By an Application and Complaint filed on 16 April 2024, the Health Care Complaints Commission (the HCCC) seeks an Order cancelling Dr Bello's registration as a medical practitioner pursuant to the Health Practitioner Regulation National Law (NSW) (the National Law).
Leave was given to the HCCC to rely on an Amended Complaint filed on the first day of this Inquiry.
It is common in this jurisdiction for a Complaint against a medical practitioner to be determined in two stages. All issues other than the making of any protective Orders are determined by the Tribunal after a Stage 1 hearing. The parties are then given the opportunity to adduce additional evidence in relation to the appropriate protective Orders (if any) before the Complaint is relisted for a second, Stage 2, hearing. An Order had previously been made for this matter to proceed as a Stage 1 hearing. However, on the application of the parties, we made an Order the effect of which is that this proceeded as a Stage 1 and Stage 2 hearing and we are to determine all issues.

[2]

Outline of the Complaint

The Amended Complaint identifies four separate Complaints made against Dr Bello. The second and third Complaints are asserted to be unsatisfactory professional conduct on the part of Dr Bello. In summary: 1. Complaint One - On 14 December 2022 Dr Bello was found guilty of possessing a prohibited drug. 2. Complaint Two - Dr Bello failed to notify the National Board, within 7 days, that he had been charged with one count of possessing a prohibited drug, that he had been charged with one count of sexually touching another person without consent and that he had been convicted of one count of sexually touching another person without consent. 3. Complaint Three - Dr Bello breached professional boundaries with a patient. We have made an Order suppressing the name of that patient who has been referred to as patient A in these Reasons. 4. Complaint Four - That Dr Bello is guilty of professional misconduct by reason of the conduct in Complaint Three.

[3]

Dr Bello

Dr Bello obtained his Doctor of Medicine from Far Eastern University in the Philippines in 1990. He was first registered in New South Wales as a medical practitioner in April 2004. From 2004 to 2019, he was employed by NSW Health as a full-time medical practitioner.
The conduct which has led to several of the Grounds in the Amended Complaint occurred on 4 November 2019 while Dr Bello was patient A's treating doctor during patient A's attendance at Fairfield Hospital, and their interaction on the following day.
After his interaction with Dr Bello, patient A attended at Kogarah Police Station on 5 November 2019 and made a statement.
On the next day, 6 November 2019, police officers executed a search warrant at Dr Bello's home. They found two bottles of liquid sex lubricant on the dresser table. They also found three vials of Golden Dragon anabolic steroids in the bedroom.
Two charges were laid against Dr Bello on the same day. Those charges are the subject of Complaint Two.
On 7 November a police officer made a complaint about Dr Bello to the HCCC. That complaint has led to this Inquiry.
On 8 November 2019 the HCCC made an own motion Complaint after becoming aware of patient A's allegations in a newspaper.
The Medical Council decided to convene proceedings pursuant to s150 of the National Law to determine whether action should be taken in relation to Dr Bello's registration for the protection of the health or safety of the public. On 22 November 2019 Dr Bello's registration was suspended.
The two charges the subject of Complaint Two were heard in the Local Court on 17 and 18 March 2021. On 31 May 2021 Dr Bello was convicted of both offences and sentenced to an Intensive Correction Order (ICO) for 18 months.
Dr Bello appealed from the convictions in the Local Court. On 14 December 2022 the District Court: 1. upheld the appeal from the conviction for sexually touching another person without consent. The conviction and sentence imposed by the Local Court was quashed. 2. upheld the appeal from the conviction for possessing a prohibited drug. Dr Bello was found guilty but dealt with pursuant to s 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999 NSW so that the charge was dismissed without conviction.
Dr Bello then sought a review of the s150 decision to suspend his registration. On 1 May 2023 the suspension was lifted and conditions were placed on Dr Bello's registration. Those conditions are set out in full in Annexure A to these Reasons.
Dr Bello has not practised medicine in Australia since the suspension of his registration in 2019. At the time of this hearing he was living in the Philippines and caring for his mother. He gave evidence before us by AVL.

