Health Care Complaints Commission v Brennan [2017] NSWCATOD 75 | Case summary

NCAT Occupational|2016-09-23|Before: Ms J

Introduction

The respondent is a registered medical practitioner practising as a general practitioner.
These proceedings are disciplinary proceedings taken by the applicant alleging that the respondent is guilty of unsatisfactory professional conduct and professional misconduct by way of his conduct towards a female patient and other matters.
It is alleged that whilst being her family general practitioner, he failed to maintain proper professional boundaries by maintaining a relationship with the patient that was intimate and sexual.
These reasons are the reasons in relation to the Stage 1 hearing where the Tribunal has heard and decided the allegations of unsatisfactory professional conduct and professional misconduct.

The Complaint

The complaint is as follows: 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 the section s39(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 Keith Ian Brennan ("the practitioner") of 334-342 Lake Road, Glendale NSW 2285 being a medical practitioner registered under the National Law,

Complaint One Is guilty of unsatisfactory professional conduct under Section 139B of the National Law in that the practitioner has: 1. Engaged in conduct that demonstrates the judgement 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; 2. Engaged in improper or unethical conduct relating to the practice or purported practice of medicine. Each particular in itself justifies a finding of unsatisfactory professional conduct. In the alternative, when two or more of the particulars are taken together, a finding of unsatisfactory professional conduct is justified.

Background to Complaint One The practitioner was first registered as a medical practitioner on 6 January 2003. At the relevant time, the practitioner was employed at the [B] Medical and Dental Practice. Patient A first consulted with the practitioner in 2011 following a move to Newcastle. Patient A's mobile phone is set to Coordinated Universal Time ("UTC") which differs from Australian Eastern Standard Time ("AEST"). UTC time is 10 hours behind AEST.

Particulars of Complaint One 1. Between about October 2011 to July 2014, the practitioner failed to maintain proper professional boundaries in that he maintained a social relationship with Patient A and her family whilst being their family general practitioner. 2. During a number of consultations around October 2011, the practitioner told Patient A that she was beautiful, stared at her legs and made the following inappropriate comments: 1. "Wow, you don't have any stretch marks"; 2. "Wow, you have a big mouth". 1. From May 2013 onward, the practitioner failed to maintain proper professional boundaries in that he occasionally hugged Patient A at the end of their consultations. 2. Around May 2014, the practitioner failed to maintain proper professional boundaries in that added Patient A as a friend on Facebook and set private messages to her through Facebook while he was her general practitioner. 3. On 10 June 2014 following a consultation with Patient A, the practitioner breached Patient A's confidentiality in that he disclosed to his wife that Patient A had suffered a miscarriage. 4. Around 17 June 2014 at the end of a consultation with Patient A and her daughter, the practitioner told Patient A, words to the effect of "I like you very much. I would like to have a relationship with you, think about this". 5. From around 17 June 2014 until 24 July 2014, the practitioner sought to pursue a personal , intimate and sexual relationship with Patient A. 6. On 18 June 2014 the practitioner failed to maintain proper professional boundaries in that he inappropriately sent the following text messages to Patient A: 1. At 5:57am UTC (3.57pm AEST) stating "Hi [Patient A], how are you going? Do you need anything?" 2. At 6:10am UTC (4.10 AEST) stating "Ok thanks [Patient A}, I understand how you are feeling. Please let me know if you would like me to call out and see you for a chat if you get sad and are alone. I'm happy to call in if you need me. Look forward to [Child x] birthdsy (sic)party. Hope to see you soon" 1. Around June or July 2014, the practitioner failed to maintain proper professional boundaries in that he offered to provide Patient A with a reference for a driver job with his employer, 'Doctor to your Door'. 2. On 9 July 2014 during a consultation with Patient A, the practitioner: 1. Said to Patient A words to the effect of "we both deserve to have fun after you lost the baby"; 2. Disclosed personal information about himself about marital problems he was having and that he felt his wife was using him for money; 3. Told Patient A that he wanted to take her to Sydney and stay at the Intercontinental Hotel for a weekend; 4. Said to Patient A words to the effect of "if you want, you can have my baby. I'm very fertile and I have big balls"; 5. Rolled his chair closer to Patient A and grabbed her hands between his and pushed her legs between his; 6. Slid his hand under Patient A's shirt and touched the top of her breast when it was not clinically indicated; and said words to the effect of "fuck them all. I like talking to you and want to see you" when Patient A removed his hand from under her shirt and told the practitioner that he needed to stop as he had many patients waiting for him. 1. On 12 July 2014, the practitioner ran into Patient A while on a morning walk with a friend and the practitioner invited Patient A to join him and his friend for coffee; 2. On 15 or 16 July 2014, during a consultation, the practitioner: 1. Kissed Patient A; and 2. Placed her hand on his groin and said words to the effect of "look at what you have done to me" in circumstances where he was sexually aroused. 1. On 20 July 2014, the practitioner rode with Patient A in her car to his Yacht Club and discussed personal information with Patient A, including that his wife enjoyed staying with him at the Intercontinental Hotel and suggested to Patient A that she stay there with her husband. 2. On 23 July 2014, at a consultation with Patient A and her son, the practitioner pinched Patient A's bottom and said words to the effect that it was "nice and firm". 3. On 24 July 2014 Patient A attended a consultation with the practitioner and during the consultation, the practitioner gave patient A $200 cash to purchase a new mobile phone and offered to pay for airfares for Patient A and her children to fly to Russia. 4. At 5:49am AEST on 24 July 2014, the practitioner sent an inappropriate text message to Patient A that stated "good girl. I would give u (sic) a big hug if I was there now. [emoji] I told him that she talks to me about It as you is hard to talk about the loss of the baby keep strong and denying anything is going on between us. Xox". 5. The practitioner failed to adequately manage the situation with Patient A following engaging in kisses with her in that he did no either terminate the doctor / patient relationship or give Patient A a clear warning about professional boundaries. 6. The practitioner failed to adequately document the cessation of the therapeutic relationship with Patient A following her last consultation on 24 July 2014.

Complaint Two Is guilty of unsatisfactory professional conduct under section 139B(1)(l) of the National Law in that the practitioner has engaged in improper or unethical conduct relating to the practice or purported practice of medicine.

Background to Complaint Two Patient A's mobile phone is set to Coordinated Universal Time ("UTC") which differs from Australian Eastern Standard Time ("AEST"). UTC time is 10 hours behind AEST. Following receipt of the complaint from Patient A, the Health Care Complaints Commission ("HCCC") sent a letter to the practitioner on 18 November 2014 requesting responses relating to a number of questions. The practitioner provided a response, through his solicitors, Meridian Lawyers on 17 February 2015.

Particulars of Complaint Two 1. In a letter dated 17 February 2015, the practitioner provided misleading responses to the HCCC in that he advised that he sent a text message to Patient A at 5:57am UTC on 18 June 2014 in response to a missed call from Patient A in circumstances where phone records indicate that Patient A did not telephone the practitioner on 18 June 2014.

Complaint Three Is guilty of professional misconduct under section 139E of the National Law in that the practitioner has: 1. Engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; 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.

Particulars of Complaint Three 1. Complaints One and Two and the particulars thereof are repeated and relied upon both individually and cumulatively.

The Evidence

The evidence comprises the following: 1. Complaint dated 9 March 2016; 2. Certificate of Registration Status (to be provided at hearing); 3. Complaint from Patient A received 7 August 2014; 4. Statement of Patient A dated 09/10/2014, attaching: 1. Mental health referral for Mr A dated 19/08/2014; 2. GP Mental Health Care Plan for Mr A dated 04/08/2014; 3. Discharge record from Mental Health Service for Patient A dated 01/08/2014.; 4. Screenshots of Facebook and SMS messages sent by the respondent to patient A from 18/06/2014, 07/07/2014, 24/07/2014 and 25/07/2014. 1. Screenshots of call log from Patient A's phone from 14/07 to 23/07/2014 and SMS messages between Patient A and the respondent from 14/06 to 18/06/2014; 2. Initial complaint to the Commission (See Tab 3); 1. Statement of Mr A dated 09/10/2014, attaching: 1. Screenshots of SMS messages between Mr A (pretending to be his wife) and the respondent of 24/07/2015; 2. Copies of SMS messages exchanged between Mr A and the Respondent's wife from 28/07/2015 to 01/08/2015; 3. SMS messages exchanged between Mr A and the respondent from 24/07/2015 to 28/07/2015. 1. Statement of respondent's wife dated 08/10/2014, attaching: 1. Statement prepared by respondent's wife prior to interview with Commission Officers on 08/10/2015; 2. Notes made by respondent's wife on 01/08/2015 of her meeting with Patient A of the same date; 1. Email from respondent's wife to the Commission of 11/12/2014 providing further information. 2. Statement of Shayne Drinkwater dated 22/12/2014; 3. Statement of Robyn Keegan dated 23/12/2014; 4. Unsigned statement of Jason Gladys received on 2/03/2015; 5. Statement of Anthony O'Brien dated 22/03/2015; 6. Commission letter to Dr Simon Young of 22/06/2015; 7. Expert report from Dr Young of 07/07/2015; 8. CV for Dr Young; 9. Telstra call charge records for the respondent for period 1/01/2011 to 31/07/2014 (CD); 10. Telstra call charge records for Patient A for period 01/10/2011 to 31/07/2014 (CD); 11. Schedule of text messages / telephone calls made by the respondent to Patient A for period 04/04/2013 to 29/07/2014; 12. Schedule of text messages / telephone calls made to Patient A to the respondent for period 04/04/2013 to 29/07/2014; 13. Data extracted from Patient A's telephone by MCAA for period 02/05/2013 to 23/07/2014; 14. COPS events; 15. Statement of Patient A to the NSW Police dated 04/08/2014; 16. Letter from the respondent to the Commission dated 17/02/2015, attaching: 1. Visiting doctor service progress notes for Child X (08/06/2014 & 22/06/2014) and Patient A (27/06/2014); 2. Patient A's request for copy of patient records dated 04/08/2014; 3. Patient records for Child X (see Tab 37); 4. Patient records for Child Y (see Tab 38); 1. Respondent's CV; 2. S40 letter from the Commission to the respondent dated 06/08/2015; 3. Email from the Commission to Meridian Lawyers dated 14/08/2015, attaching: 1. Letter from the Commission to Meridian dated 13/08/2015, attaching records at Tabs 15 and 16; 1. Email from Meridian Lawyers to the Commission dated 14/08/2015; 2. S40 response from the respondent to the Commission of 26/08/2015; 3. Letter from the Commission to the respondent of 27/08/2015; (28A) Letter from the respondent to the Commission dated 10/12/2015 1. Clause 7, Part 4 and Schedule 2 of the Health Practitioner Regulation (NSW) Regulation 2010; 2. Medical Board of Australia, Good Medical Practice: A Code of Conduct for Doctors in Australia, 01/07/2010; 3. Medical Board of Australia, Good Medical Practice: A Code of Conduct for Doctors in Australia, March 2014; 4. Medical Board of Australia, Sexual Boundaries: Guidelines for doctors, 28/10/2011; 5. Patient records for Patient A from B medical practice from October 2011 to November 2014; 6. Patient records for patient from Hunter Medicare Local from January 2013 to February 2014; 7. Patient records for patient from Hunter New England Local Health District from February 2014 to July 2014; 8. Medicare records for Patient A from 01/01/2014 to 24/09/2014; 9. Patient records for Child X from H medical practice from 18/03/2014 to 21/07/2014; 10. Patient records for Child Y from H medical practice from 13/03/2014 to 23/07/2014; 11. Reply of 16/08/2016 to complaint; 12. Letter from Meridian Lawyers of 26/08/2015 to Health Care Complaints Commission responding to complaints; 13. Exhibit R2 - Letter from Robyn Keegan dated 29/09/2014; 14. Exhibit R1 - photo of Yacht Club interior; 15. Exhibit R3 - Health Care Complaints Commission complaint of 23/09/2014; 16. Statement of the respondent of 01/09/2016; 17. Statement of Patient B of 01/09/2016; 18. Statement of Peter Aurelius of 24/09/2014; 19. Oral evidence of Patient A on 19/09 and 20/09/2014; 20. Oral evidence of Shayne Drinkwater of 20/09/2016; 21. Oral evidence of Robyn Keegan of 23/09/2016; 22. Oral evidence of the respondent's wife of 20/09/2016; 23. Oral evidence of Mr A of 22/09/2016; 24. Oral evidence of the respondent on 22/09/2016; 25. Oral evidence of Mr Aurelius on 23/09/2016; 26. Further oral evidence of the respondent on 23/09/2016; and 27. Oral evidence of Patient B on 23/09/2016.

UNSATISFACTORY PROFESSIONAL CONDUCT

The complaints relate to alleged conduct in the period from about October 2011 to 24 July 2014.
Para 139B (1) of the National Law defines "unsatisfactory professional conduct" of a registered health practitioner as including: (a) "Conduct that demonstrates the knowledge, skill or judgement possessed, or care exercised by the practitioner in the practice of the practitioner's profession is significantly below the standard reasonably expected of the practitioner of an equivalent level of training or experience"; and (l) "Any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession".

