Health Care Complaints Commission v Cleary

NCAT Occupational|2021-09-14|Before: Dr J

edy (2017) 263 CLR 85; [2017] HCA 49 Texts Cited: Medical Board of Australia, 'Good Medical Practice: A Code of Conduct for Doctors' (March 2014) Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Dr Michael Cleary (Respondent) Representation: Counsel: I Chatterjee (Applicant) P Dwyer (Respondent)

Solicitors: Health Care Complaints Commission (Applicant) Avant Law (Respondent) File Number(s): 2021/00073239 Publication restriction: Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) the disclosure to any person or entity of the names of Patient A and the Persons set out in the schedule to the complaint is prohibited.

Introduction

By Application for Disciplinary Findings and Orders filed 15 March 2021 the Health Care Complaints Commission ("the Applicant") sought protective orders against Dr Michael Cleary ("the Respondent") pursuant to the provisions of the Health Practitioner Regulation National Law (NSW) ("National Law") and costs.
The grounds relied upon by the Applicant alleged that the Respondent had been guilty of unsatisfactory professional conduct within the meaning of section 139B(1)(a), (b) and/or (l) and professional misconduct within the meaning of section 139E of the National Law.
The Application contained four Complaints, each of which contained within it a number of particulars.
On 20 September 2021, by consent, and as a result of matters which emerged during the hearing of the proceedings on 13 and 14 September 2021, the Applicant filed an Amended Complaint. The only amendment to the Complaint was in particular 2 of Complaint 1, so as to allege that the Respondent "failed to observe proper professional boundaries when he received from Patient A (or became aware that family members had received) the sums of money pleaded in the original Complaint".
By his Reply, the Respondent admitted the particulars of a number of Complaints, disputed parts of the particulars of other Complaints and, in other respects, stated that he was unable to respond to the particulars of those Complaints without further clarification of those particulars.
The Respondent did not expressly admit or deny that the facts alleged by the Applicant which he admitted constituted unsatisfactory professional conduct. The Respondent denied that he had been guilty of professional misconduct.
The evidence relied upon by the Applicant was contained behind 43 tabs in two volumes. Without objection, the two volumes were admitted into evidence ("HCCC 1"). Save in two respects, no objection was taken to any of the documents contained in HCCC 1. By agreement between Counsel for the parties, the words "the packet of pregabalin described above and" were redacted from the final paragraph of page 14 of the expert report found at tab 18 of HCCC 1. The verb "are" in that sentence was thus necessarily read as "is". At page 28 of tab 18, the words "both of these packets prescribed are unaccounted" were replaced by the words "the packet of oxycodone prescribed is unaccounted". None of the witnesses whose statements were included in HCCC 1 was required for cross-examination.
The Respondent was represented by experienced solicitors and Counsel. Other than relying upon two unsworn statements made by him, on 21 March 2019 and 29 July 2021, which were ultimately admitted into evidence without objection, the Respondent did not give evidence. We were informed by his learned Counsel that the Respondent was not present throughout the hearing, which proceeded "virtually" without objection in the light of Covid-19 restrictions which were then operative. Other than the Respondent's two statements, and two medical reports tendered on his behalf without objection, dated 8 September 2020 and 20 July 2021, the Respondent adduced no evidence in the proceedings. The Respondent was not available for cross-examination on his statements. The author of the medical reports relied upon by the Respondent was not required for cross-examination. The Respondent's statements, and the medical reports, were received in evidence as exhibit R1.
Prior to the commencement of the hearing, and without objection, the Tribunal made an order pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) ("the NCAT Act") prohibiting the disclosure of the name of Patient A and the Persons set out in the schedule to the complaint. That order continued throughout the hearing and will continue after the delivery of the Tribunal's decision. The proceedings were, of necessity, heard by audio visual link. A number of unidentified persons were apparently listening to the proceedings. At the commencement of the hearing, and on resumption after adjournments during the proceedings, on each occasion the Tribunal reiterated the terms and effect of the non-disclosure order for the benefit of any persons observing or listening to the proceedings.
As is not in doubt, the proceedings entail two stages, the first being whether the Tribunal is satisfied that the Respondent is guilty of unsatisfactory professional conduct and/or professional misconduct. In the event that findings of guilt are made, the second stage in the proceedings involves consideration of the appropriate protective orders to be imposed. Sensibly in our view, the parties agreed that there should be a single hearing with respect to stages one and two. By adopting that course, the Respondent was not admitting that stage two was enlivened. The parties' approach involved no risk of procedural unfairness to the Respondent, and was consistent with authority in relation to when a single hearing of stages one and two is appropriate (Lucire v Health Care Complaints Commission [2011] NSWCA 99, Sudath v Health Care Complaints Commission (2012) 84 NSWLR 474; [2012] NSWCA 171).