[15]

Complaint Three Particular 1(c) - masturbating patient A

Initially Dr Bello denied that any sexual activity occurred with patient A.
When the police came to his home on 6 November 2019, Dr Bello told them that he had sat next to patient A on the couch for about fifteen or twenty minutes during which he told patient A to take his medication and then patient A left.
In the ERISP Dr Bello conceded that patient A had lain down on his bed but denied that any sexual activity had occurred.
At the s 150 Dr Bello said he had physically examined patient A's lymph nodes in his groin and palpated his penis and his testicles.
In the Local Court Dr Bello said that they had both been sitting on the couch in the lounge room when patient A squeezed his own crotch with one hand and Dr Bello's thigh with the other and asked to be examined again. Dr Bello told him there was no need for another examination but patient A asked him to double check.
Patient A then took his shoes, pants and underwear off. Dr Bello said he thought that patient A "wanted to have a sexual activity" with him. Patient A took his hand and led him into the bedroom. Patient A lay on the bed and Dr Bello sat next to him and massaged the upper part of patient A's penis for a while. Patient A then saw a tube of lubricant on the bedside table and instructed Dr Bello to use it. Dr Bello said he put a little bit on the shaft of patient A's penis. Dr Bello said that at this stage he told patient A that he was not very comfortable with continuing and he stopped, got a towel, cleaned patient A's penis and went back to the lounge room and sat down. He said patient A came out of the bedroom and wiggled his penis in front of his face but then got dressed. After a short conversation, patient A gave him a hug and left.
Dr Bello admits that while patient A was at Dr Bello's home on 5 November 2019, he masturbated patient A as patient A laid on his bed.
Further Dr Bello was aware that his conduct was unethical. He told the Local Court that, at the time, he was scared and anxious because he knew he had crossed the ethical boundaries between a doctor and a patient and was worried that his registration might be revoked by the Medical Council for engaging in sexual activity with a patient.
We are satisfied that Dr Bello's conduct was clearly an improper and unethical breach of professional boundaries.
We find Dr Bello guilty of unsatisfactory professional conduct in respect of Complaint Three Particular 1(c).

[16]

Complaint Four

The HCCC asserts that Dr Bello is guilty of professional misconduct under s 139E of the National Law in that he has: 1. engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of his registration, and/or 2. 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.
The conduct relied on is the conduct in Complaint Three.
In Chen v Health Care Complaints Commission (2017) 95 NSWLR 334 at [19]-[20], Basten JA (Leeming JA at [23] agreeing) said: "... The term ''professional misconduct" does not have a specific meaning; it is merely a category of "unsatisfactory professional conduct" which is sufficiently serious to justify suspension or cancellation. ... There is 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."
In Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 the New South Wales Court of Appeal (Gleeson CJ, Meagher and Handley JJA) at [638] said in relation to professional misconduct: "The gravity of professional misconduct is not to be measured by reference to the worst cases, but by the extent to which it departs from the proper standards."
In assessing the seriousness of the conduct we take into account that we are of the view that the evidence establishes that Dr Bello had formed a sexual interest in patient A commencing at the time he treated patient A in the hospital.
We have already referred to this issue in our consideration of Complaint Three Particular 1. We have already recounted how Dr Bello said he gave patient A his mobile number because he felt they had a rapport, Dr Bello said he was "sort of" interested in patient A and patient A had asked to be friends. Dr Bello told us that at the hospital there had been a bit of attraction.
When they next met on 5 November 2019, after patient A had driven to Dr Bello's home, Dr Bello said that after he got into patient A's car, patient A had squeezed his thigh. Dr Bello concluded that patient A wanted something personal or sexual. When he was asked "Did you like that idea?" he replied "Well, I'm only human, so yeah". He said he was flattered and aroused sexually. He felt that patient A was starting to seduce him.
It is accordingly clear that from the time Dr Bello gave his telephone number to patient A while patient A was his patient, he should have been aware that he should respect the professional boundaries between doctor and patient. Instead he gave his mobile number and then his address to patient A. He then led patient A upstairs when he believed from patient A's conduct in the car that there was a sexual attraction between them.
Patient A was a vulnerable patient who had received treatment in hospital from Dr Bello for a possible sexually transmitted infection.
Dr Bello's conduct with patient A was an exploitation of the power imbalance between them and a significant departure from accepted professional and ethical standards. It is sufficiently serious to justify suspension or cancellation of his registration. In arriving at this finding we take into account the following matters as indicators of the serious nature of that conduct, as set out in "Guidelines: Sexual Boundaries in the doctor-patient relationship" published by the Medical Board of Australia on 12 December 2018: 1.1 Trust Trust in the relationship between doctors and patients is a cornerstone of good medical practice. Sexual misconduct is a serious abuse of that trust. Patients have a right to feel safe when they are consulting a doctor. Patients need to trust that their doctor will act in their best interests, treat them professionally, not breach their privacy and never take advantage of them. Exploitation of the doctor-patient relationship undermines the trust that patients have in their doctors and the community has in the profession. It can cause profound psychological harm to patients and compromise their medical care. 2. Why breaching boundaries is unethical and harmful Doctors are expected to act in their patient's best interests and not use their position of power and trust to exploit patients physically, sexually, emotionally or psychologically. Breaching sexual boundaries is always unethical and usually harmful for many reasons including: Power imbalance: The doctor-patient relationship is inherently unequal. The patient is often vulnerable and in some clinical situations may depend emotionally on the doctor. To receive healthcare, patients are required to reveal information that they would not reveal to anyone else and may need to allow a doctor to conduct a physical examination. A breach of sexual boundaries in the doctor-patient relationship exploits this power imbalance. Trust: Patients place trust in their doctor. They have a right to expect that examinations and treatment will only be undertaken in their best interests and never for an ulterior, sexual motive. Safety: Patients subjected to sexual behaviour from their doctor may suffer emotional and physical harm. Quality: A doctor who sexualises patients is likely to lose the independence and objectivity needed to provide them with good quality healthcare. Public confidence: Members of the community should never be deterred from seeking medical care, permitting intimate examinations or sharing deeply personal information, because they fear potential abuse.
We find Dr Bello is guilty of professional misconduct.

