Health Care Complaints Commission v Bracco

Background

1. The practitioner was born in 1969. He is a married man and has one child. He obtained the degrees of Bachelor of Medicine, Bachelor of Surgery from La Sapienza University, Rome in 2000.
2. The practitioner migrated to Australia in 2000 and became an Australian citizen in 2009. On arriving in Australia he undertook studies in the English language. He initially engaged in work as an Assistant in Nursing and between 2003 and 2009 worked as a NSW Ambulance Officer.
3. In 2008 the practitioner completed the Australian Medical Council's clinical bridging program for international medical graduates and was first registered on 2 April 2009. He first worked in an area of need position at Broken Hill Hospital. During this period he was physically separated from his family.
4. In 2010 the practitioner obtained employment as a resident medical officer at Maitland Hospital and then John Hunter Hospital.
5. In 2010 the practitioner commenced to practise in a group general practice on the mid north coast. He continues to practise in that practice which is owned by the principal of the practice, Dr Christopher Murcott, an experienced general practitioner. The practice employs the practitioner on a full time basis and two other registered medical practitioners on a part time basis.
6. Patient A, who is now aged approximately 44 years, began attending the practice in October 2010. In 2012 she was employed by the practice as a part-time receptionist. She was dismissed from her employment immediately after her husband, Patient B, attended the practice and complained about the practitioner's behaviour.
7. Patient B commenced attending the practice in June 2012. Their son, Patient C, who was then a minor, began attending the practice in 2012. The practice medical records disclose that the practitioner treated Patient A on 13 occasions between 26 September 2011 and April 2014. The practitioner and Patient A's evidence is that her last consultation with the practitioner was on 21 December 2013, and that in April 2014 she was attended initially by the practitioner on an urgent basis when she suffered vertigo, but her care was immediately handed over to the female practitioner whom she consulted after December 2013. One other noted consultation was for a flu injection administered by the practice nurse. Prior to those consultations, Patient A states she exclusively attended the female general practitioner employed by the practice from 2013.
8. Patient B's records disclose that he was seen by the practitioner on 9 occasions between June 2012 and April 2014. Patient C was seen by the practitioner on two occasions namely 14 January 2014 and 24 April 2014.
9. The practitioner asserts the nature of his relationship with Patient A changed in about May 2014 when he invited her to have coffee with him. Thereafter the practitioner and Patient A engaged in text messaging, social outings and on 31 May 2014 travelled to a venue on the central coast where they stayed overnight. They engaged in consensual sexual intercourse that evening. Patient B discovered his wife's relationship with the practitioner and shortly thereafter attended the surgery and made a complaint.
10. In June 2014 Patient A contacted the practitioner by text message.
11. By letter dated 24 July 2014 from his legal representatives to the HCCC the practitioner conceded he had developed a personal relationship with Patient A, and that they had engaged in sexual relations on one occasion. The practitioner expressed remorse for his action, and explained that his actions were wrong because although Patient A was a work colleague she was also a patient "although I did not see [Patient A] as a patient at the time our relationship became sexual or following". He also noted that he had abused the trust which is central to a doctor-patient relationship.
12. Patient A states that, in about August 2014, another employee of the practice gave her an envelope containing a letter from the practitioner and $100. She asserts the letter said "something to the effect of 'We need to talk, buy a mobile phone with the $100 and text me, BUT ONLY IF YOU WANT TO'". Patient A purchased a mobile phone and sent a text to the practitioner. Patient A and the practitioner then engaged in a lengthy conversation and agreed to meet again. They subsequently met at a hotel on 5 August 2014, and again had consensual sexual intercourse and spent time talking to each other.
13. The practitioner and Patient A continued texting and engaging in telephone conversations throughout August and they again met on one occasion at a hotel and engaged in sexual intercourse. Patient A terminated the relationship in late August 2014.
14. On 16 June 2015 the practitioner responded to an invitation from the HCCC to make submissions under s 40 of the Health Care Complaints Act 1993 (NSW) including submissions in respect of his conduct post July 2014. He responded explaining his statement about not seeing Patient A from 14 June 2014 (when he left to visit Italy) was true and correct as at 24 July 2014. He further stated he "felt compelled" to contact Patient A when an employee of the practice told him that Patient A had been forced to leave her home, had no money, and that her son would not talk to or see her. He acknowledged his conduct was completely wrong and inappropriate.

Unsatisfactory professional conduct

1. The complaint annexed to the application for disciplinary findings and orders alleges the practitioner is guilty of unsatisfactory conduct under s 139(1)(a) and (l) of the Health Practitioner Regulation National Law. The section relevantly provides: (1) "Unsatisfactory professional conduct" of a registered health practitioner includes each of the following-- (a) Conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of the practitioner's profession is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. … (l) Any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession.