The Statutory Framework

Counsel for the parties helpfully provided an agreed synopsis of the statutory provisions and principles which govern the present proceedings. It is appropriate to record the contents of that synopsis. "1. Section 139B(1) of the Health Practitioner Regulation National Law (NSW) ("National Law") contains a definition of unsatisfactory professional conduct of a registered health practitioner, and relevantly provides: "139B Meaning of "unsatisfactory professional conduct" of registered health practitioner generally [NSW] (1) Unsatisfactory professional conduct of a registered health practitioner includes each of the following- (a) Conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of the practitioner's profession is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. […] (l) Any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession. 2. The terms 'improper' and 'unethical' conduct are not defined in the National Law and should be given their ordinary meaning. 3. Section 139E contains a definition of professional misconduct of a registered health practitioner, and provides: "139E Meaning of "professional misconduct" [NSW] For the purposes of this Law, professional misconduct of a registered health practitioner means- (a) unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; or (b) more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration." Proof 4. The Commission as complainant bears the onus of proof in this matter. 5. In health practitioner disciplinary matters, the factual content of an allegation must be established on the balance of probabilities, and the question as to whether that level of proof has been reached is to be assessed having regard to all of the relevant evidence before the Tribunal: Health Care Complaints Commission v Wilcox [2020] NSWCATOD 10 at [52]. 6. It is generally accepted in proceedings such as these (and in particularly where as here the allegations can amount to criminal conduct, and where the consequences include the potential de-registration of the practitioner) that the principles identified in Briginshaw v Briginshaw (1938) 60 CLR 336 apply; that is, that the Tribunal must be mindful of the nature and seriousness of the allegation to be proved with the result that the Tribunal must be "comfortably satisfied" that the allegations are made out on the balance of probabilities (see for instance Wilcox at [53]). Professional Misconduct 7. In determining the issue of professional misconduct the Tribunal must determine whether 'the Respondent's contraventions […] considered as a whole […] are of a sufficiently serious nature to justify suspension or deregistration'. If so, a finding should be made of professional misconduct irrespective of whether such an order would be made in the particular case (HCCC v Perroux [2011] NSWDC 99 at [18] citing Health Care Complaints Commission v Karalasingham [2007] NSWCA 267 per Basten JA at [67]). Statutory Framework - Disciplinary Orders 8. The Tribunal's disciplinary powers are set out in Part 8, Division 3, Subdivision 6 of the National Law. It may suspend registration for a specific period or cancel registration if satisfied of certain matters: National Law, s149C. Those matters include that 'the practitioner is guilty of professional misconduct': National Law, s149C(1)(b). If the Tribunal considers that the respondent has committed professional misconduct, it has power to suspend or cancel his registration, but is not obliged to do so. 9. In exercising a function under the National Law, 'the protection of the health and safety of the public must be the paramount consideration.': National Law s3A. Section 4 requires the Tribunal "to exercise its functions having regard to the objectives and guiding principles" set out in section 3. 10. The "task" undertaken by a Tribunal in making protective orders (albeit in the context of the Medical Practice Act 1992 (NSW) but adopted numerous times in the context of the National Law) has been described as "[centring] not on punishment as such but on the protection of the public and the maintenance of proper professional standards" (Lee v HCCC [2012] NSWCA 80 per Barrett JA at [21]). In that judgment, Barrett JA adopted (at [20]) the comments of Basten JA in Director General, Department of Ageing, Disability and Home Care v Lambert (2009) 74 NSWLR 523 at [83] that: '1 The specific purpose for which orders are made is protective in the public interest and is not punitive with respect to the individual. 2 That is not to deny that such orders may be punitive in effect and that punitive effect may be relevant in formulating a protective order. 3 The punitive effects may be directly relevant to the need for protection so that, in a particular case, there may be a factual finding that the harrowing experience of disciplinary proceedings, together with the real threat of loss of a livelihood, may have opened the eyes of the individual concerned to the seriousness of his or her conduct so as to diminish significantly the likelihood of its repetition and to produce a level of insight into his or her own character or misconduct which did not previously exist.' 11. As such, the effect of any orders made on the respondent (including for instance their financial impact) are only indirectly relevant, for instance by way of the effect of such orders on the likelihood of a repetition of the impugned conduct. 12. Protecting the health and safety of the public is not confined to protecting future patients from the risk of harm; the Tribunal can appropriately take into account matters such as maintenance of standards and the general standing of the profession. As noted in Health Care Complaints Commission v Do [2014] NSWCA 307 at [35], the considerations include: 'protecting the public from the similar misconduct or incompetence of other practitioners and upholding public confidence in the standards of the profession. That objective is achieved by setting and maintaining those standards and, where appropriate, by cancelling the registration of practitioners who are not competent or otherwise not fit to practise, including those who have been guilty of serious misconduct. Denouncing such misconduct operates both as a deterrent to the individual concerned, as well as to the general body of practitioners. It also maintains public confidence by signalling that those whose conduct does not meet the required standards will not be permitted to practise.' 13. However, any protective orders made by the Tribunal should not result in 'more serious consequences for the practitioner than is reasonably necessary in execution of the protective purpose of the legislation' (Health Care Complaints Commission v Schmaman [2019] NSWCATOD 82 at [88] citing NSW Bar Association v Meakes [2006] NSWCA 340 at [114]. 14. Finally, if findings are made against a medical practitioner as to the mishandling of drugs (and in particular drugs of addiction), that is a matter directly relevant to fitness to practice. In Spicer v New South Wales Medical Board & Ors (unreported) NSW Court of Appeal, Thursday, 19/02/1981), Hope JA, with whom Reynolds and Huntley JJA agreed, observed (at 5, 6): 'In my opinion it is clear beyond argument that the proper handling and prescribing of drugs by medical practitioners are of the greatest importance to the community. If a medical practitioner handles or carries out that very great responsibility in a way which is reckless and which shows a disregard to the law it cannot be said that he is fitted at such a time to be a medical practitioner. In my opinion the view expressed by the Tribunal has implicit in it that not merely was he presently unfitted to treat those addicted or habituated to drugs but that that unfitness in itself demonstrated his present unfitness to be a medical practitioner.'"