[17]

Protective Orders

The HCCC seeks orders cancelling Dr Bello's registration and prohibiting him from reapplying for registration for three years.
Dr Bello seeks orders permitting him to practise with the same conditions on his registration as were imposed on 1 May 2023 after the s150A hearing.
We have found Dr Bello guilty of professional misconduct and therefore the range of protective orders which can be made includes suspension or cancellation of his registration (s 149C(1)(b) of the National Law).
However the fact that we have found that Dr Bello's conduct was of a sufficiently serious nature to justify suspension or cancellation of his registration does not mean it must be suspended or cancelled.
The purpose of disciplinary orders is protective rather than punitive. (Litchfield, supra at 637).
The protection of the health and safety of the public is a guiding principle of the national registration scheme (s 3A of the National Law) and, in making our decision, must be the paramount consideration (s 3B of the National Law).
In Health Care Complaints Commission v Do [2014] NSWCA 307 at [35] the Court held: The objective of protecting the health and safety of the public is not confined to protecting the patients or potential patients of a particular practitioner from the continuing risk of his or her malpractice or incompetence. It includes protecting the public from the similar misconduct or incompetence of other practitioners and upholding public confidence in the standards of the profession. That objective is achieved by setting and maintaining those standards and, where appropriate, by cancelling the registration of practitioners who are not competent or otherwise not fit to practise, including those who have been guilty of serious misconduct. Denouncing such misconduct operates both as a deterrent to the individual concerned, as well as to the general body of practitioners. It also maintains public confidence by signalling that those whose conduct does not meet the required standards will not be permitted to practise.
In Director-General, Department of Ageing, Disability and Home Care v Lambert [2009] NSWCA 102 at [83] the Court held: As is well-established in the disciplinary jurisdiction generally, including with respect to legal and medical practitioners, the specific purpose for which orders are made is protective in the public interest and is not punitive with respect to the individual … That is not to deny that such orders may be punitive in effect…Nor does it necessarily follow that punitive effects may not be relevant in formulating a protective order. … Further, the punitive effects may be directly relevant to the need for protection. Thus, in a particular case, there may be a factual finding that the harrowing experience of disciplinary proceedings, together with the real threat of loss of a livelihood may have opened the eyes of the individual concerned to the seriousness of his or her conduct, so as to diminish significantly the likelihood of its repetition. Often such a finding will be accompanied by a finding that the person concerned has achieved a level of insight into his or her own character or misconduct, which did not previously exist.
As to the setting of a period in which an application for re-registration is prohibited, the Tribunal in Health Care Complaints Commission v Luque [2019] NSWCATOD 129 noted at [94]: The setting of a non-review period is not to punish the practitioner but to protect the public. NSW Court of Appeal jurisprudence has indicated that the fixing of a period of non-review has a 'twofold operation' in that it firstly indicates a minimum period within which the Tribunal considers the person should not be able to practise their profession, thus serving both an individual and general deterrence purpose by sending a message to the practitioner, the public and the profession about professional standards and the seriousness of the breach; and secondly it holds open to the practitioner the possibility of return to the profession at a later time: Chen v HCCC [2017] NSWCA 186; HCCC v Do [2014] NSWCA 307.
However, any protective orders made by the Tribunal should not result in "more serious consequences for the practitioner than is reasonably necessary in execution of the protective purpose of the legislation" (NSW Bar Association v Meakes [2006] NSWCA 340 at [114]).