The Practitioner's Training and Experience

The practitioner has considerable training and experience, the details of which are as follows: 1. 1983 - 1984 - Served as Ambulance Officer with the NSW Department of Health; 2. 1984 - 2000 Police Officer, NSW Police; 3. 2002 - graduated Bachelor of Medicine from the University of Newcastle; 4. 2009 - Fellowship, Royal Australian College of General Practitioners; 5. Awards / Fellowships: 1. 2009 Fellowship - Royal Australian College of General Practitioners; 2. 2002 - NSW Health / Rotary International (Indigenous Medical Student Scholarship); 3. 2001 - Newcastle University (Victor & Adele Bear Undergraduate Scholarship); 4. 1999 - Newcastle University (Jack Doherty Undergraduate Scholarship); 5. 1998 - Commonwealth Government (Merit Based Equity Scholarship); 1. Postgraduate courses: 1. Australian Certificate of Aviation Medicine; 2. RAN Underwater Medicine Course; 3. Emergency Management of Severe Trauma; 4. Emergency Life Support; 5. Effective Management of Anaesthetic Crisis; 6. Emergency Team Training; 7. Implanon Procedural Course; 1. Hospital Terms: 1. General Medicine; 2. Orthopaedics; 3. General surgery; 4. Emergency medicine x 3 terms; 5. Paediatrics; 6. Renal medicine; 7. Rehabilitation / Geriatric medicine 1. Practice as a Medical Practitioner: 1. May 2014 to present - General Practitioner VR, After-hours home visit doctor service, NSW Duties: 1. Provision of primary healthcare in an after-hours in the patient's home; 2. Provision of minor Emergency Medicine in an after-hours setting 1. March 2014 to current - General Practitioner VR, H Medical Practice, H NSW Duties: 1. Provision of primary healthcare; 2. Provision of Emergency Medicine in an after-hours General Practice; 1. March 2001 - March 2014 - General Practitioner VR, B Medical Practice NSW: Duties: 1. Provision of primary healthcare; 2. Provision of Emergency Medicine in an after-hours General Practice; 1. March 2009 - March 2011 - General Practitioner, Wyoming Medical & Dental Practice, Wyoming NSW. Duties: 1. Provision of primary health care; 2. Provision of Emergency Medicine in an after-hours General Practice; 1. September 2006 - September 2014 In Charge Emergency Department Medical Officer (Locums); 1. Belmont Hospital Emergency Department; 2. Maitland Hospital Emergency Department; 3. Kurri Kurri Hospital Emergency Department; 4. Tomaree Community Hospital Emergency Department; 5. Tenterfield Hospital Emergency Department; 6. Glen Innes Hospital Emergency Department; 7. Inverell Hospital Emergency Department; 8. Broken Hill Hospital Emergency Department; 9. Mudgee District Hospital 1. July 2007 - September 2008 - General Practitioner Registrar: 1. University Clinic; 2. Cessnock NSW; 1. Provision of Primary Health Care in a rural setting working with indigenous and non-indigenous patients; Duties: 1. Admission rights to Cessnock Hospital and providing ongoing care and management to inpatients. 2. Provision of Emergency Medicine at Cessnock Hospital Emergency Department, after hours. 1. July 2006 - July 2007 - Valley Medical Practice, Cessnock NSW Duties: 1. Provision of primary health care in a rural setting working with indigenous and non-indigenous patients; 2. Admission rights to Cessnock Hospital and providing ongoing care and management to inpatients. 3. Provision of Emergency Medicine at Cessnock Hospital Emergency Department, after hours. 1. July 2005 - July 2006 - Maitland Hospital, Maitland NSW Duties: 1. Providing anaesthetic services to Maitland Hospital; 2. Provision of general anaesthetics, both in elective and emergency situations; 3. Provision of pain management services; 4. Member of the Hospital Medical Emergency Team; 5. Provision of epidural and spinal analgesia; 1. April 2005 to July 2005 - Medical Officer - Intensive Care Unit, Iraq, Coalition Forces Hospital - Balad; Australian Army; Duties: Providing emergency medical and intensive care management in a Level 3 Hospital for Coalition Medical Personnel, Iraqi Military and Police. 1. February 2005 to March 2005 - Resuscitation Team Leader, Dilli, East Timor. Australian Army Duties: Senior Medical Officer for Australian Armed Forces providing peacekeeping duties in East Timor during political and social unrest. 1. 2004 - 2005 - Hunter Area Medical Resident (RMO1), Hunter Area Health, NSW: Duties: Resident duties throughout Hunter Area. 1. 2003 - 2004 - Medical Intern, Hunter Area Health NSW: Duties: Intern duties throughout Hunter Area. 1. 2002 - 2003 - Medical Assistant (pending Medical Registration), Mater Hospital, Waratah NSW; Duties: Assisting clinicians in ward settings 1. Member - professional organisations: 1. Royal Australian College of General Practitioners; 2. Royal Australian College of General Practitioners National Faculty of Aboriginal and Torres Strait Islanders Health; 3. Medical Review Officers Association; 4. South Pacific Underwater Medicine Society; 5. Australasian Society of Aerospace Medicine; 6. Australian Medical Association; 7. Australian Indigenous Doctor's Association; 8. Australian Military Medicine Association; 1. Honours Awarded 2002 - 2007: 10 medals and awards from the Police Service, Australian Military Services and Civilian Authorities in relation to outstanding services to the community, military and police force.

Complaint 2

Complaint 2 is an allegation of making a false and misleading statement to the Health Care Complaints Commission. It is relevant also to the credit of the Practitioner.
The particulars of the allegation are admitted by the Practitioner. His counsel informed the Tribunal that the practitioner admits he misled the HCCC but denies it was deliberate.
The question asked by the HCCC of the practitioner through his solicitors was: Explain your text message to [patient A] on 18 June 2014 at 0557hrs (UTC) which stated, 'Hi [patient A, how are you going? Do you need anything?' "UTC" is Coordinated Universal Time, which differs from Australian Eastern Standard Time ("AEST"). UTC time is 10 hours behind AEST. The time of 0557 hours UTC equates to 1557 AEST.
The response given by the practitioner's solicitors on his instructions ignored the difference between UTC and AEST. His reply was: "On Wednesday 18 June 2014, just prior to 5:57am, I noticed I had a missed call on my phone from [Patient A]. I was on my daily early morning walk and thought it strange that [Patient A] would call so early. So I sent her a text as set out above [or words to that effect] because I was concerned that she had called me at such an early hour and I wanted to check that she was OK"
The call referred to was at 15:57 AEST (3:57pm). The statement by the practitioner that he noticed a missed call "just prior to 5:57am on 18 June" 2014, is false. He did not notice any missed call on the phone from Patient A. There was no call before 5.57 am that day.
In response to this complaint in these proceedings, the practitioner says that the letter from the Health Care Complaints Commission posing the questions should have explained the time difference between UTC and AEST. That is not correct. On the contrary, the onus was on the practitioner to ensure that he understood what UTC time is and any difference between those times and AEST times.
He said that when he replied to the question he did not know the difference between UTC time and AEST time. He said that when he saw the reference to 0557 and thought that would be 5:57am. He considered why he would have sent an SMS message to Patient A so early in the morning. He says that he had a recollection of a missed call from her and "so ascribed that memory to the SMS message of 18 June 2014". He submitted that the conduct should not be characterised as "improper and unethical".
This conduct occurred in the context of an investigation by the Health Care Complaints Commission of complaints raised against the practitioner in respect to his practice of medicine. His failure to take reasonable steps to understand the question being asked of him lead to him giving a completely false response to the investigatory body. At best his answer was a guess but he purported to the HCCC that his answer was within his knowledge. He knew that it wasn't. The conduct was dishonest.
Providing a false and materially misleading answer to a question from the Health Care Complaints Commission was in the circumstances improper and unethical conduct relating to the practice or purported practice of the practitioner's profession, and therefore his conduct, pursuant to paragraph 139B(1)(l) is unsatisfactory professional conduct. In addition the conduct also came within S139B(a)(a) as demonstrating that the care exercised by the practitioner in answering the HCCC question was significantly below the standard reasonably expected of any medical practitioner, and more so of a practitioner with his training and experience.
Complaint 2 is proved.

Credit of Patient A

Patient A's evidence related to a period from October 2011 to July 2014; 2 years and 9 months.
For some time from the discovery of her third pregnancy, through the miscarriage and up to her release from hospital on 31 July 2014 and beyond that, she was seriously stressed and increasingly depressed. She became suicidal. Her emotional and mental health conditions no doubt impaired her capacity to recall precisely details of past incidents that had occurred over some years.
Generally, Patient A, unlike the practitioner, did not have the benefit of records made by her in relation to her interactions with the practitioner in consultations about which they testified in the proceedings.
She said that she first told her husband about the practitioner touching her breast when she was in hospital. Mr Aurelius, a friend of the practitioner and his wife and of Patient A and Mr A made a written statement that was relied upon by the practitioner. In cross examination Mr Aurelius testified that while Patient A was in hospital in late July 2014, she told him that the practitioner had kissed ("French kissing") her, he touched her breast and, he said, "I think she alleged he put her hand on his crotch area". He said, though, he could not be "100 per cent sure" of the last. In cross examination, Mr A also testified that Patient A had not told him detail of the inappropriate interactions with the practitioner (other than kissing and hugging) until she was hospitalised.
In cross examination it was put to her that she did not tell Dr Hall, the psychiatrist at the hospital, about the practitioner touching her breast, and she said that she did. It was put to her that she told the doctor that "the practitioner had looked at your breast; not touched it". She denied that proposition. The discharge summary from hospital dated 31 July 2014 refers to her complaining about her GP "who made several romantic advances towards her and was making arrangements to see her outside of work". That document was written by an RMO; not Dr Hall.
The Assessment of Patient A on 29 July was very brief and written by a Registrar. It made no reference to any issues involving the practitioner. The patient's progress notes made by nursing staff on 29 July make it clear that she was not in a fit condition to be interviewed. There are progress clinical notes dated 30 July, possibly of ward rounds, as they are headed with the names of Dr Hall (Psychiatrist) and 3 other doctors. It is also described on the second page as an interview. The only detail of inappropriate behaviour of the Practitioner is of him meeting with her on a few occasions outside of the practice, hugging and kissing her progressing to "a genuine kiss", and pulling down her top to look at her breasts.
The group also met with Patient A and Mr A later that day, but the clinical notes for that, and also notes by nursing and other staff of 30 July and 31 July, do not include any further detail of Patient A's issues with the practitioner. Medical staff had recommended that Patient A engage a different GP and she had agreed.
She conceded in her cross examination that at times she could not recall what happened on particular dates, "I remember the places and what happened, but not the dates". It is not surprising then that she had difficulty recalling dates on which particular conduct or conversations occurred, and also difficulty in recalling conversation with precision and consistency.
She denied the suggestion that she was "in the habit of greeting people with a kiss". She denied that it is a Russian tradition to do that. She said "it depends on the person". She denied that she kisses her friends. She denied a practice of hugging the practitioner when she arrived at a consultation. She conceded that at home or a child's birthday party, she could hug guests arriving, but denied that she kissed them. But the practitioner, his wife and Mr Aurelius all testified that Patient A frequently kissed friends (including men) on greeting them. The tribunal finds on the balance of probabilities that the Patient A often greeted friends, including the practitioner, with a kiss.
Evidence in the practitioner's wife's statement that has been relied upon, includes her evidence corroborating her husband's evidence of Patient A winking at the practitioner across the room in a social function. Patient A has denied that, but the Tribunal finds on the balance of probabilities it happened.
In cross examination it was put to Patient A that she frequently signed messages (including text messages to Patient A) with a cross representing a kiss. She responded "not a kiss - just kindness". She said it was a cultural habit. She was cross examined further about this and insisted that the cross identified kindness; not a kiss. Mr A in his cross examination testified that his understanding the symbol "X" is a sign for endearment and an "O" is a sign for a hug. He conceded that "X" can mean a kiss.
The Tribunal is not satisfied on the balance of probabilities that the crosses that Patient A wrote in communications to the practitioner were to designate "kindness" rather than a kiss.
Although Patient A did deny in these proceedings that she welcomed the practitioner's attention, flirtation and sexual interest, on all the evidence the Tribunal finds on the balance of probabilities that at least up to about 9 July 2014 she enjoyed their relationship and his support and felt flattered and somewhat excited by his interest and affection.
She said that she first told her husband about the practitioner touching her breast when she was in hospital. In cross examination it was put to her that she did not tell Dr Hall, the psychiatrist at the hospital, about the practitioner touching her breast, and she said that she did. It was put to her that she told the doctor that "the practitioner had looked at your breast; not touched it". She denied that proposition. He said that at the hospital Patient A told him while in hospital that the practitioner touched her breast and put her hand on his groin.
She conceded in her cross examination that at times she could not recall what happened on particular dates, "I remember the places and what happened, but not the dates". Patient A told hospital staff in late July 2014 that in 2013 she was taking the medication for depression that the practitioner had prescribed for her only occasionally when she felt sad. She conceded that she may have told the practitioner in May 2014 that she wasn't taking it regularly. When it was put to her that it was "not true to tell the Tribunal she took it every day", she avoided the question. The Tribunal finds on the balance of probabilities that Patient A was taking the medication only occasionally, depending on how she felt.
In cross examination she conceded that her husband had threatened to take the children from her. She denied that he had threatened to take them to the UK. She conceded that at threat of losing her children would cause her terrible fear and she would do anything to avoid losing them. But she denied that she would tell lies. She denied that her husband threatened to take the children to the UK and she denied ever telling the practitioner that her husband did.
But in evidence is a text that she sent to the practitioner on 23 July 2014 at 6:48pm in the following terms: "fighting with Steve, he said I need to choose between you and him and he is going to take the kids and move to the UK if I decide to stay with you …".
When it was put to her that what she said in that text message was untrue, she answered "I probably didn't remember correctly". She said the allegations were not false, they were true and "I told the truth". The tribunal finds that Patient A lied on oath when she denied telling the practitioner that Mr A had threatened to take the children to the UK.
The practitioner's wife from when she discovered the note that Patient A had left in the practitioner's car for him, appeared to have formed a view that Patient A had been the initiator in any flirting or intimate or sexual activity between her and the practitioner. She made a statement in the proceedings in late October 2014 which included a statement she had prepared before her interview with the Health Care Complaints Commission officers on 8 October, and notes she made after an interview she conducted with Patient A on 1 August 2015, the day after Patient A was released from hospital.
As at 8 October 2014, the practitioner's wife's evidence about her marriage to the practitioner and their relationship was untrue, partly because of ignorance of her husband's relationships with Patient A and Patient B, but also in terms of her assessment of her interactions with the practitioner. It is possible though that her claims that their marriage and relationship was overall "very happy and stable", and they had achieved "trust for each other", was her true belief. Her assessment of their relationship was positive, whereas the practitioner, in his conversations with Patient A, reported a very negative picture of his wife and their relationship.
The record of her interview with Patient A does not record an open interview seeking to hear Patient A's version of events. On the contrary, it is clear that the practitioner's wife had formed very strong negative and blaming convictions about Patient A and the relationship and interactions between Patient A and the practitioner. The interview was characterised by:

leading questions put to Patient A;
The practitioner's wife arguing with patient A;
the practitioner's wife determining the areas that would be discussed;
the practitioner's wife mostly rejecting statements by Patient A and accusing Patient A of intending and attempting to form a romantic and sexual relationship with the practitioner; and
the practitioner's wife contradicting numerous statements by Patient A, even when the practitioner's wife had no relevant direct knowledge of the topic.