The Complaints

The Applicant's Complaint alleges that the Respondent is guilty of professional misconduct pursuant to s 139E of the National Law, in that the Respondent has engaged in unsatisfactory professional conduct of sufficient seriousness as to constitute professional misconduct, and/or, has engaged in unsatisfactory professional conduct in numerous respects which, cumulatively, constitute professional misconduct.
Particularly in view of the basis on which the Applicant pleads its case, it is appropriate to consider the particulars of each Complaint in the light of the Respondent's reply to such particulars, and the evidence in support of them, and, in the light of our findings of fact in each instance, determine whether the Applicant makes out each particular of its Complaint.

Complaint 1

Complaint 1 of the Application asserted that the Respondent was guilty of unsatisfactory professional conduct under s 139B(1)(a) and/or (l) of the National Law in that he: (i) engaged in conduct that demonstrates the knowledge, skill or 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; (ii) engaged in improper or unethical conduct relating to the practice or purported practice of medicine.
Under the heading "Background to all Complaints" the Applicant set out a number of relevant factual matters, none of which is controversial. Those matters recorded that the Respondent was first registered as a Medical Practitioner in 1979, and that he commenced employment at the Wholistic Medical Centre in Surry Hills in 1982, and continued to practise until 2019.
All complaints against the Respondent arose out of his association with Patient A, who died in January 2019. The Respondent signed Patient A's Cremation and Death Certificates.
Patient A consulted with the Respondent from 2004, when she was 70 years of age, until her death 15 years later. During that period, the Respondent was also practising homeopathy, and was registered under the Australian Register of Homeopaths ("AROH"), a private member funded entity with a Code of Conduct, complaint handling scheme and registration fees. The AROH is not recognised under the National Law.
Patient A consulted with the Respondent at consulting rooms in Regional NSW. The consultations were in relation to specific medical issues, and overall wellbeing through homeopathy. Patient A was admitted to Southern Highlands Private Hospital from 10 October 2018 to 19 October 2018 for surgery relating to a cholecystectomy.