Professional misconduct

1. Complaint Two asserts the practitioner is guilty of professional misconduct. Professional misconduct is defined in the National Law in the following terms: For the purposes of this Law, "professional misconduct" of a registered health practitioner means-- (a) unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; or (b) 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 suspension or cancellation of the practitioner's registration.

The onus and standard of proof

1. The onus or burden of proof is that of the HCCC. It is well established, due to the protective nature of the jurisdiction and the seriousness of the complaints both for the practitioner and the public, that the standard of proof is on the balance of probabilities, but to the level of satisfaction described by the High Court in Briginshaw v Briginshaw 60 CLR 336; [1938] HCA 34 (see also Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170; [1992] HCA 66).

The purpose of protective orders

1. The focus of the Tribunal in professional disciplinary proceedings concerning a health professional is first and foremost to ensure that the safety of the public is, so far as it is possible to do so, protected (see s 3A of the National Law). In carrying out that primary function the Tribunal's orders are not designed to punish the practitioner but to protect the public (see Clyne v NSW Bar Association (1960) 104 CLR 186).
2. Protective orders serve other functions: such orders are designed to uphold public confidence in the high standards to be observed by members of the profession; the making of orders, including orders that a practitioner's registration be cancelled and that cancellation recorded on the public register maintained by the Australian Health Practitioner Regulation Agency, acts as a deterrent to other practitioners engaging in like conduct. These objectives are clearly set out in the decision of Meagher JA in Health Care Complaints Commission v Do [2014] NSWCA 307 at [35].

The Code of Conduct

1. The practitioner does not dispute that, at least by 24 July 2014, he was fully aware of the ethical responsibilities he bore as a medical practitioner and that his relationship with Patient A was inappropriate given the nature of his relationship with her and his treatment of her husband and son.
2. The Medical Board of Australia's guidelines on Sexual Boundaries provide a clear reference point for doctors. They incorporate and complement the "Good Medical Practice: A Code of Conduct for Doctors in Australia".
3. It is relevant we quote from the summary to the guidelines found in [2]. It states: Good medical practice relies on trust between doctors and their families. It is always unethical and unprofessional for a doctor to breach this trust by entering into a sexual relationship with a patient, regardless of whether the patient has consented to the relationship. It may also be unethical and unprofessional for a doctor to enter into a sexual relationship with a former patient, an existing patient's carer or a close relative of an existing patient, if this breaches the trust the patient placed in the doctor.

Dr A D W Patterson

1. It is unnecessary that we record all that the HCCC's expert, Dr A D W Patterson, said in his report. Dr Patterson was, understandably, highly critical of the practitioner's conduct, and opined that it was significantly below the standard of a practitioner of equivalent level of training or expertise. The conduct invited his strong criticism. He opined that the practitioner's action in inviting Patient A to purchase a mobile phone was indicative of him wishing to continue or re-commence the affair. Dr Patterson expressed the opinion that, after the practitioner became aware of the complaint against him, the practitioner's action in contacting Patient A on the mobile phone (that he provided the money to purchase) appeared to compound the original inappropriate behaviour.
2. Even accepting the practitioner's version of events, Dr Patterson was highly critical of the practitioner's conduct.
3. We note that Dr Patterson was not required for cross-examination and his report comes before us unchallenged. We find his criticisms of the practitioner's conduct are well founded notwithstanding some of the circumstances of both Patient A and the practitioner that we will discuss later in these reasons.