The Tribunal does not rely on the accuracy of the record prepared by the practitioner's wife after the discussions concluded because she had a clear bias favouring her husband, the record was not contemporaneous (After she had a 1 hour conversation with Patient A she then wrote what she says she could recollect of that conversation). Also she has no qualifications or training to create transcripts.
The cross examination of Patient A in relation to her 1 hour meeting with the practitioners' wife generally resulted in Patient A reinforcing her evidence of events.

Credit of the practitioner

Various matters reflect adversely on the practitioner's credibility: One is his conduct of knowingly giving a false and misleading answer to the Health Care Complaints Commission the subject of Complaint 2.
The practitioner deceived his wife repeatedly about Patient A. He deceived her in relation to his relationship with Patient A and his relationship with Patient B. He lied to his wife about Patient A's note the wife found in his car. Then he lied to her about his behaviour towards Patient A. Even when Patient A's husband believed the practitioner had breached practitioner/patient boundaries and was extremely angry with his wife, the practitioner sought to continue the deception of her husband by arranging with her to use a bogus name in text messages between them.
In November 2014 the Health Care Complaints Commission posed a series of questions for which it sought answers from the practitioner. It was not until 17 February 2015 that the solicitors forwarded the practitioner's answers to the questions that had been posed 3 months earlier. Notwithstanding the practitioner had legal advice and assistance and 3 months to prepare those answers, some of them were false and he knew they were false.
In his further statement dated 1 September 2016 he made the following corrections to the answers he had provided through his solicitor's letter of 17 February 2015 as follows: 1. He had stated that it was not his practice to hug patients "at any stage during consultation". He corrected that to say that he meant that "I do not initiate such contact however it does sometimes happen that patients will hug or kiss me. This is particularly so with older patients. Whilst I do not initiate the hug or kiss, I do not shrink back and reciprocate the hug / accept the kiss". 2. He had falsely stated in the document that he was not experiencing any marriage problems as at July 2014. This was not true. The false statement had been given in answer to Patient A's allegation that he had told her he was having marital problems and his wife was only interested in his money. In the later statement he said "I was experiencing problems and by that time I had started to have an affair (including a sexual relationship) …" In fact he had been in an intimate and sexual relationship with Patient B from Mid April 2014 till December 2014 when his wife became aware of the relationship. He moved out of the matrimonial home on 4 January 2015, lived with a male friend for about 4 weeks until about 1 February 2015, and then returned to the matrimonial home as an attempted reconciliation. It appears that he was still living with his wife when he instructed his solicitors to give the false answer to that question. (In April 2015 he resumed the intimate and sexual relationship with Patient B and on 2 May 2015 he moved to live with Patient B. They have since lived in a de facto marriage and bought their present home together in November 2015.) 3. He had stated that his general practitioner was a Dr Jones. Dr Jones had ceased to be his general practitioner more than a year before he made that statement and he had been seeing Dr Mayers since April 2014. He had not mentioned Dr Mayers. 4. He stated that as at February 2015 he was not under the care of a specialist. That was untrue. He was at the time under the care of a psychiatrist. He initially consulted the psychiatrist for exacerbation of a post-traumatic stress disorder.
The practitioner in his statement of 1 September 2016 also qualified another answer in his solicitors' letter of 17 February 2015 to HCCC. The particular answer was referring to Patient A and her family and said "We were not 'close friends' but rather part of a wider social circle. I believe I had very little contact with them outside of work." That was qualified by adding, "This needs to be read in the context of my admissions of social; contact with [patient A] during 2014".
In his solicitors' response to HCC of 17 February 2015 the practitioner in responding to question 11 concerning him taking Patient A to his yacht club on 20 July 2014 in denying allegations by Patient A of him proposing to take her to "discreet places" and he wished to "spoil her", he did not disclose that at 20 July 2014 he was having a sexual relationship with Patient B. He did not make that disclosure till his statement of 1 September 2016 more than 2 years later..
In cross examination the practitioner was asked whether he told his psychiatrist that he flirted with Patient A. He replied: "I don't know what you mean by "flirted", certainly I told him I had an interest in her and was friendly".
At times the practitioner avoided questions.
A very serious problem with the practitioner's credit was the instances of dishonesty. Another is the fact that he makes many important allegations of conversation and conduct by him or Patient A during consultations at the Medical practice, but the patient records he made of the consultations do not include any record of the alleged conduct or conversation.
The practitioner in his statement of 1 September 2016 alleges that he instructed Robyn Keegan on 24 July 2014 that "I did not want to see [Patient A] as a patient any more. I told the Practice Manager Ms Keegan that [Patient A's] behaviour had been inappropriate and I thought that she had an unhealthy crush on me. Ms Keegan acknowledged my concerns and informed me that it would be OK".
However, Ms Keegan denied the practitioner's allegation of a conversation on 24 July 2014 with her regarding Patient A ceasing to be a patient of his, her behaviour or her having "an unhealthy crush on him". Ms Keegan also denies having said anything to the effect of "that would be OK".
Ms Keegan's evidence is that the first time the Practitioner spoke to her about Patient A's conduct on 24 July 2014 or about her ceasing to be a patient of the practitioner was later in August or September when the Practitioner had just received notice from the HCCC advising him of the investigation and he came to her and talked about Patient A and the issues.
There is no evidence of any record made by the practitioner of Patient A ceasing to be a patient, or of her behaviour on 24 July 2014, or of her having "an unhealthy crush on him". There is also no evidence that he, for example, ordered a copy of Patient A's patient record for future use by Patient A or any new practitioner of hers. Nor is there any evidence that he communicated to the patient by letter or other communication to confirm that he had terminated the doctor/patient relationship except his evidence that he sent her text messages confirming the termination of the doctor/patient relationship at 11.42pm on 28 July 2014 and at 8.14 pm on 29 July 2014. But the evidence does not include the contents of those messages.
While the practitioner alleged he terminated any relationship with patient A on 24 July 2014, he sent her text messages ( that are not in evidence) on 28 and 29 July.
He alleges that he terminated the relationship because during the consultation on 24 July 2014 Patient A offered to have sex with him. But he did not make any record of that happening. He testified that he in response told her she could not behave like that and could not have a relationship with him and told her she would have to leave, and she would have to engage another doctor. He did not record any of that either. He said he also said he recommended a female doctor in the H Medical Practice. But he made no record of that. He did not provide evidence of any written confirmation except his claim he sent 2 text messages..
In cross examination Ms Keegan was shown a typed single page document of 7 paragraphs on the Practice letterhead. The second last paragraph stated "Dr Brennan and I had a meeting on 24th July 2014 in which he stated that [Patient A] had behaved inappropriately with him and he no longer wished to see her as a patient. He stated that he felt uncomfortable with her as he felt she had a crush on him". The document is dated 29 September 2014.
Ms Keegan, when first shown the document, conceded the signature appeared to be hers but said she had no recollection of writing it or signing it. Later in cross examination she twice conceded that the signature was hers, but said she had no recollection of signing it. She said she had no conversation with him on 24 July 2014, ("the day of the incident"). She said, "I know I did not have such a conversation the day it happened". She said she wouldn't have signed the document if it were untrue. Later, she was asked by a member of the panel to look at the signatures on each of the 4 pages of her statement of 23 December 2014 and she identified each of them as hers. She was then asked to look at the signature on the document of 29 September 2014 and asked whether she was sure it was her signature and she replied, "It doesn't really look like it". In further cross examination she acknowledged her signature varies and "is different depending".
Apart from the evidence of Ms Keenan, there was no evidence as to the preparation or signing of the document.
In cross examination the practitioner testified that after 24 July in about August he asked Ms Keegan to provide a statement for him in case of proceedings against him by the HCC. Later still in his oral evidence the practitioner admitted that he was first informed by the HCCC of the complaint by a document dated 23 September 2014. It is possible that the document of 29 September 2014 was typed by the practitioner or a staff member at his request and the Practitioner (or a staff member on his instruction) then has requested Ms Keegan to sign it on or after 29 September 2014. Another possibility is that the signature was forged.
The Tribunal considers Ms Keegan a more credible witness than the Practitioner. It concludes that the practitioner's evidence that he had instructed Robyn Keegan on 24 July that he did not want to see Patient A again, and that her behaviour had been inappropriate, or that he thought that she had an "unhealthy crush" on him is not true and the fact is that there was no discussion between them about Patient A's conduct on 24 July 2014 until a date after 23 September 2014 when the practitioner had already received notice of the investigation by the HCCC of the complaints made by Patient A.
The Tribunal found that there were real problems with the credibility of Patient A, but it found that she was more honest in her evidence and generally a more reliable witness than the practitioner.