Particular 1

The Applicant alleged that from 2009 to January 2019 the Respondent failed to observe proper professional boundaries with Patient A in that he: 1. established and maintained a close friendship between his family and Patient A; The Respondent admitted this particular. 1. engaged in physical contact outside clinical consultation with Patient A; The Respondent disputed that any physical contact with Patient A was "inappropriate", describing his relationship with Patient A as a "close familial relationship", a description with which Counsel for the Applicant did not take issue, which was consistent with photographic evidence at HCCC 1, tab 13. As Counsel for the Applicant made clear, no part of any complaint against the Respondent involved alleged sexual impropriety. 1. attended Patient A's home on social visits; The Respondent admitted this particular. 1. invited Patient A to attend the practitioner's home for social visits including dinners and special occasions; The Respondent admitted this particular. 1. invited Patient A to attend holidays with the practitioner and his family; The Respondent admitted this particular. 1. invited Patient A to attend Person E's school functions. The Respondent admitted this particular.
The Respondent admitted, subject to the Applicant properly characterising the term "physical contact" in particular 1(b), the particulars of the complaint, and admitted that "he should have referred Patient A to another general practitioner to take over her care during the time he was treating her".
In her report (HCCC 1, tab 18, page 19, par 10), Professor Kotsirilos, the Applicant's expert, addressed the Respondent's personal relationship with Patient A, and recorded her opinion that the standard of conduct complained of falls significantly below the standard reasonably expected of a medical practitioner of an equivalent level of training or experience. Under the heading, "Reasons for Findings", Professor Kotsirilos referred to facts and circumstances which provided the foundation for her opinion. Reliance upon those matters has not been shown to have been misplaced.
We do not understand the Respondent to challenge Professor Kotsirilos' opinion evidence with respect to this, or any other particular complaint, on any basis. No cogent basis for declining to accept the expert opinion evidence of Professor Kotsirilos has been advanced by the Respondent.
Similar observations apply to Professor Kotsirilos' opinion evidence with respect to the appropriateness of the Respondent's conduct in continuing to treat Patient A, knowing that she was developing a personal relationship with his wife and daughter (HCCC 1, tab 18, page 29, par 19), and the appropriateness of his conduct in "engaging with [Patient A] in various social settings, including: visiting her home, inviting her to his home for celebrations and meals, hosting her a birthday celebration at his home, inviting and accompanying her to events at his daughter's school" (HCCC 1, tab 18, page 30, par 20).
We are comfortably satisfied by the evidence before us, including the admissions of the Respondent, that this particular has been established. We find that the Respondent is guilty of unsatisfactory professional conduct.