In determining the appropriate protective Orders we have taken the following matters into account: 1. Our findings as to the seriousness of Dr Bello's conduct in relation to his conduct in relation to patient A when we determined Complaints Three and Four. 2. On the one hand this is the only Complaint which has been made against Dr Bello. On the other hand, Dr Bello conceded that he knew, at the time, that the ethical Rules governing the practice of medicine prohibited a sexual relationship with a patient. Despite this knowledge he did not proactively end his engagement with patient A, instead he allowed their relationship to continue and develop over many hours - he could have refused to give patient A his mobile number at a time when he thought they had a "connection", he could have refused to give patient A his home address and declined to meet him during the morning of 5 November 2019, he could have refused to let patient A come upstairs to his home and, lastly, he could have refused to take part in any sexual activity with patient A. 3. Patient A was a vulnerable patient who had received treatment in hospital from Dr Bello for a possible sexually transmitted infection. 4. A boundary violation is an abuse of the doctor-patient relationship. It undermines the trust and confidence of patients in their doctors and of the community in the medical profession and can cause significant and lasting harm to a patient. 5. Other practitioners are entitled to see the standards of their profession upheld. 6. We do not consider that Dr Bello has shown any meaningful insight into the harm his behaviour could cause to a person in the position of patient A, nor has he shown any remorse. We accept the submission made by counsel for the HCCC that Dr Bello's explanation of the events often sought to cast blame on the patient and infer that he, Dr Bello, had been powerless to resist the advances made by patient A. Dr Bello used language such as the patient being "very persistent", and "insistent" and "that things went very fast". He described patient A as "instructing" him during the incident in the bedroom. When he was asked what effect he thought his behaviour would have had on patient A, he replied that probably patient A felt the same as he did. He then said it had been his bad decision but his kindness had been abused. We consider that Dr Bello's lack of insight poses a significant risk of harm to the health and safety of the public. 1. Our orders must have an element of deterrence so that other health practitioners will be aware of the consequences of inappropriate behaviour in their professional and private lives. 2. Dr Bello did attend a psychologist as a consequence of the Local Court ICO and he found this helpful. On 24 March 2023 he obtained a CPD Certificate of Completion for a course titled "How to ensure a similar mistake or misconduct will not be repeated in the future" after attending online for 1.5 hours. He has not undergone any counselling or done any courses since then. 3. Dr Bello relies on three character references prepared in April 2023. A nurse at Camden Hospital who has known him for 20 years said that he was a much-loved doctor when he worked at that hospital. She considers him to be a kind, caring, generous man with strong family ties and always ready to be a friend to people. A friend who had then known Dr Bello for three years, knew him to be a good, hard-working man who gave 100% and was highly respected in the Philippine community. Another friend, who has known Dr Bello since 2004, said that he is dedicated, kind and professional and she has never doubted his integrity as a doctor who puts his patients first. She thinks Dr Bello is sometimes too caring which has obviously caused him to get into trouble. 1. Dr Bello would like to return to work as a doctor in Australia and expressed an interest in working as a general practitioner in areas of need in rural or regional NSW. However he has conceded that he is not GP trained so he would have to first undergo this training. In addition, counsel for Dr Bello did not explain how Dr Bello could comply with the proposed conditions on his registration if he was working remotely.
Taking into account the need for the protection of the health and safety of the public, the seriousness of the conduct, the need for general deterrence, maintenance of confidence in the medical profession and the necessity to give Dr Bello an opportunity to complete the journey into gaining full insight, we have decided to cancel his registration.
Cancellation of Dr Bello's registration means that, at the expiration of the period of cancellation, Dr Bello must re-apply for registration and, inter alia, show that he has addressed the issues giving rise to the cancellation and should be permitted to resume practice. The period of cancellation also must be an appropriate consequence for his behaviour.
Pursuant to s 149C(7) of the National Law, Dr Bello may not apply for a review of the Order cancelling his registration for a period of 18 months from the date of this decision.

Health Care Complaints Commission v Bello

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