CHRONOLOGY

The practitioner admits some of the alleged conduct matters but denies others. This chronology includes some conduct of the practitioner that is not part of the complaints but is relevant to the proof or disproof of conduct alleged in the complaints.
Dr Simon Young is the expert engaged by the applicant to give opinions in relation to whether the conduct of the subject of the complaints would, if proved, constitute a significant departure from the expected standard. There has been no challenge to his expertise or his opinions.
In respect to some of the particulars, Dr Young's opinion is that even if proved, the conduct, although below the expected standard, would not be regarded as significantly below the standard and would not constitute unsatisfactory professional conduct.
There was no challenge to his opinions that some conduct constituted sexual misconduct as contravening the "Sexual Boundaries: Guidelines for Doctors, October 2011" produced by the Medical Board of Australia, which, Dr Young reported, "iterate why breaching sexual boundaries is unethical and usually harmful due to power imbalance, trust and loss of objectivity concerns". Unethical or improper conduct relating to the practice or purported practice of medicine is unsatisfactory professional conduct.
It is alleged that the practitioner conducted himself with the intention of establishing an intimate and sexual relationship with Patient A. He admits that he sought to establish a "close personal relationship" but not a sexual or intimate relationship.
Some of the conduct of the practitioner alleged in Complaint 1 is denied by him. Unless a finding as to whether such conduct is admitted, proved or disproved appears in the Chronology, discussion of such allegations will be provided later in these reasons.
The chronology is as follows: 2008 Patient A and Mr A were married in Russia. Patient A was Russian and Mr A was Greek. They migrated to Australia and settled in 2008 in Queensland. They subsequently moved to NSW. They moved to the Newcastle area in 2011. They have 2 children. Child X (7 years) and Child Y (4 years). Late 2011 Patient A and her husband were introduced to the practitioner and his wife by a couple who were mutual friends. Patient A first used the practitioner as the family doctor before the birth of the second child in 2012, when he was practising at B Medical Practice. While he was at that practice Patient A and her husband were invited to, and attended, the christening of one of the practitioner's children. She alleged that it was about that time that he commenced to give her a hug at the end of each consultation. The practitioner admits that at times they hugged, but denies that he initiated such hugs. Complaint One, Particular 2 - during a number of consultations around October 2011 he: a) Told Patient A that she was beautiful; b) Stared at Patient A's legs; c) Said "Wow, you don't have any stretch marks"; and d) Said "Wow, you have a big mouth". Dr Young said such conduct, if proved, would be significantly below the expected standard and would invite his strong criticism. It therefore would constitute unsatisfactory professional conduct. The practitioner denies all of these allegations in his replies. The evidence on this issue is the conflicting evidence of Patient A and the Practitioner's denials. There is no corroborative witness. There are no relevant records or other documentary evidence, except records much later in July 2014 of such complaints by Patient A. It is alleged that this conduct of the practitioner occurred a relatively short time after the practitioner met Patient A. There is no other evidence of any relevant conduct or statements of the practitioner at about that time suggesting he was seeking to form an intimate or sexual or close relationship with patient A. Patient A may be mistaken as to the date. The Tribunal finds that Particular 10 of Complaint 2 has not been proved on the balance of probabilities. Between October 2011 and July 2014 Complaint One Particular 1 - it is alleged that the practitioner failed to maintain proper professional boundaries in that he maintained a social relationship with Patient A and her family whilst being her general practitioner. Dr Young's opinion is that while the Practitioner's conduct was below the expected standard it was not significantly below. Accordingly his conduct in this regard was not unsatisfactory professional conduct. About 2011 The practitioner met Patient B, a radiographer, while he was working as a General Practitioner in the same medical centre as her. Her evidence is that they worked "closely" together as he was a referring GP and "very involved in patient investigations and follow up". 18 April 2012 Child Y, a boy, was born to patient A and Mr A. April 2013 to December 2013 - phone calls. In the period 4 April 2013 to 24 July 2014 Patient A sent the practitioner's then mobile phone 73 text messages and the practitioner sent 85 text messages to her number in the period 4 April 2013 to 29 July 2014. For the same respective periods patient A made 3 phone calls to the practitioner and he made 11 phone calls to her. The practitioner also made phone calls to Patient A using the landline at the medical practice. It appears that in 2013 or earlier the practitioner stored Patient A's mobile number on his mobile. In cross examination he said he asked her for the number "for follow ups of results". But he then when asked whether he stores the mobile numbers of all his patients, he replied, "depends how busy I am at the time I'm given it." May 2013 Complaint 1, Particular 3 - it is alleged that from May 2013 the practitioner failed to maintain proper professional boundaries in that he occasionally hugged Patient A at the end of their consultations. The practitioner admits the allegation about hugging. He said that it occurred "sometimes" at the end of a consultation. He said that he did not initiate any physical contact with Patient A and it is not his practice to hug patients at any stage during a consultation. He said that since he first met Patient A in late 2011, he observed that she always hugged friends and people she felt comfortable with or had regular contact with. He said that he did not consider it "a personal gesture towards me specifically, but rather her usual custom". On the evidence he did not raise with her any objection to her hugging him or suggest to her that it was contrary to professional boundaries. Dr Young's evidence is that if the practitioner initiated the hug, it would be below the standard expected of a practitioner of an equivalent level of training or experience, but not significantly below, and therefore not unsatisfactory professional conduct. Dr Young's opinion was that if the patient consented to hugging, and the doctor hugged in knowledge of that consent, it would not be below the relevant standard. It was therefore not unsatisfactory professional conduct. There is no evidence of any record being made by the practitioner about hugging with Patient A, and no evidence that he ever cautioned Patient A that such interactions might be appropriate. 6 July 2013 Patient A's daughter [child X] turned 4 years of age. The practitioner and his wife attended a birthday party for [child X]. 15 July 2013 On this date Patient A sent a text message to the practitioner stating "Keith, hope you and family are fine, I am driving with [X] to see you as she has fever, cough and earache, see you soon [Patient A]." to which the practitioner replied "ok, no problems". 18 July 2013 Patient A sent the following text message to the practitioner "Keith, hope you are OK, we are back with [Y].". Presumably the message was to put the practitioner on notice that Patient A and the child Y were at the medical centre waiting to see him about child Y. Late 2013 Patient A alleges that she and Mr A received a text message which had been sent by the practitioner's wife to many of his friends advising that he was turning 50 and she wanted to purchase a slot machine as a gift for him. It would cost about $2,000 and she suggested that people could contribute about $200 - $250 towards the gift. Patient A and Mr A contributed $200. 10 & 11 Dec 2013 There is an exchange of text messages between the practitioner and Patient A as follows: Patient A texted on 10/12/2013: "Keith, hope you and your family are doing fine!. Would you be able to tell me [X's] urine results please? Thank you [Patient A]". The practitioner responded the same day and said "Hi [Patient A] - it shows white cells but no bad bugs grew. How is she?". Reply by Patient A on 11/12/2013 - "She is OK thank you, still taking antibiotics. I'm a bit worried about white cells, what does that mean? Anything serious or more tests to do to find out what's wrong, whats (sic) wrong?" The practitioner replied that day with "come and see me and I will explain". Patient A replied "Keith, I will pop in next week, thank you for looking after us. X" Early March 2014 Patient A and Mr A were invited to a party at the home of the practitioner and his wife. Patient A did not attend because she was in Russia visiting a friend. When she returned she had a throat infection. She consulted the practitioner and whilst with him gave him a bottle of vodka and some souvenirs she had purchased in Russia. 21 March 2014 Patient B's evidence is that she and the practitioner commenced a romantic relationship on 21 March 2014, she left her husband on 28 March 2014, and the relationship with the practitioner became sexual from mid April 2014. Her evidence is that she became a patient of the practitioner "very early in the relationship" before leaving her husband. Evidence in the practitioner's case establishes that from mid April 2014 to about 25 January 2015 he was in an intimate and sexual relationship with Patient B, who continued to be one of his patients. March 2014 From about March 2014 the practitioner has practiced at the H Medical Practice. At the H Medical Practice, he has been assisted by Shayne Drinkwater. She is a receptionist in the practice. She sits on the right side of the reception desk beside the hallway that leads to the practitioner's consultation room. From when he commenced in the practice, the practitioner, unlike the other doctors in the practice, had a habit of not making appointments for patients. He also instructed some of his patients that when they came to the practice, they were to go directly to some seats outside his consulting room and sit there until called. Other patients who arrived for consultation with the practitioner sat in the reception area, and sometimes had to wait 2 to 3 hours to see the practitioner. Meanwhile, patients who had been instructed by him to wait outside his consulting room were given priority. Patient A was one of those patients. At times the practitioner would also buzz the reception desk and tell them that a patient was coming to see him and the name of the patient should be placed on his waiting list. But whenever Patient A attended, she was not placed on a waiting list. She would enter and proceed through the waiting area to the seats outside his consulting room and wait there. When walking through the reception / waiting area, she would avoid the reception desk by walking on the other side of the room. April 2014 Patient A and Mr A attended a 1st birthday party of the son of the practitioner and his wife. Around May 2014 Complaint 1 Particular 4 - It is alleged that around May 2014 the practitioner failed to maintain proper professional boundaries in that he added Patient A as a "friend" on his Facebook account, and thereafter sent private messages to her through Facebook while he was her GP. The practitioner admits this allegation and In accordance with the expert opinion of Dr Young, the practitioner admitted that his conduct was below the expected standard, but not significantly so. It did not amount to unsatisfactory professional conduct. May 2014 The practitioner admits that in May 2014 he saw on Facebook "information" placed by Patient A indicating that Patient A was pregnant. He sent a private Facebook message asking if she was "indeed pregnant". When she replied confirming the pregnancy, he then sent her a message congratulating her. Dr Young's opinion is that this conduct of the practitioner is below the expected standard, but not significantly so. It was therefore not unsatisfactory professional conduct. Before June/July 2014 In his oral evidence the practitioner testified that he had read "Good Medical Practice: A Code of Conduct for Doctors in Australia" of March 2014 before June 2014. But, he said, he didn't think he had read the Medical Council of Australia's publication "Sexual Boundaries: Guidelines for Doctors" of 28 October 2011 until after he became aware the HCCC was investigating Patient A's complaint against him. But he said he did know that doctors should not have a sexual relationship with a patient. June 2014. In cross examination the Practitioner conceded that in June 2014 he became more attracted to Patient A. He said it was because of her friendliness, her youth and her attractive appearance. He said he enjoyed her messages, seeing her socially, and going to her place on his motor cycle. When asked when he says she started to have an interest in him, he replied, "There was a noticeable change enjoyed at the end of June or early July. I had a sneaking suspicion all along." When it was put to him, "you took no steps to nip it in the bud?" he answered, "nothing needed to be nipped in the bud." He said she was isolated with little or no support and "she needed help". He was asked who he advised her to see and he advised her to see a psychologist. He conceded that there is no record in the patient notes of him making such a recommendation. When asked why not, he said, "I forgot." 8 June 2014 Patient A suffered a miscarriage. 9 June 2014 The practitioner's evidence is that he received a text message from Patient A's husband requesting him to contact the husband. When he spoke with him the husband complained that the hospital had done no ultrasound. The practitioner told him that he would try to arrange an appointment for an ultrasound for Patient A at a private hospital for the following day. 10 June 2014 Complaint One Particular 5 - the practitioner breached patient confidentiality of Patient A when he disclosed to his wife that Patient A had suffered a miscarriage. The practitioner admits this allegation and admits that his conduct amounts to unsatisfactory professional conduct. Dr Young agrees. He says that it was a breach of the code "Good Medical Practice: a Code of Conduct for Doctors in Australia" published by the Medical Board of Australia. It also breached Patient A's rights to privacy and confidentiality. It was significantly below the expected standard and also improper and unethical. It was unsatisfactory professional conduct. June or July 2014 Complaint 1 Particular 9: It is alleged that the practitioner failed to maintain proper professional boundaries in that he offered to provide Patient A with a reference for a driver job with his employer, [the visiting doctor service]. Patient A alleged this was done by the practitioner by a Facebook message. The practitioner testified that he recalls her telling him she wanted to obtain a job and accepts that he may have offered to act as a referee for her. The allegation is established on the balance of probabilities. Dr Young's opinion is that such conduct is below the expected standard, but not significantly. It was not unsatisfactory professional conduct. Around 17 June 2014 Complaint 1 Particular 6: At the end of a consultation with Patient A and her daughter, the practitioner told Patient A words to the effect, "I like you very much. I would like to have a relationship with you. Think about this." Her evidence is that "I didn't take it seriously at this time". The practitioner denies this allegation. But he says that in the period 17 June 2014 to 24 July 2014 he sought to pursue a "close personal relationship" with Patient A. In the context of him seeking to establish a "close personal relationship" and other conduct of him before and after 17 June that is admitted or otherwise proved, the Tribunal finds this allegation proved on the balance of probabilities. Dr Young's opinion is that such conduct is a significant departure from the expected standard, and invites his strong criticism. It is therefore unsatisfactory professional conduct. 17 June 2014 - 24 July 2014 Complaint One Particular 7 - the applicant alleges that in this period the practitioner sought to pursue an intimate or sexual relationship with Patient A. The practitioner admits that in that period he sought to pursue a "close personal relationship" with Patient A, but not a sexual or intimate relationship. He denies he sought an intimate or sexual relationship with her. He admits that his admitted conduct amounts to unsatisfactory professional conduct. That accords with the opinion of Dr Young. There is then an issue of whether the relationship he sought was an intimate or sexual one. Having regard to the other findings in this chronology about his sexual relationship with patient B and his conduct towards Patient A before, during and after this period, the Tribunal is satisfied on the balance of probabilities that the Practitioner's intention from 17 June 2014 was that the relationship be sexual and intimate. Clearly it was a serious breach of professional boundaries generally and the sexual boundaries guidelines and also unethical. It was unsatisfactory professional conduct. 