Particular 2

The Applicant alleged that, between 2004 and up to approximately 26 January 2019, the Respondent failed to observe proper professional boundaries when he received from Patient A, or became aware that family members had received: 1. a cheque made out to the Respondent in the sum of $40,000; The Respondent admitted the receipt of the sum of $40,000 but said that it was used to purchase the device referred to in particular 2(b). During the hearing, Counsel for the Applicant accepted that to have been the case. 1. a homeopathic diagnostic device known as a Cybertron; The Respondent denied this particular in view of his admission to particular 2(a). In view of the concession of the Applicant recorded above, this particular falls away. 1. a cheque for school fees in the amount of $92,204 for four years of school fees for Person E; 2. a cheque in the amount of $14,000 made out to Person C for a "car loan"; 3. three cheques made out to the Respondent's wife in the sums of $46,000 for "school fees", $10,000 for a "loan"; 4. a cheque in the amount of $12,000 made out to Person D.
The Respondent denied particulars 2(c) to (f) inclusive of the original Complaint. During the hearing, Counsel for the Respondent clarified that the denials with respect to paragraphs 2(c) to 2(f) were in response to the allegation that "he received" those monies, when the funds, the receipt of which was not denied, as the Respondent became aware, were received by members of his family. That clarification resulted in the amendment to the Application to which we have earlier referred. The Respondent clearly admitted the amended particulars of this complaint.
On 7 March 2019, the Applicant wrote to the Respondent (HCCC 1, tab 19) enclosing a redacted copy of the complaint found at (HCCC 1, tab 2). Included in the complaint were copies of a number of hand-written documents, apparently written by members of the Respondent's family, asking Patient A for financial assistance in some instances, and thanking her for such assistance in others. The Respondent replied to the Applicant's letter on 21 March 2019 (HCCC 1, tab 20).
In his reply to the Applicant, under the heading "accepting substantial gifts", the Respondent said that Patient A became "involved in paying student fees" for Person E which "was her [Patient A's] wish". The Respondent said that his wife was "involved in the discussion of this" with Patient A, and that he was "not involved in these discussions though obviously I did become aware" of Patient A's "generosity", adding that, "[a]t the time of these events, [Patient A] had virtually become a grandmother to my children and was part of the family". The Respondent added that Patient A was "generous to me and my family in other ways. She provided car loans to my children", all of which "things were initiated by her in a 'grandmotherly' way- never sought or cultivated by me. The real issue was that for many years she was part of the family and I accept I should have ceased providing her with medical treatment in these circumstances". The Respondent did not suggest when he became aware of what he should have done, or why he did not cease doing what he knew that he should not be doing.
In his statement of 29 July 2021, which was prepared for the purpose of the current proceedings, the Respondent said only that "I never had any discussions about money with [Patient A] at all, aside from her offer to purchase the Cybertron, which she had researched and had an interest in. Anything to do with money was as a result of [her] offering it directly to the children, or to B [the Respondent's wife], as with E's school fees". Letters written by members of the Respondent's family tendered by the Applicant cast doubt on the likelihood of the last assertion being true, but we do not need to and do not reject the Respondent's claim. This is an example of the failure of the Respondent to engage with the proceedings.
In the absence of any cross-examination of the Respondent, the Tribunal is unable to reject the Respondent's assertions with respect to his knowledge of, or "involvement" in the financial benefits which, according to his earlier statement, the Respondent was aware of. As their terms suggest, between his initial and later statements, the Respondent appears to have attempted to distance himself from Patient A's generosity to his family. Nothing emerging from either statement implies that the Respondent regrets that he allowed his family to benefit from Patient A to the extent and for as long as they undoubtedly did, or reveals any insight into the inappropriateness of his conduct in continuing his professional relationship with Patient A in those circumstances.
In the absence of any explanation from the Respondent, it can reasonably be inferred that only the death of Patient A terminated the Respondent's family's receipt of financial benefits from Patient A. The inventory of property attached to the Grant of Probate of the Will of Patient A discloses "debts owing to the deceased" by three members of the Respondent's family totalling $26,950.00, one of which appears to correspond with the $10,000 identified in particular 2(e)(ii). That impression is supported by the email from the solicitor acting for Patient A's estate of 2 August 2019 (HCCC 1, tab 12). The Respondent's attitude to the repayment of those debts has not been revealed to the Tribunal. Although, in view of the terms of the Will of Patient A, which will be referred to later in these reasons, little would probably change if he did so, as the evidence suggests that the debts will be repaid, and the Respondent has not revealed any intention to reimburse the estate any of the monies which Patient A paid to, or for the benefit of the Respondent's family.