Dr Michael Diamond

1. Dr Michael Diamond (Dr Diamond) is the practitioner's treating psychiatrist. He was not required for cross-examination. Dr Diamond noted in a report dated 17 July 2016 that he had seen the practitioner, who was referred to him by Dr Murcott, on 14 occasions. He also noted the practitioner already had booked appointments to the end of the 2016 year.
2. In commenting on the practitioner's attitude to the complaint Dr Diamond explained: From the outset [the practitioner] understood the basis of the nature of the complaint. He understood his conduct was unacceptable. He understood that the Complainant was rightfully angry. He attempted to apologise. He did not deny what he did. He did not blame the patient. His attitude was one of shame, guilt and remorse. His insight extended to understanding that his professional conduct was deficient. He understood that the responsibility lay with him to have maintained satisfactory professional conduct regardless of whether or not the involvement in the relationship with [Patient A] appeared to have been consensual.
3. Dr Diamond noted that the practitioner's attitude and level of insight had changed over the months he had treated him. He noted that the practitioner had explored his personal vulnerabilities.
4. In response to the question "Whether professional boundaries were discussed in your consultations with [the practitioner], and if so, your view as to [the practitioner's] current understanding of these issues" Dr Diamond noted: Professional boundaries have been discussed with [the practitioner] throughout his attendances over the months. His understanding from the outset showed that he was well aware that he had failed to maintain appropriate professional boundaries. The discussion about professional boundaries continues to the point where his current understanding of these issues, in my assessment, is well established and clear. The understanding of professional boundaries at present includes a recent discussion, in detail, about the overt and sometimes subtle differences in the ways in which medical practitioners in Italy relate to their patients as opposed to what is culturally the norm in the Australian setting. Without criticising the accepted conduct in Italy, it is apparent to [the practitioner] that there are significant differences locally. We have discussed the issue of receipt of gifts from patients and how this is handled in the different cultures. We have discussed the role that a family physician may play in the family events within communities and how the extent of practitioners in Australia may differ from the conventional or accepted role of a family physician in a community in Italy.
5. Dr Diamond went on to explain how the practitioner had commented on minimal training undergraduates have in Italy with regard to professional boundaries and compared this to his "more recent and improved understanding following participation in the online Monash University Medical Ethics Course he is completing".
6. Dr Diamond explained that: I accept that there was vulnerability on his part. My understanding is that [Patient A] may well have had her own vulnerabilities at the time but the significant issues that was operating at that time, was that the relationship as it began as a friendship, was not within the consulting room setting, nor was it within the setting of [the practitioner] actively being involved in the medical treatment of Patient A, but rather it occurred within the practice where she was working as a receptionist and he was a medical practitioner.
7. However, Dr Diamond noted that once the relationship became romantic and sexualised it was inappropriate for the practitioner to continue the relationship.
8. Significantly, Dr Diamond addressed the issue of the practitioner's conduct in re-commencing the relationship after his statement to the HCCC in July 2014. He accepted the practitioner's account of the circumstances in which the practitioner made further contact with Patient A, noting that the practitioner now acknowledges his motives were "significantly self serving".
9. Dr Diamond opines that the practitioner's conduct was "not opportunistic, predatory or coercive behaviour on his part", that he has engaged in the treatment process with candour, and that he does not consider the practitioner poses a risk to the public if he is to continue to practise as a general practitioner. He also opines that the practitioner is a fit and proper person to hold medical registration, is better informed of ethical issues and shows contrition.

Discussion - unsatisfactory professional conduct and professional misconduct

1. We note that the practitioner in his Reply has admitted his conduct constitutes unsatisfactory professional conduct and professional misconduct. Given the terms of s165H of the National Law we had a discretion as to whether or not to continue the inquiry into the complaint.
2. The practitioner's counsel led some oral evidence in chief from the practitioner and he was briefly cross-examined. We did not find it necessary to further pursue the inquiry particularly given the large volume of documentary material tendered to us without objection.
3. Notwithstanding the concessions made, we considered all of the factual circumstances in the light of well established authority to satisfy ourselves that the protective orders proposed were appropriate.

Relevant principles and authorities

1. The authorities relating to so called "boundary violations" are clear and unambiguous. They are cogently expressed in Health Care Complaints Commission v Litchfield [1977] NSWSC 297 as follows: Female patients entrust themselves to doctors, male and female, for medical examinations and treatment which may require intimate physical contact which they would not otherwise accept from the doctor. The standards of the profession oblige doctors to use the opportunities afforded them for such contact for proper therapeutic purposes and not otherwise. This is the standard that the public in general and female patients in particular expect from their doctors, and which right thinking members of the profession observe, and expect their colleagues to observe. In this context we would adopt, with respect, the following statement from the dissenting judgment of Priestley JA in Richter v Walton (15/7/93, unreported) at 8-9: "The degree of trust which patients necessarily give to their doctors may vary according to the condition which takes the patient to the doctor. Even in regard to the most commonplace medical matters the trust a patient places in a doctor is considerable. In some cases, of which the present seems to me to be an example, the patient's trust cannot help but be almost absolute. The doctor's power in regard to the patient in such cases is also very great. I do not mean power in an abstract way but as a matter of fact; the extent of the power will vary according to the temperament of the patient, but the doctor with some patients and for limited periods, because of the relationship in which they are temporarily placed, is in a position to do whatever the doctor wants with the body of the patient. This is one of the reasons why doctors are subject to correspondingly great obligations and are expected to maintain very high standards: all this being very much in the public interest".
2. The principles must be applied having regard to the factual circumstances of each case. Here we take into account the relationship between the practitioner and Patient A commenced as a friendship when both were experiencing marital difficulties. Patient A reports that she had slept in a separate bedroom to Patient B for a number of years, they only engaged in occasional sexual intercourse, and she regarded the marital relationship to have broken down. The sexual relationship between the practitioner and Patient A was consensual and of relatively brief duration. It occurred in circumstances where the practitioner had not treated Patient A for some months although he had treated her husband and child. We accept, as does Dr Diamond, that the practitioner viewed Patient A more as a fellow worker with whom he developed a friendship, than as a patient.