18 June 2014 Complaint one Particular 8: It is alleged the practitioner failed to maintain professional boundaries in that he inappropriately sent the following text messages to Patient A: At 3:57pm (AEST) stating "Hi [Patient A], how are you going? Do you need anything". Response from Patient A at 4.06 pm (AEST): "Hi Keith. It is so kind of you to think about me. thank you! physically I am OK, yesterday ultrasound showed I had a bit of material left, got 2 pills that are given for abortion. Don't remember the name and a course of antibiotics. Will be back to [hospital] next Tuesday, No bleeding or pain so far. Mentally I am still sad especially when on my own. I guess it takes as bit of time to get through. I hope you and your family are doing great. I will probably see you sometime (sic) next week and also bring an invite for [child X's] birthday party on 12 July. Hi to the family. See you soon" And his message at 4:10pm (AEST) "OK, thanks [Patient A], I understand how you are feeling. Please let me know if you would like me to call out and see you for a chat if you get sad and are alone. I'm happy to call in if you need me. Look forward to [child X's] birthday party. Hope to see you soon" Dr Young considers the text the practitioner sent at 3.57 pm (AEST) involved "a blurring of boundaries by the practitioner". He said that "A practitioner of an equivalent level has insight into boundaries and avoids such situations. So it is my opinion that in regards to this issue, Dr Brennan's conduct fell below the standard expected of a practitioner of an equivalent level of training.." Dr Young did not say he regarded it to be significantly below the standard. The practitioner admitted this conduct and that it was below the expected standard, but not significantly below. That accorded with Dr Young's opinion. It was not unsatisfactory professional conduct. 22 June 2014 The practitioner sent a text message to Patient A saying: "hi [Patient A] I will be attending your place after my next patient. See you soon" Patient A replied: "thank you very much Keith! x" 25 June 2014 Patient A attended day surgery at a hospital and underwent a hysteroscopy and suction curettage. 26 June 2014 Patient A and both her children attended on the practitioner at his surgery for consultation. 6 July 2014 Child X turned 5. There was subsequently a birthday party, which was attended by the practitioner, his wife, and their 2 children. It was at a McDonald's family restaurant. First week of July 2014 Patient A and her husband and children moved to a new house in a different area. The practitioner sent a text message to Patient A "hi [Patient A], how was the move? Keith". Mr A's evidence is that after the move, he observed that Patient A started to say to him "I am a beautiful woman" "I am a good mother", and "I can look after myself". Mr A thought that this was "very odd behaviour" and this was something that someone else had told her, because "they did not sound like her own words". His evidence was that he and Patient A were arguing more and he observed that Patient A was spending more time on personal grooming, like brushing her hair, although she had always taken care of herself and he believed that "Russian women take great pride in their appearance, and especially in long hair". He said that at about this time he started to suspect there might be "something going on between Keith and [Patient A]" His evidence was that "she kept trying to reassure me that they were just friends. But for me, Keith was one of the few people that [Patient A] saw regularly. She did not really have any close friends in the area and did not know very many people at all". 7 July 2014 On this date the practitioner sent the following text messages to Patient A: 1. "hi [Patient A]. How was the move? Keith". 2. Happy birthday [Patient A]. Hope you have a great day". 8 July 2014 Patient A's birthday. The practitioner sent an SMS message to Patient A "Happy birthday [Patient A]. Hope you have a great day". Patient A texted the practitioner 6 times. He texted her 3 times. 8 July 2014 - 8:30am Patient A saw the Practitioner at his surgery for a sinus problem and he gave her some nose sprays. 9 July 2014 For the period from 04/04/2013 - 09/07/2014 - the practitioner sent Patient A 72 SMS messages on his mobile phone and made 11 telephone calls to her on that phone. The practitioner also made telephone calls to Patient A in the same period using the landline telephone of the H Medical Practice, but the evidence did not disclose how many calls he made that way. In the same period Patient A sent 62 SMS messages to the practitioner on her mobile phone and made 3 telephone calls to him on that phone. 9 July 2014 Complaint 1 particular 10: this relates to a consultation on 9 July 2014 and is discussed later in the Chronology. 12 July 2014 Complaint 1 particular 11. On his morning walk with a male friend, the practitioner "ran into" Patient A and invited Patient A to join him and his friend for coffee. The practitioner admits the allegation. Dr Young's opinion is that while the practitioner's conduct was below the standard expected of a practitioner of an equivalent level of training or experience, it was not substantially so. It was not unsatisfactory professional conduct. Patient A says that she went out that morning to see the practitioner and tell him to limit their relationship to that of doctor/patient but was unable to tell him because of the presence of his friend. At child X's birthday party at a McDonalds Restaurant, the practitioner and his wife attended with their children. The practitioner formed the view that Patient A had winked at him "which was out of character". His wife afterwards asked whether Patient A had winked at him when they arrived and this "confirmed his belief that she did". Winter 2014 The evidence of Robyn Keegan, the practice manager of H Medical Practice, is that the receptionist, Shayne Drinkwater, prior to an incident described by her to Ms Keegan and referred to later in these reasons, reported to Ms Keegan that there was "something odd" in relation to Patient A as regards her interaction with the practitioner. Her evidence is that Ms Drinkwater told her that Patient A was going directly to seats outside the practitioner's consulting room and said words to the effect "there's something wrong with this woman" and "there's something going on there, there's something strange there". Ms Keegan took the last statement to be referring to the fact that Patient A did not report to the reception and was going directly to the seats outside the practitioner's consulting room. Ms Keegan's evidence is that this procedure adopted by the practitioner and Patient A caused issues for the reception staff because the practitioner saw the patients who waited outside his office before patients who had attended and were waiting in the waiting area to see the practitioner, sometimes as long as 3 - 4 hours. Ms Keegan recalls an incident when Shayne Drinkwater came to her. Ms Keegan thinks it occurred around winter because of the jacket she recalls Shayne Drinkwater was wearing. She said in her statement that she though it was "around May, June or July". She said in the statement "Shayne dashed into my room and shut the door and we had the following conversation in words to the effect of: Shayne: "Oh my God. I've walked in on something - so embarrassing." Me: "what happened?" Shayne: "I went to open the door and it was locked and then he opened it and then that woman I was telling you about [Patient A] dashed across from the bed and sat down and [the practitioner] was adjusting his pants. There's something definitely going on between those two". The practitioner does not deny an incident when he was with Patient A in the consulting room, the door was locked, Shayne Drinkwater knocked and he unlocked the door. But he denies that he had locked the door. He said that Child Y was present and must have locked the door. The Practitioner did not rely on any clinical record of his of that consultation for Patient A or Child Y. Child Y had turned 2 on 18 March that year. If the incident occurred that winter, he would have been less than 2 years and 5 months. Shayne Drinkwater was the receptionist at [H Medical Practice] from about June 2013. Her general practice was that if she needed to speak to the practitioner when he was consulting with a patient, "I knock on his door for things such as important test results, or if I need to get a signature. If I need to talk to [the practitioner] while he is consulting with a patient, I usually knock on the consultation room door and he always says words to the effect 'come in' or 'yeah, come in'. I always wait for his response before I walk in. I am able to approach [Dr Brennan] at any time". She observed after the practitioner came to the practice in March 2014, he personally instructed some patients to sit outside his consultation room, rather than go to the receptionist and wait in the reception area. Those patients were given priority over the other patients who were in the reception area. She found that the practitioner did not take appointments and he was the only practitioner in the practice that did this. She observed that Patient A, when she came to the practice, walked past the reception area, did not consult the receptionist, and took a seat outside the Practitioner's consulting room. Ms Keegan said in her statement "Shayne dashed into my room and shut the door and we had the following conversation in words to the effect of: Shayne: "Oh my God. I've walked in on something - so embarrassing." Me: "what happened?" Shayne: "I went to open the door and it was locked and then he opened it and then that woman I was telling you about [Patient A] dashed across from the bed and sat down and [the practitioner] was adjusting his pants. There's something definitely going on between those two". In a statement dated 22 December 2014, provided at the request of the practice manager, Robyn Keegan, Ms Drinkwater stated that on a particular day Patient A attended the practice. Ms Drinkwater had occasion to consult with the Practitioner and she knocked on his consultation room door. The Practitioner answered by "yeah." When she tried to enter the door she found that it was locked. She reported "when [Dr Brennan] opened the door I noticed [Patient A] quickly cross from the other side of the room to sit on the consultation chair. Upon talking with [Dr Brennan] I apologised to [Patient A] for the interruption as I always do to any patient". In cross examination, Ms Drinkwater said that it was not unusual for the door of the consulting room to be locked but "mostly" it was unlocked and "it was only on a few occasions that the door was locked". Ms Keegan testified: "One day I think a letter came in asking for records for [Patient A]. Shayne and I were discussing it and the issue with [the practitioner] and then he came up and said words to the effect 'are you talking about me?' I told him in words to the effect 'actually we are'. I then told him that Shayne remembers knocking on the door one day and it was strange that the door was locked. He said words to the effect 'yeah, but nothing was going on'". 16 July 2014 Complaint One Particular 12 - it is alleged that in his consultation room on 16 July 2016 the practitioner kissed Patient A and placed her hand on his groin and said words to the effect "look what you have done to me" in circumstances where he was sexually aroused. The practitioner denies both of these allegations. Patient A alleges she went to the surgery to see the practitioner regarding "probably around 15 or 16 July 2014" for allergy tests and sinus problems. The Practitioner says it was 16 July and she attended with her son, child Y. She said he was telling her "how much he liked me, how he wanted me to be his girlfriend". She said "I told him that nothing could happen". She said that when she stood up to leave he came and stood in front of her, put his arms around her and kissed her. She said "he put his tongue in my mouth. I tried to push him away. He became aroused. He took my hand, I think it was my left hand. He put it on his groin outside of his trousers and said to me 'look what you have done to me'. I could feel his penis and it was hard. I could also see a bulge. I was embarrassed. While this was happening, I heard someone knock at the door and try to open it. [The practitioner] let go of me and went to the door. This was when I realised that [the practitioner] had locked the door. I not (sic) sure really what the receptionist wanted". The practitioner denies the second allegation, being of him placing her hand on his groin whilst he was sexually aroused. He does not rely on any medical record of the consultation. There is in evidence, however, a record of a consultation with Child Y on 16 July 2014 at 10:30am for an ear check after antibiotics had been prescribed at an earlier consultation. His throat and ears were checked. There is no record of any other aspect of the consultation. On the balance of probabilities the consultation referred to is the occasion when the door was locked described by Shayne Drinkwater and Patient A. The practitioner admits they kissed but says Patient A initiated the interaction at the end of the consultation by hugging him and kissing him on the lips. He says it was not her usual custom to kiss him. The practitioner did not record the interaction he alleged and did not caution patient A about the inappropriateness of it. Dr Young advised that if, as the practitioner alleged, the Patient's version was untrue and Patient A initiated the kiss, the practitioner had to choose to end the doctor/patient relationship immediately or to give the patient a warning that clearly outlined boundaries and the consequences of a further breach. Either option should have been documented. Neither was. On Dr Brennan's version of the incident, Dr Young's opinion is that the practitioner's conduct fell significantly below the expected standard and attracted his strong criticism. It was unsatisfactory professional conduct. If Patient A's version is correct, clearly it was a serious disregard of professional boundaries. It was also sexual conduct which breached the Sexual Boundaries: Guidelines for Doctors and Dr Young's opinion is that such conduct is significantly below the expected standard and invited his strong Criticism. It would be unsatisfactory professional conduct. The practitioner relies on evidence by him, his present partner and his former wife that he has suffered from erectile dysfunction for some years and has not been able to achieve an erection without manual assistance or Viagra or another medication. However, there is no suggestion that with such assistance he has been unable to have an erection. The evidence does not exclude the possibility that he resorted to one such medication before this consultation with Patient A. In cross examination he said that to achieve an erection, he has used Viagra since his thirties and has used Cialis since he has been a doctor. He said he kept Cialis and Viagra at home. He said that he last used Viagra in 2015, He said he had difficulty achieving an erection unless he used a medication and manual stimulation. He said that was the case "ever since I've been a doctor. He said he takes Reandron for low testosterone and his GP has been prescribing that for him since "2012 or 2013". Then he said he had met Patient B in March 2014 and attempted sexual intercourse from April onwards and that is probably why he "went back to Reandron. No other version of this kissing incident was offered by the evidence. On either his version or Patient A's version, the practitioner's conduct was unsatisfactory professional conduct. However, Patient A's evidence of the door of the room being locked is not disputed by the practitioner, and is consistent with the evidence of Ms Drinkwater. Although the Practitioner alleges Child Y had previously fiddled with the lock, there is no evidence he fiddled with it on this occasion, no evidence that he ever previously locked it, and no evidence he was in the vicinity of the door during the consultation. And it seems unlikely that a 2 year old with 2 adults in the room would do so unobserved. The Tribunal finds on the balance of probabilities that the consultation Patient A is referring to is the same occasion of the locked door that Ms Drinkwater testified about. The Tribunal does not accept that the door was locked by the 2 year old Child Y. On the balance of probabilities the practitioner locked the door. The practitioner has given no explanation for him locking the door. That conduct is suspicious. The Tribunal prefers on the balance of probabilities the evidence of Patient A as to the practitioner's conduct in the room that day. It was clearly a breach of professional boundaries that involved a sexual assault. It was improper and unethical conduct. It was conduct that Dr Young considered substantially below the expected standard and invited his strong criticism. Particular 12 of complaint 1 has been established. It was unsatisfactory professional conduct. Friday 18 July 2014 - Consultation Patient A and her son attended for a consultation with the practitioner that morning. The practitioner alleges that when Patient A was leaving the consultation, "she hugged me (her usual practice) and kissed me on the lips (not her usual practice at the end of a consultation)". He alleged "I asked her why she had kissed me on the lips (rather than the cheek) and she responded to the effect that we were now 'close friends'". There is no evidence that the practitioner made any record of the alleged conduct of Patient A, terminated the doctor/patient relationship, discussed the professional boundaries with her, or gave her any warning that further such conduct would result in termination of that relationship. 18 July 2014 Visit Patient A at Home - by invitation? In her statement of 9 October 2014, Patient A alleged that on Friday 18 July 2014 she received a text message from the practitioner saying that he was going away on his bike and he "asked me if he could come over and show the bikes". Patient A says that she gave him her address and directions to find it "because I thought he would come over anyway. I also had my children with me". She said "anyhow, [the practitioner] would already have my address at the practice". The practitioner's friend, Mr G made an unsworn and unsigned statement. He said in that statement that they left the practitioner's home at about 3:00pm and stopped later to obtain petrol. He stated "whilst at the petrol station, Keith stated that he had received a message before we left from a family friend who lived in Cameron Park and that her kids would like to see our motorbikes. He asked if it would be OK if we quickly stopped by". He said that he agreed. In the letter by his solicitors of 17 February 2015, the practitioner alleged that "before we left I received a message form [Patient A] asking what I was doing. I told her I was heading up to the Hunter Valley on my bike. [Patient A] asked that I call into her home (a new home at [Kew Park] which is not out of the way) to show her 2 children the motorcycle" He stated that they attended "at her request" and "She wanted the children to see the motor cycles". "He stated in his statement of 1 September 2016 that at a consultation with Patient A and Child Y on Wednesday 16 July 2014, Patient A asked him "what I was doing for the weekend". He said "I told her I was travelling up to the Hunter Valley to attend a motorcycle AGM on Saturday". In cross examination the practitioner said he received the invitation by text message or facebook. He said he didn't have her address until they were in her suburb and he "pulled over and called or SMS'd her for the address". Telephone records show that on 18 July 2014 the Practitioner, using his mobile phone, sent a text message to the practitioner's mobile phone at 10.54 am. Between that time and 2.40pm he sent her another 9 text messages and initiated a phone call of more than 2 minutes at 3.17pm. Her first text message to him was at 11.06 am and between then and 2.39pm she sent him another 7 text messages. She did not respond by text message to his last message. In the practitioner's version of the incident, he did say that he attended Patient A's home at her request. That may have been his interpretation of (as she alleged) him calling her and informing her they were coming that way, him proposing to call and show the children their bikes and her agreeing. The tribunal finds on the balance of probabilities that it was the practitioner, not Patient A, who first raised the possibility of them calling at Patient A's home on 18 July 2014 and that probably happened by his text message to her at 10.54 am that morning. Friday 18 July 2014 - The Visit to her Home Patient A alleged in her statement of 9 August, filed and served in HCCC Volume 1 on 11 August 2016, that the practitioner and his friend arrived on their motor bikes at her house. She offered them a coffee and invited them in. They declined the coffee. She showed the practitioner around the house. She alleged that before he left, "he grabbed me and tried to kiss me. I pushed him away and said something like 'where are the children?'. Keith let go of me and we went to the front porch". The practitioner and his friend then drove off. His solicitors stated that his instructions were that it was 18 July, and when she showed him through the house it was a "very quick" tour of the house and his friend stood near the front door to watch the children near the bikes. He denied that he tried to kiss her and "that anything occurred that would need [her] to push him away". His friend provided an undated and unsigned statement corroborating his version, but did not give any sworn evidence. In his statement he said he saw Patient A and the practitioner hug and Patient A kiss the practitioner outside the house when he and the practitioner were about to leave. In cross examination the practitioner conceded that he enjoyed the kiss, which he said was on the lips. Patient A alleges that after the visit to her home she sent a text message to the practitioner seeking to end the romantic relationship. The practitioner denies receiving any such message. It was after 3.00pm when the practitioner arrived at her home. The records of SMS messages sent by Patient A to the practitioner's mobile do not include any entry on 18 July after 2.39pm. The next SMS message she sent him after 2.39 pm on 18 July 2014 was 2 days later. The Tribunal is not satisfied on the balance of probabilities that Patient A did send such a message. 20 July 2014 Complaint One, Particular 13 - the practitioner rode in Patient A's car with her to the Yacht Club and there discussed personal information with Patient A, including that his wife enjoyed staying with him at the Intercontinental Hotel in Sydney and suggested that Patient A stay there with her husband. The practitioner admits this conduct and admits that his conduct amounts to unsatisfactory professional conduct. That accords with the opinion of Dr Young that it was significantly below the relevant standard and attracted his strong criticism. It was unsatisfactory professional Conduct. Patient A's version: On this occasion she wanted to see the practitioner and "I wanted to tell him to leave me alone because he was ruining my life". She knew that he walked in the mornings along the foreshore near his house. She looked for him but couldn't find him. She texted him on his mobile and also phoned his office without success. Then he phoned her and asked where she was. When she told him she was near his house, he said that he would "come now". He said that he had already walked and suggested that they meet at a McDonald's restaurant. He said "no, let's go where I am a member". She met him near his house and they went in her car to his house and then drove several kilometres to his Yacht Club. They had coffee. She asked what he wanted from her. She said that she wanted him to leave her alone and not call her. She said she told him that she did not want to see him, and he was bothering her. His response was "I will not bother you. I will take you to discreet places and I will not call you all the time" and "I will take things slowly". She alleged he also said "I want to spoil you". The practitioner's version of the conversation at the Newcastle Yacht Club on 20 July 2014 is as follows: The practitioner denied that Patient A told him at that meeting that she did not want to see him and that he was bothering her "or any words to that effect". He also denied that he said that he would not bother her or that he would take her to "discrete places and not call her all the time". He denied saying that he wanted to spoil her. The practitioner in his response in the letter of 17 February 2015 alleged that when he went into Patient A's car "I asked whether she was Ok and queried whether her husband had upset her (this is in the context of [Patient A] telling me previously that she felt unsupported by her husband, especially in the context of the recent miscarriage). She said 'yes' and that she wanted to speak with me about it". He said that he invited her to come into the family home, but she said she didn't want to do that and asked where they could go for a coffee. They then went to his Yacht club. It was a Sunday and about 8:00am. He denied that she told him that she did not want their friendship to continue. He denied that she appeared anxious or distressed. He said that the conversation was "interspersed with conversation about our children and other day to day matters". In 2016 the practitioner's recollection of the conversation on 20 July 2014 was much more extensive than the version he had given in February 2015. The following additional maters were set out in his 2016 statement: At this meeting at the Newcastle Yacht Club on Sunday 20 July 2014, Patient A said words to me to the following effect: ■ She grew up in a small town in Siberia. She grew up with her mother in a small unit and they were very poor. They had a tough time and she worked in a reception of a local hotel. She received a lot of attention from men when she worked there. She met her husband on an internet site and came to Australia. ■ She felt alone. Her husband was never around and he did not want another baby. Her husband said they could not afford one. She had nearly left her husband a couple of times. ■ She did not trust her husband. She knew he had joined an internet dating site. He said he had not met anyone but she did not believe him. ■ Her husband could yell and shout and bully her around like a school child. He badgers and stands over her and can be very angry. If she could, she would leave her husband but she has no money or job ■ She wanted another child. If her husband did not give her a child then she wanted me to give her one. As I appeared shocked, she quickly said she was only joking. I then proceeded to tell her that thinking of getting into a relationship with me was not right. I told her I was very happy in my marriage. ■ She asked me where I took my wife on our first date. I told her I took my wife to the Newcastle Club and she asked that I take her there. I said no. ■ She asked where "we" could go for fun. For the purpose of the conversation I translated that to mean [Patient A] and her husband. I suggested she and her husband go to the Intercontinental Hotel in Sydney. I described the position, outlook and the hotel generally and said my wife loved staying there. In the context of the events before and after this conversation (particularly the next day and days following it) and the conduct of Patient A seeking him out to talk, the Tribunal finds on the balance of probabilities that Patient A sought out the practitioner because she was concerned about the intimacy and sexual aspects of their relationship and, among other things the risks that posed to herself, her husband and her children. The Tribunal finds that notwithstanding the practitioner's version, Patient A expressed to him on this occasion her wish to end the relationship they had developed. 21 July 2014 The practitioner in his evidence is that on this occasion Patient A and child X attended a consultation with him and Patient A told him that "her husband thought that we were seeing each other. I said I hoped she explained that there was nothing going on". 23 July 2014 Complaint One particular 14 - It is alleged that in a consultation with Patient A and her son, (Patient A had taken her son there because he had conjunctivitis). The practitioner pinched Patient A on the bottom as she passed him and said words to the effect that it was "nice and firm". The practitioner denies this allegation of him pinching her and the comment. But he says that at the end of the consultation Patient A asked him to have coffee with her, and when he declined, she kissed him good-bye on the lips and "it was more than a peck". He alleges he "told her she could not kiss me like that as it was inappropriate," he did not record that she had kissed him, nor that he had cautioned her about its inappropriateness. Dr Young advised that the practitioner also had to choose to end the doctor/patient relationship immediately or to give the patient a warning that clearly outlined boundaries and the consequences of a further breach. Either option should be documented. On the practitioner's version of the incident he did neither. Dr Young's opinion is that the practitioner's conduct fell significantly below the expected standard. His conduct, on his own evidence, was, according to Dr Young, unsatisfactory professional conduct. He made no record of Patient A kissing him or of him making any warning to her in relationship to such conduct. The Tribunal prefers on the balance of probabilities the version of Patient A of what happened on this occasion. It is more consistent with other conduct of the practitioner and Patient A before and after that day. . The practitioner's conduct was unsatisfactory professional conduct. 23 July 2014 - 9:40am Patient A met with the practitioner. She told him that it was Mr A who had been texting him since early that morning using her mobile number. The practitioner responded "fuck, fuck, fuck!!!" The practitioner called Patient A's mobile number and it was answered by Mr A. Mr A spoke to the practitioner about what he described as unprofessional conduct as their family doctor. 23 July 2014 - 3:59pm The Practitioner sent a text message to Patient A: "[Patient A], [Mr A] has contacted me upset believing that I am trying to destroy your marriage. I attempted to explain to him that you have been deeply upset over the loss of the unborn baby and I have provided an ear for you to discuss it. I explained that I have always remained professional over this matter despite being friends with you both. I understand that this is a difficult time for both of you" 23 July 2014 Patient A consulted the practitioner on 23 July 2013 with her child Y as the child had suspected conjunctivitis. 23/24 July 2014 On the night of 23 July 2014 Patient A and Mr A had a serious argument about what Mr A believed had been a romantic relationship between Patient A and the practitioner. In the course of the argument Mr A found that Patient A was texting the practitioner with a message "Steve and I are arguing" and a response had arrived from practitioner "oh, how did that come about". In conversation Mr A said to Patient A "I suppose he kisses and hugs you", to which she replied "Yes". He asked her where he kissed her and she said "on the lips". Mr A told her it wasn't appropriate for that to happen. During the argument she attempted to cut her wrists with a knife. She told him that there had been times recently while she was driving that she had thoughts of driving off onto the opposite side of the road and into oncoming traffic. She then wanted to leave the house. Mr A took the keys of the car. There was a physical scuffle when he tried to prevent her taking the keys and subsequently he texted the practitioner accusing him of crossing the "doctor / patient boundaries". There was no response. He subsequently telephoned the practitioner. He told the practitioner that it was inappropriate that he kissed and hugged Patient A and the practitioner responded with words to the effect that "it's what I do with most of my patients, but I know I probably shouldn't do this. I haven't slept with her". The following text messages were passed between Patient A and the practitioner: Patient A to practitioner: "fighting with Steve, he said I need to choose between you and him and he is going to take the kids and move to the UK if I decide to stay with you…". Practitioner to Patient A: "What??????? How did that come up?". Practitioner to Patient A: "can u tell me why you are fighting tonight" 24 July 2014- 5:35am Practitioner message to Patient A "I will call in 5 mins" 24 July 2014- 5:36am Patient A reply to practitioner "later, as kids sleeping" 24 July 2014- 5:37am Practitioner message to Patient A "ok what time? did things settle down? I told him that we were just talking as you had been upset with miscarriage. I hope that was OK saying that" 24 July 2014- 5:39am Practitioner message to Patient A "are you OK?" 24 July 2014- 5:39am Patient A to practitioner "I will call you when I drop [child X] at school about 9". "Yes that is OK, but he doesn't believe that you are only a friend" 24 July 2014- 5:41am From Patient A to practitioner "feeling sad and have no one to comfort me right now, but need to be strong for the children" 24 July 2014- 5:49am Complaint One Particular 16 - it is alleged the practitioner sent an inappropriate text message to Patient A at 5:49am that morning. It said "good girl - I would give u (sic) a big hug if I was there now [emoji] I told him that she talks to me about it as you is hard to talk about the loss of the baby keep strong and denying anything is going on between us. Xox". The practitioner admits the allegation and admits that this conduct amounts to unsatisfactory professional conduct, which was, in accordance with the opinion of Dr Young, that the conduct fell significantly below the standard expected, and invited his strong criticism. It was unsatisfactory professional conduct. 