Conclusions - unsatisfactory professional conduct and professional misconduct

1. It was clear from the terms of his correspondence with the HCCC in July 2014 that the practitioner was well aware that his relationship with Patient A was inappropriate, and a breach of the Code of Conduct. Notwithstanding that knowledge, he shortly thereafter engaged in entirely inappropriate behaviour by contacting Patient A via a fellow employee, provided her with funds to purchase a mobile phone, engaged in frequent texting and phone conversations with her and ultimately sought to and did briefly continue the sexual relationship.
2. We agree with Dr Patterson that this conduct fell seriously below the standard of a practitioner of this practitioner's level of skill and expertise. While he may have had feelings of guilt because Patient A had her employment terminated, was forced to leave her marital home and her son was alienated from her, he puts his own emotional and sexual needs first. It is not surprising that, as Patient A records in her statement, the practitioner's behaviour in referring to her as "my little prostitute" caused her distress, made her realise the nature of their relationship, and led to her terminating that relationship.
3. Dr Diamond referred to the practitioner's now understanding that his post July 2014 to August 2014 motives were "significantly self serving". We agree that description accurately depicts the practitioner's conduct at the time. We are satisfied that viewed overall the practitioner's then conduct was conduct that could warrant the suspension or cancellation of his registration.

Protective orders

1. As noted at the commencement of these reasons, there was no dispute between the parties that the practitioner should be reprimanded and subject to practice and health conditions.
2. Ms Richardson, counsel for the practitioner, in her careful and concise oral submissions submitted there were seven matters we should take into account in determining that the orders proposed, rather than suspension or cancellation of the practitioner's registration, were appropriate.
3. First, she submitted Patient A was a former patient. That is, she had ceased to be the practitioner's patient four to five months prior to their personal and sexual relationship. She referred us to Dr Diamond's report at page 10 where he opined that his understanding "of his [the practitioner's] conduct in relation to [Patient A] was not an opportunistic, predatory or coercive behaviour on his part. My understanding is that he became involved in a romanticised relationship with a work colleague/patient without realising the extent to which he was fulfilling his needs for gratification and support at a time when he was emotionally particularly vulnerable".
4. Secondly, Ms Richardson noted the relationship was consensual. We accept that was the case.
5. Thirdly, reference was made to the guidelines "Sexual Boundaries: Guidelines for doctors" which noted "It may be unethical and unprofessional for a doctor to enter into a sexual relationship with a former patient" [our emphasis]. In this regard we note the discussion of the authorities in Health Care Complaints Commission v Waddell No 1 [2012] NSWNMT 17 where a nurse entered into a sexual relationship with a mental health patient shortly after discharge on day release from hospital. This case falls into quite a different factual category from that which pertained in Health Care Complaints Commission v Waddell nonetheless the inherent power imbalance in a relationship where a practitioner has been privy to intimate personal information about a former patient in his/her role as a practitioner must always be borne in mind.
6. Fourthly, it was submitted that the practitioner has sought out and followed through with appropriate treatment by consulting Dr Diamond and his psychologist, Mr George Stamell. We accept that the expert evidence is that the practitioner has developed a sophisticated insight into his behaviour, and that he has made a significant commitment in travelling to Sydney on a regular basis to consult Dr Diamond.
7. Fifthly, Ms Richardson referred to the fact that the practitioner has made complete admissions to the application, that his statement and evidence show insight into his behaviour, and his expression of contrition is genuine. He accepts he should be reprimanded. She also points out that Dr Diamond opines that he does not believe that the practitioner presents a risk to patients and that the risk of him re-offending is low.
8. Sixthly, the conduct is not recurring conduct, and there is no evidence to suggest the practitioner is not currently fit to practise medicine. Ms Richardson noted the practitioner has the benefit of ongoing support in the group practice in which he is employed. She also noted that he shoulders the blame for the development of the relationship and does not seek to shift the blame to Patient A. She drew attention to the steps in which the practitioner has engaged to enhance his ethical knowledge by undertaking the Monash University Ethics course. She further noted that the practitioner is prepared to consent to a condition on his registration requiring a mentoring arrangement, and that this arrangement is beyond that which Dr Diamond thinks necessary for the safety and protection of the public.
9. Seventhly, it is submitted that the gravity of the conduct is not such that the only suitable order would be an order for suspension or cancellation of the practitioner's registration. The orders, particularly the reprimand will have a relevant deterrent effect.
10. Ms Richardson submitted that the facts in this case align more closely with those in cases such as Health Care Complaints Commission v Underwood [2012] NSWMT (unreported 22 August 2012) and Health Care Complaints Commission v Herron [2013] NSWMT (unreported 1 March 2013).
11. We find each of the seven matters which formed the basis of Ms Richardson's submissions to be cogent and relevant. The seven matters form a strong platform or foundation for the protective orders the HCCC seek and to which the practitioner consents.
12. We are satisfied that it is appropriate we reprimand the practitioner. In so doing we highlight the inappropriate nature of the practitioner's conduct, and provide a deterrent to like conduct by other practitioners. We also accept it is appropriate for the practitioner to have the benefit of a mentoring relationship for a minimum period of two years. In reaching this decision we take into account that the practitioner has had a relatively short period of practice as a general practitioner and an experienced doctor as his mentor will be able to guide and assist him both in respect of medical and ethical issues.
13. The practitioner has clearly developed an excellent therapeutic relationship with Dr Diamond and it is likely to be extremely beneficial for him to continue that relationship or his relationship with Mr George Stamell for a further period of two years. In the alternative, he may attend a psychiatrist or psychologist of his choice approved by the Medical Council of NSW.
14. Finally, we are satisfied that the conditions we intend to impose are the type of conditions which should be reviewed by the Medical Council of NSW rather than this Tribunal. The Council has the necessary expertise and experience to undertake such a review in a timely and cost effective manner.