24 July 2014- 5:51am Text from Patient A to practitioner "thank you Keith,that would be nice". "Yes, we'll keep denying anything, only wish I could get out of this situation xx" 24 July 2014- about 10:00am Patient A left her home and did not return until after midday 24 July 2014 On 24 or 25 July the practitioner's wife and Mr A tried to organise for the 2 couples to meet and discuss what had been transpiring between the practitioner and Patient A. It was proposed to meet at 7.00 pm but the practitioner said he was too busy at work to attend. Complaint One Particular 15 - the practitioner admits that on 24/07/2014 in a consultation with Patient A he gave her $200 cash to purchase a new mobile phone, as her husband had smashed hers. He admits that allegation. (Patient A's evidence is that he offered to give her $100 to replace her mobile, but she refused the offer.) It is also alleged, and he admits, that he offered to pay the air fares for her and her children to fly to Russia. The practitioner admits that his conduct amounted to unsatisfactory professional conduct. Dr Young's opinion is that his conduct of offering to pay for the fares for Patient A and her children to travel to Russia fell significantly below the standard expected of a practitioner of an equivalent level of training or experience and invited his strong criticism. It was therefore unsatisfactory professional conduct. The reasons Dr Young gave in respect to that item apply equally to the practitioner paying or offering to pay, Patient A to replace her mobile phone. That too was unsatisfactory professional conduct. 24 July 2014 - Consultation about 2:00pm Patient A attended a consultation with the practitioner. His version of what happened, taken from his solicitor's letter of 17 February 2015 to the Health Care Complaints Commission is as follows: Patient A did come and see me on Thursday 24 July 2014. It was around 2pm. She burst into tears and explained the fight the previous evening. She said her husband broke her phone and had pushed her over. I asked whether she was physically hurt and she said no. I explained that the police did act upon complaints like this and encouraged her to think about reporting the physical assault to the police for her protection and that of her 2 children. She said she would not make a report to the police because she feared her husband would do as he threatened which was to take her children away from her and go to the UK. She spoke about her concern that she had no phone, no job and no money. I gave her $200 cash (from my wallet) to assist with immediate needs (such as a new phone). She spoke of wanting to visit her mother in Russia with the children to make her feel better and I offered to fund airfares. I then revisited the issue of whether she had been hurt by her husband last night. She again expressed the view that if she went to the police her husband would take her children away from her. I said in a strong voice that I thought her husband had assaulted her and that she needed to think about her safety and that she should at least make a report. She told me not to be angry, that she could not do that to her husband and he had been very kind to her and her children. Following that long and involved conversation Patient A said (out of the blue as far as I am concerned) words to the following effect: "[Practitioner], I would like to have sex with you, but I do not want you to cum in me. If I get pregnant you know everyone will know who my baby's father is. You can cum in my mouth if you want." I was in complete shock and queried what she had just said to me. She replied by saying words to the effect: "Don't you want to have sex with me". I said that this needed to stop, that she could not say things like that to me and that I could no longer see her as a patient. I said that I knew we were friends that she was having problems with her husband but this could not happen. I said I would miss her but that I would rather she see a lady doctor at the practice called Lucy. Patient A said words to the effect she only wanted to see me that I had looked after her so well with her depression and that she didn't want anyone else speaking to her about it. I again explained the situation and asked that she agree to see another doctor. She replied "OK, but I will miss you too". We then went to the door. She hugged and kissed me goodbye in her usual way. At this point I felt her hand brush across the front of my jeans. I considered the action deliberate. I immediately stepped back, opened the door (it was not locked). At this point Patient A asked me not to say anything to her husband as he would take away her children (she referred to them as her babies). At this point I became angry and said in a loud voice "OK, but I don't want to see you as a patient anymore, do you understand". Patient A smiled, said nothing and walked off. In oral evidence he testified the consultation was bulk billed at the rate for a consultation of more than 20 minutes. 24 July 2014- 2:20pm Patient A sent the following message to the practitioner "Keith, thank you so much for everything you have done for me and the kids! You know how much I appreciate that! to be honest I am very lost and distressed, but I have decided to leave you as a doctor and friend and to catch up what's left of my marriage. It is not an easy decision but I hope you will accept it. I told [Mr A] I am not going to be in contact with you by txt or Facebook or face to face. Hope your and my lives will change for good and it's all for the kid's sake. I am really sincerely sorry about everything that happens! Siberia". (Patient A gave evidence that the practitioner told her earlier that day at the surgery to sign with the name "Siberia" so he would know the message was from her, because her husband had been texting the practitioner earlier using her phone without telling the doctor it was not her). 24 July 2014 - Patient A leaves Note on Car after consultation. Patient A after the consultation left a note on the practitioner's car at the surgery, following her text message of seeking to end the relationship: The note said "I miss you a lot too - hope you are not angry with me. I just thought it would be better for us both. XXXX" The practitioner received the note and read it. He left it inside his car. A few days later his wife found it. She then made extensive efforts to identify the writer and later she and Mr A concluded that it was Patient A. 24 July 2014 - phone call to Patient A Patient A alleges that the practitioner telephoned her on 21/07/2014 and said words to the effect "thank you for the note. I thought it was nice. It is too extreme to end the relationship. I don't want to scare you. I will just take things slowly". It appears that he was referring to the note she left on his car on 24 July and that her recollection of his telephone call being on 21 July is erroneous. Phone records show he sent Patient A 7 text messages from his mobile phone on 24 July 2014. The evidence does not establish what phone calls he made to her from the surgery or his mobile. But the Tribunal finds that given the practitioners' other conduct Patient A's evidence should be accepted. 25 July 2014 - 1:30am Mr A sent a text message to the practitioner stating "did you receive text from [Patient A] asking for you to no longer be in contact? Will you do this to allow us to fix our relationship as you claim to want to see it succeed?". The practitioner responded the same morning at 2:26am and said "sure - whatever it takes". 29 July 2014 Patient A and Mr A took their children to childcare, and as they were returning to their home, Patient A attempted to throw herself out of the car while it was moving. Mr A prevented this and then drove Patient A to their home. She was very distressed. She was lying on a bed and mumbling about her mother, the baby they had lost, and the weather. He called an ambulance. While he was waiting for the ambulance, someone arrived at the door. When he returned from the door, Patient A was in the kitchen with a knife in her hand cutting her wrists. He called the ambulance service again. They arrived and took her to hospital. She was admitted to a mental health unit and discharged on Thursday 31/07/2014. At the mental health unit it was disclosed that Patient A had been diagnosed with depression by the practitioner and had been commenced on venlafaxine for the same. She disclosed that she had only been taking the medication intermittently when she felt low. She was discharged 2 days later. She was advised to locate a new GP. She was provided with a 14 day supply of venlafaxine and follow-up was arranged with the Community Mental Health Team. The Mental Health Service reported that Patient A had "numerous stressors contributing to her presentation". They included the recent miscarriage, several inappropriate romantic advances towards her by her GP, and arrangements by him to see her outside work, feelings of being uncomfortable and threatened by the situation, her social isolation, and her suicide attempts. Her medical history included bulimia nervosa since she came to Australia that had been overcome through a 6 months course of psychotherapy 4 August 2014 On this date, Patient A and Mr A signed a request to the medical practice for a copy of their medical records to be provided to B medical practice. The records were received by B medical practice on 6 August 2014. August 2014 Complaint 1 particular 18: the Practitioner failed to adequately document the cessation of the therapeutic relationship with Patient A following her last consultation on 24 July 2014. The records of B Medical Practice show that the medical records for Patient A and her family were moved to B Medical Practice from H Medical Practice on 6 August 2014 pursuant to an authority signed by Patient A and Mr A dated 4 August 2014. In his solicitors' letter of 17 February 2015 to the HCCC the practitioner alleged that "Following the final consultation with [Patient A] on 24 July 2014 I advised my practice manager that I could no longer see [Patient A] and that other arrangements had to be made for her to see someone else." For reasons already stated, the Tribunal does not accept that the practitioner had a discussion with the practice Manager, Ms Keegan on 24 July about the events of the consultation with Patient A on that day. The finding is that the earliest he had any such discussion with the Practice Manager was in August or September when he had received notification of the HCCC investigating complaints by Patient A against him. In his solicitors' letter of 26 August 2015 in reply to the HCCC's letter raising in its letter of 6 August 2015 the proposition that his management of the end of the doctor/patient relationship was inadequate, he admitted that his conduct was inadequate. He did not dispute Dr Young's opinion that it was significantly below the standard reasonably expected of a practitioner of an equivalent level of training and experience and invited his strong criticism. It was unsatisfactory professional conduct. 2014 Complaint 1 particular 17: the Practitioner failed to adequately manage the situation with Patient A following engaging in kisses with her in that he did not either terminate the doctor/patient relationship or give patient A a clear warning about professional boundaries. That conduct is established by the evidence and admitted by the practitioner. Dr Young's opinion is that this conduct was significantly below the expected standard and invited his strong criticism. It was unsatisfactory professional conduct. 3 August 2014 Patient A was interviewed by police officers on 3 August 2014 at 10:20pm. The police officers who interviewed her did not obtain a statement from her and prepared only a COPS incident report. The document recorded that she was complaining about sexual advances being made to her by her doctor without her consent. She acknowledged that they had been friends. They reported that she was "unsure of any dates / times, is vague about numerous details even including the order the differing sexual advances occurred in". But the allegations that she made were generally consistent to those she raised in subsequent statements. She complained about him putting his hand on her breast, expressing an desire to have a relationship with her, sitting with his legs outside her closed legs, forcing her knees against his crotch, attempting to kiss her, touching her, and wanting to have a relationship with her. After the interview, and at about 7:30pm that day, Patient A contacted the police and said that she had decided not to proceed further with the police complaint and wished to cease any further police investigation / involvement. Accordingly, she attended the police station and signed a statement the following day to that effect. The investigation did not proceed further. 7 August 2014 The Health Care Complaints Commission on 7 August 2014 received a complaint by Patient A to that body and attached to the basic form was a 7 page handwritten document setting out the complaints that she raised. They included: (3) He kissed me; (4) He put his hand inside my top; (5) He pinched my bottom saying "it's nice and firm"; (6) He used to ask me to stay longer as he enjoyed talking to me; (7) 1When I told him there were many patients outside waiting to be seen by him, he told me "fuck them all!". (8) He told me that we will sleep together one day; (9) He told me he would gladly give me his baby if I wanted to and that was said when I was grieving the loss of my baby; (10) He said that we both deserved to have "some fun"; (11) He offered to take me down to Sydney for a weekend; (12) He said he would take me to a Chinese restaurant and to a nightclub to dance because he liked dancing; (13) He said we would later check into the Intercontinental Hotel. He said it was a very nice hotel with big doonas and a bar upstairs where we could go out and enjoy Sydney at night; (14) He told me "please don't leave me!. I have only just found you. I can't lose you!". (15) He started calling me "my Russian princess". He asked me to change the password for my computer and mobile phone so that my husband couldn't check; (16) He was telling me about his marriage problems and potential divorce; (17) He said his wife was only interested in money and how he felt he was being used; (18) He told me he and his wife didn't sleep together anymore and that they were barely talking to each other; (19) He was aware I was looking for a job and he mentioned to me that the company he worked for was looking for some drivers to drive doctors after hours. He said he could give me good references to apply for that job; He offered to pay for me and my kids if I wanted to go back to Russia to see my mum and friends for a bit. He was giving me money ($100) to buy a new mobile phone. 14 October 2014 The 8 page typed statement of Patient A prepared by the Health Care Complaints Commission, dated 9 October 2014 and signed 14 October 2014 by Patient A, sets out complaints about the following: 1. When she was pregnant with her 2nd child, the practitioner was her doctor and "would always tell me when he examined my stomach, 'wow, you don't have any stretch marks'. He would say this to me all the time. 2. He would tell me I had nice skin; 3. When he looked in my throat for tonsillitis he would say 'wow, you have a big mouth'; 4. I would see him looking at my legs when I went to see him at the clinic. This made me uncomfortable". 5. When wearing shorts she noticed him looking at her legs. He said to her "you are beautiful"; 6. He began to give her a hug at the end of each consultation; 7. "He sent frequent text messages asking how I was"; 8. He asked if he could come and see her for a chat if she was sad and alone; 9. He offered to give her a good reference if she wanted to apply for a driver's job with the after-hours company he worked for; 10. He told her he liked talking to her; 11. He told her "I would like to take you to Sydney for a weekend". "He told me that he would take me to the Inter-Continental as it was a nice hotel and had big doonas; 12. He told me 'if you want, you can have my baby. I'm very fertile and I have big balls'; 13. He would sit on a roller chair, roll himself closer to me, grab my hands in his and push my legs between his so that his legs were on the outside of mine; 14. He was telling me 'you are so beautiful'; 15. He put his hand inside my top which had opened a bit. He slipped his left hand into the gap of my shirt and touched the top of my right breast. When I said 'no. Stop it, I need to go' he said something like 'fuck them all. I like talking to you and I want to see you. Please stay'' 16. He put his arms around her and kissed her; 17. He put his tongue in her mouth; 18. He took her hand, put it on his groin outside of his trousers and said 'look what you have done to me!' and she could feel his penis was hard. She could also see a bulge; 19. When she told him that she did not want to see him and that he was bothering her, he told her 'I will not call you all the time. I will take things slowly', and something like 'I want to spoil you'; and 20. He said something like 'it is to go nice places and to give things'. Early December 2014 According to the evidence of Patient B, after the practitioner's relationship with her became sexual, that continued although he continued to reside in his matrimonial home where his wife and children resided. In early December 2014 the practitioner's wife discovered emails between the practitioner and Patient B. On 4 January 2015 he separated from his wife and for about 4 weeks shared another residence with a male person. Then he returned to his matrimonial home in February and ceased seeing Patient B until they resumed their relationship in April 2015 and she says he finally left his matrimonial home on 2 May 2015 and went to live with Patient B. They have lived together since then in a de facto marriage. In November 2015 they bought a house together, and they have since lived there. Since April 2015 the relationship has been a sexual relationship. In oral evidence he conceded that he was Patient B's GP from January to May of 2015.

Patient A's other Oral Evidence

Patient A acknowledged that in Russia she had been in paid work and more financially independent, but in Australia she was completely financially dependent on her husband. She had no paid work in Australia. She denied that financial issues contributed to her depression. She said "money never troubled me". She said she had credit cards and could buy what she needed.
She denied that she found it difficult to meet people and develop friendships. She said "I'm quite a social person".
She conceded that in 2013 her husband was her main support, but he was away for 5 days each week and then home for the weekend. At the hearing Patient A was cross-examined for almost 4 hours. She said in cross-examination that when she came to Australia her husband was in the mining industry and travelling a lot, and she felt isolated. In 2008 when they were in Queensland he was home every night. Then when they lived in Bathurst in 2009 he was working locally. They were in Sydney in 2010 and then moved to the Newcastle area in 2011.
While they were in Newcastle initially he was working on a fly in / fly out basis and this occurred in 2012 when the second child was only 1 or 2 months of age. Eventually that changed. She said it changed "maybe when [Child Y] was 2".
She said that his working away was "not a big problem" in 2013, but she wanted him to be home with the family. She said she felt particularly isolated in 2014 when he was away. She said she had few friends and was living alone with her children in Newcastle.
She conceded that she probably told the psychologist she was seeing about the Bulimia that she had "significant anxiety" if she didn't purge after a meal. She said she was then suffering from anxiety, depression and loneliness. Her evidence and records of the mental health services reveal that she suffered Bulimia Nervosa from when she came to Australia in 2008 till to 2013. She attended a 20 week course of psychotherapy for the Bulimia and by the end of the course in November 2013 the Bulimia Nervosa was resolved. In her evidence she said she rarely has any eating problem.
She said she thought that she started treatment for depression in 2013 and she believed it was the practitioner who initiated the medication. She said that continued throughout 2013 and 2014. She denied that she took the medication "only intermittently". She conceded that occasionally she had suicidal thoughts in 2013 and 2014.
She also acknowledged that the miscarriage in June 2014 was "deeply distressing". She conceded that her husband did not want to have the 3rd child because of the financial implications. She conceded that her attendances on the practitioner "increased dramatically" after the miscarriage.
When she was asked in cross-examination what happened at the first consultation in 2013, she said "I don't remember the detail". But she said she didn't think it was possible that she "confused what happened on which occasions".
She said one of the issues that she and her husband argued about in July 2014 was that she found out he was using an internet dating service. She said that "in some ways" it led her to distrust him.
She did not talk to the practitioner about that issue. She said that arguments with her husband about his belief that she was having an affair with the practitioner occurred over at least 4 or 5 days in late July 2014. She said this caused her considerable stress as did the miscarriage.
She said she thought it inappropriate for the practitioner to say to her that she was "beautiful" or had "a big mouth".
When she was asked about attempting to jump out of the moving car and said that it occurred because a meeting was about to be arranged with the doctor and his wife, herself and her husband. The doctor had told them to wait until 7:00pm, and "I was desperate. But his wife said the doctor had gone to a real estate agent that day to put properties on the market….it was important to see him straight away". She conceded that the time she jumped she was under a lot of stress and behaving erratically.
She was asked when she first accused the practitioner of sexually inappropriate conduct, and she said "I told him what he was doing was acting inappropriately".
It was put to her that when the practitioner told her he liked her and wanted to have a relationship with her, when she was sitting on a chair and he had wheeled her chair so that her legs were together between his, and when he touched her breast, she had not tried to stop him. She said she took his hand and said "no, don't do that".
She said that she didn't tell anyone at the time, but the first disclosure she made was to her husband when he said that he suspected "there was something going on" with the practitioner.
When asked, she said that the reason she went to see [the practitioner] at about 6:00 am at the beach was "because where else could I talk to him. There are staff there. There is no privacy….I wanted to talk to him outside his practice". When she was asked why she didn't think there was privacy in his surgery room, she said "you don't talk about these things - the patients are outside sitting on a chair and you can hear".
Then she said on the occasion of the walk she was unable to talk to him about the issue "because his friend was there".
She said that when they went to his yacht club, she asked him why they were there and why he was "doing it" and he said "because he wanted a relationship". I said "I can't because I have a family". She said he was asking her about her life in Russia and then told her that "he'd take things slow. He said he didn't want to scare me. He talked about taking me to the Newcastle Club and having a private room".
She denied that she initiated the visit to her home on motorcycles. She said "I did give him directions, but I didn't invite him".
She was asked later again about the occasion at the yacht club. There was a photo that showed no other guests seated in the dining area when they were there.
When it was put to her that she invented the allegations, such as the one of the practitioner putting her hand on his groin area when he had an erection as a way of resolving her fear that her husband would remove the children. She rejected that suggestion.
When she was cross examined about the extent of her text messages to the practitioner, she said "all were replies to his messages". She said that when she sent a message to him to stop the relationship, "then he phoned from work so I couldn't identify the number".
She said that when she was confronted by her husband she subsequently had suicidal thoughts because she was worried about what would happen, "who would believe me? My life would be ruined, and possibly my children would be taken". She denied wanting to have a relationship with [the practitioner]. It was put to her that the practitioner, "never wanted a sexual relationship" and she responded "that's a lie". She said that when things "blew up", "he was the only person I could talk to".
When she was further cross examined about her statement that when things "blew up", the practitioner was the only person she could talk to, she was reminded of her husband's "lack of enthusiasm for a 3rd child". She said she understood why he was opposed. She said she was coping as best she could and in part by seeing the practitioner.
She again conceded that he was "the only person you could talk to". Then, when asked, she recalled that the practitioner had with her second baby referred her to the "Parent and Infant Service".
Her attention was drawn to the fact that she had told her doctor on 6 May 2014, "she was not taking her medication regularly". When then asked if it was untrue to tell the Tribunal that she took it everyday, she avoided the question.
She was cross examined about the record of the Mater Mental Health Service of 30 July 2014 when she was seen by a psychiatrist and 3 other medical practitioners, and they recorded "has been treated with Effexor for the past year. She said she only takes it now and then when she felt sad. She had not been taking it continuously for the last few weeks. It was explained that ante-depressants only work if taken continuously". When this was shown to her, she answered "I believe I said that".
Her attention was also drawn to the record where it stated that she had told the psychiatrist that she had had "suicidal ideation in the last few weeks; had thought of driving on the wrong side of the road. Did not plan to act on this".
When shown the record, she conceded that she had told the psychiatrist: "when reviewing the interaction of her GP with her, she revealed that she met with him on a few occasions outside of the practice. She said on one occasion he hugged her and kissed her on the cheek. This progressed to a genuine kiss and he pulled down her top to look at her breasts. This occurred in his GP practice. She did not encourage this behaviour and actively refused to take part in this activity.
When she was asked about the occasions where she had met the practitioner outside the practice, she nominated Child X's birthday party, another party at her home in 2013, a party celebrating the christening of the practitioner's 2nd son, probably in 2013, his son's birthday party, and the meeting with him at the beach, and later at the yacht club. She was cross examined about the visit to the doctor and said that "on one occasion" where he "kissed her on the cheek" "maybe was the christening". She said that it progressed to a genuine kiss on "one of my visits to the practice"
It was put to her that she hadn't mentioned in the statement to the psychiatrist that he had touched her breasts and she answered "he did, I was wearing a bra". She conceded there is a difference between touching a breast and looking at a breast.
She added "I don't remember what I said, but he touched it". When asked whether she told the psychiatrist that he touched her breast, she said he did.
There was further cross examination about the note that she left him on his car at the surgery. She had said that she had left it after the occasion at the yacht club. She conceded when it was put to her that it was not at the yacht club and that she had left it on a different day on the door handle of his car outside the medical practice. She said "I didn't visit him. I just came there to leave the note. Somewhere in July". Although it emerged from the evidence that in fact she left a note in an envelope in the handle of the door of his car after she had attended a consultation with the practitioner.
She later said that it was on 21 July 2014, but according to the evidence that was incorrect.
In cross examination she was asked about not having reported at the time of her admission to the hospital on 29 July 2014 the allegation of the practitioner putting her hand on his groin area while he had an erection. But the mental health assessment notes at the hospital of the day of her admission do not appear to record that the staff interviewed her personally. It appears that the information they obtained was from her husband.
The only statement he is recorded as having made regarding the GP was "husband also reports that he recently discovered that client has been 'seeking solace' from her GP outside of the boundaries of the therapeutic relationship". There is no reporting of the details of the interactions with the GP.
The first more detailed notes are dated the following day (30 July) and include only 4 pages that contain messages reporting that Patient A disclosed. There was little detail of interactions between her and the GP.
When cross examined about the absence of detail about the "alleged hand on erection" incident, Patient A insisted that she did tell a psychiatrist called "Tanya" about that. She denied that she made it up. When asked what she told the police about alleged sexual conduct, she said "everything that happened".
She conceded that the allegation of the "hand on groin" incident was serious. She denied the absence of reference to that incident in the police record showed that she did not report such an incident. She insisted that she told the police about the incident.
Patient A conceded that when she told her husband that nothing was "going on" between her and the practitioner that was untrue. When she was asked why she didn't tell her husband of the alleged sexual assaults, she said "I was trying to get him to believe me. I was trying to tell him because he didn't listen. I didn't know if he'd believe me. I was trying to tell him - to explain - but he didn't listen to me. He was all emotional. He told me [the practitioner] had suggested we all meet. By then my husband was using my SIM card and sending messages to [the practitioner] and pretending it was me".
In cross examination Patient A adhered to her complaints of the practitioner saying he had "no stretch marks". She said he said it more than once in 2013. He adhered to her complaint that he said he had said that she had "nice skin". And "a big mouth". She denied that he only hugged her in response to her hugging him.
When asked, she said that where she referred to "about [date]" she couldn't remember the precise date.
When it was put to her that the text messages available in the evidence were "typical of what he said he would send you", she said "later there were saucy messages - not appropriate - different intimate messages". She said "I deleted them. Some I remember". She was asked what did she remember? She said "he said he came home from a bike ride and was having a hot shower thinking of me".
She said she deleted other Facebook messages, "one he sent 'are you really pregnant [Patient A]?'". She confirmed his statement that they deserved to have fun. She said she had stated the exact words he had told her he said about wanting to take her to Sydney. She said they were the exact words he used, although she had said "something like" in front of them. He also confirmed her allegations regarding the conversation concerning the Intercontinental Hotel, the Chinese restaurant, dancing and the bar upstairs.
She said "he said exactly as I said".
When she was asked whether the "touching of the breast" and "hand on groin" incidents happened at the same consultation. She said "I don't recall exactly".
She said that her recollection was that the "hand on groin" incident occurred when neither of her children were present. When it was put to her that one of the children was present on the recorded consultations at about that time, she said "I don't know dates. Maybe he didn't put it in the system".
She was asked if she wanted to have no more to do with the practitioner, why did she go back and see him (eg 23 and 24 July)? Her answer was "cause he kept messaging. He knew where I lived and he could come to my house. I had never invited him". She was asked why she didn't see one of the other doctors and she said "I wanted to tell him to stop". She said that she did hang up on him when he rang her.

Complaint 1 Particular 10 - Consideration

This particular alleged that on 9 July 2014 during a consultation with Patient A, the practitioner: 1. Said to Patient A words to the effect of "we both deserve to have fun after you lost the baby"; 2. Disclosed personal information about himself about marital problems he was having and that he felt his wife was using him for money; 3. Told Patient A that he wanted to take her to Sydney and stay at the Intercontinental Hotel for a weekend; 4. Said to Patient A words to the effect of "if you want, you can have my baby. I'm very fertile and I have big balls"; 5. Rolled his chair closer to Patient A and grabbed her hands between his and pushed her legs between his; 6. Slid his hand under Patient A's shirt and touched the top of her breast when it was not clinically indicated; and 7. Said words to the effect of "fuck them all. I like talking to you and want to see you" when Patient A removed his hand from under her shirt and told the practitioner that he needed to stop as he had many patients waiting for him.
The practitioner denied all of these allegations.
In his solicitors' letter to the HCCC of 17 February he said that he saw Patient A, Child X and Child Y together on 9 July. "My notes record all 3 consultations. The children are in the consultation room at all times". The patient records record that both children were unwell and had a sore throat. The Practitioner prescribed Amoxycillin for both children. His notes for the consultation with Patient A on 9 July state that she had "runny nose and itchy eyes" and the reason for the visit was stated as "allergic disorder".. She was prescribed eye drops and Rulide tablets. A pathology test was requested. The Medicare records record that for Patient A he bulk billed for a short consultation. According to his oral evidence each short consultation could be up to 10 minutes.
He denied all of the statements alleged. He stated that "I was not experiencing marriage problems" but that was untrue. He was experiencing marriage problems. He suggested in relation to item (d) that Patient A was confused with his statement to her at his yacht club on the morning of 20 July 2014 that his wife liked to stay at the Intercontinental Hotel in Sydney. He denied the conduct and physical contact with patient A alleged in item (e ) and also denied ever instigating any physical contact with Patient A .
He denied touching her breast or placing his left hand inside her shirt or ever instigating "any such physical contact". He denied saying the statement attributed to him in item (g).
In his solicitor's letter of 26 August 2015 to HCCC in response to questions, he again denied item (f).
Most of the items in complaint 1 particular 10 are matters included in the handwritten statement of Patient A attached to her complaint to the HCCC of 14 October 2014.
The Tribunal, on all the evidence, finds these allegations proved on the balance of probabilities because of the Practitioner's other prior and subsequent conduct and statements of the practitioner that are proved make the allegations more probable and also because of the practitioner's poorer credibility than that of Patient A.
According to Dr Young each of these statements or conduct on 9 July 2014 are a substantial departure from the relevant expected standard and attract his strong criticism. They constitute unsatisfactory professional conduct.

Complaint 3 - Professional Misconduct?

Section 139 E of the National Law provides that the practitioner is guilty of professional misconduct if he has: 1. Engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration, 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 of cancellation of the practitioner's registration.
The above findings of the Tribunal include that the practitioner is guilty of 12 complaints of unsatisfactory professional conduct. The practitioner admits that together they are sufficiently serious to together constitute professional misconduct.
The Tribunal has concluded that because of the serious nature of the breaches of professional boundaries, breach of the duty of confidentiality to a patient and the instance of providing a false and misleading response to the Health Care Complaints Commission, the instances of unsatisfactory professional conduct taken together amount to conduct of a sufficiently serious nature in terms of protection of the public to justify the suspension or cancellation of the practitioner's registration, and therefore constitute professional misconduct.

Orders

Accordingly, the orders of the Tribunal are: 1. The practitioner, Keith Ian Brennan is guilty of professional misconduct; 2. The proceedings are to be listed for a further 1 day of hearing to determine the outcomes of the proceedings on a date to be fixed by the Registrar; 3. The Health Care Complaints Commission must file and serve any further documents upon which it seeks to rely within 28 days. 4. The respondent practitioner must file and serve any further documents on which he seeks to rely within 28 days after he is served with the documents from the Commission. 5. Publication or broadcast without the leave of the Tribunal of the name or other identifying information of any child or any patient of the practitioner is prohibited.

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: 18 May 2017

Health Care Complaints Commission v Brennan

At a glance

Court

Decision date

Before

Source

Judgment (22 paragraphs)

Parties

Cited By (1)