Costs

1. It is unnecessary that we discuss the well known principles to be applied in awarding costs in professional disciplinary matters involving a health professional. The authorities on this topic are clear and unequivocal (see Qasim v HCCC [2015] NSWCA 282).
2. The practitioner concedes he should pay the HCCC's costs of and incidental to these proceedings and we so order.

ORDERS 1. Dr Vitantonio Bracco ("the practitioner") is reprimanded. 2. The following conditions are imposed on the practitioner's registration: 1. The practitioner is not to engage in solo practice for a period of three years. 2. Within 21 days of this Decision the practitioner is to nominate a registered medical practitioner to act as his professional mentor for approval by the Medical Council of NSW (the Council) in accordance with the Medical Council of NSW's Compliance Policy - Mentor (as varied from time to time). The practitioner is: 1. To participate in meetings with the Council-approved mentor at a frequency to be determined by the mentor, however not less than monthly for the first 6 meetings. 2. To authorise the Council to provide proposed and approved mentors with: A. A copy of this decision. B. A copy of these practice conditions. 1. To authorise the mentor to inform the Council (in an approved reporting format) on a 3 monthly basis that these meetings have occurred, and ensure that the mentor does in fact provide those reports. 2. To authorise the mentor to inform the Council immediately if the mentoring relationship ends or of any concerns regarding the performance of the practitioner or his compliance with any conditions on his registration. 3. To be mentored for a minimum period of two years and as subsequently determined by the Council. 4. To otherwise comply with the Medical Council of NSW's Compliance Policy - Mentor (as varied from time to time). 1. The practitioner is to attend for treatment by a psychologist or psychiatrist of his choice on a quarterly basis for a period of two years. The practitioner is: 1. To provide the Council with the name and details of the treating practitioner. 2. To authorise the Council to provide the treating practitioner a copy of the Reasons for Decision. 3. To authorise his treating practitioner to inform the Council of failure to attend for treatment, termination of treatment or if there is a significant change in health status (including a significant temporary change). 1. The practitioner is to be responsible for any costs associated with meeting conditions 1 - 3. 1. The Medical Council of NSW is requested to inform the Australian Health Practitioner Regulation Agency as soon as practicable of Orders 1 and 2 of these orders. 2. The Medical Council of NSW is the appropriate review body to review the conditions imposed by Order 2 of these orders. Sections 125 to 127 of the Health Practitioner Regulation National Law (NSW) are to apply if the practitioner's place of practice is anywhere in Australia other than in New South Wales so that the appropriate review body in those circumstances is the Medical Board of Australia. 3. The practitioner shall pay the Health Care Complaints Commission's costs of and incidental to these proceedings as agreed and failing agreement as assessed under the Legal Profession Uniform Law Application Act 2014 (NSW).

Amendment Date: 2 November 2016 Paragraphs 2, 50, 52, 55, 56, 58, 59 Typographical errors

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: 03 November 2016