In her report (HCCC 1, tab 18, page 21, par 11) Professor Kotsirilos addressed the Respondent's conduct in "accepting monetary gifts and/or loans from [Patient A], while continuing to treat her as a patient", and expressed her opinion that the standard of conduct falls significantly below the standard reasonably expected of a medical practitioner of an equivalent level of training or experience. In evaluating this particular Complaint, we are mindful of the amendment of the Applicant's Complaint after Professor Kotsirilos provided her report.
Under the heading "Reasons for Findings", Professor Kotsirilos particularised the various financial benefits received from Patient A. It is readily apparent that the Respondent did not directly benefit from some of the payments by Patient A upon which Professor Kotsirilos relied, and equally apparent that he indirectly benefitted significantly from them, as the letters to Patient A from members of his family found at HCCC 1, tab 2, pages 59 to 72 confirm. Nothing to which we have been referred establishes that the facts and circumstances upon which Professor Kotsirilos relied as the foundation for her opinion could not safely be relied upon. The evidence before us provides ample factual underpinning for her opinion.
Professor Kotsirilos considered that the Respondent's conduct was in breach of paragraphs 3.14, 8.1, 8.2.1, 8.2.2 and 8.11 of the Medical Board of Australia, 'Good Medical Practice: A Code of Conduct for Doctors in Australia' (March 2014) ("Code of Conduct"). Those paragraphs provided: "3.14 Personal relationships Whenever possible, avoid providing medical care to anyone with whom you have a close personal relationship. In most cases, providing care to close friends, those you work with and family members is inappropriate because of the lack of objectivity, possible discontinuity of care, and risks to the doctor and patient. In some cases, providing care to those close to you is unavoidable. Whenever this is the case, good medical practice requires recognition and careful management of these issues. … 8.1 Introduction In professional life, doctors must display a standard of behaviour that warrants the trust and respect of the community. This includes observing and practising the principles of ethical conduct. The guidance contained in this section emphasises the core qualifies and characteristics of good doctors outlined in Section 1.4. … 8.2.1 Maintaining professional boundaries. 8.2.2 Never using your professional position to establish or pursue a sexual, exploitative or other inappropriate relationship with anybody under your care. This includes those close to the patient, such as their carer, guardian or spouse or the parent of a child patient. Specific guidelines on sexual boundaries have been developed by the Medical Board of Australia under the National Law. … 8.11 Conflicts of interest Patients rely on the independence and trustworthiness of doctors for any advice or treatment offered. A conflict of interest in medical practice arises when a doctor, entrusted with acting in the interests of a patient, also has financial, professional or personal interests, or relationships with third parties, which may affect their care of the patient. Multiple interests are common. They require identification, careful consideration, appropriate disclosure and accountability. When these interests compromise, or might reasonably be perceived by an independent observer to compromise, the doctor's primary duty to the patient, doctors must recognise and resolve this conflict in the best interests of the patient."
We are comfortably satisfied, or feel an "actual persuasion" (Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34) that the Respondent has breached all but paragraph 8.2.2 of the provisions of the Code upon which Professor Kotsirilos relied. Not without some misgivings, we are not actually persuaded that the Respondent used his "professional position" to "establish", or "pursue" his admittedly "inappropriate" personal and financial relationships with Patient A. The evidence of lay witnesses relied upon by the Applicant, and Patient A's own cards and letters, were relied upon by the Respondent to contend that a finding of "exploitative" conduct by the Respondent was not open to the Tribunal. We will address that controversy later in these reasons, but, record our comfortable satisfaction that, even if his conduct was not "exploitative", the Respondent allowed inappropriate personal and financial relationships with Patient A to continue for almost a decade and a half.
For completeness, we record our acceptance of the opinion evidence of Professor Kotsirilos (HCCC 1, tab 18, page 22, par 12) that the receipt of $40,000 from Patient A to purchase medical equipment (Cybertron) by the Respondent was conduct which falls significantly below the standard reasonably expected of a medical practitioner of an equivalent level of training or experience. We also accept that such conduct was in breach of paragraphs 3.14, 8.1, 8.2.1 and 8.11 of the Code of Conduct.
Also for completeness, we record our acceptance of the opinion evidence of Professor Kotsirilos (HCCC 1, tab 18, page 34, par 23) that continuing to treat Patient A, knowing that she had given monetary gifts and personal loans to his children, was conduct which falls significantly below the standard reasonably expected of a medical practitioner of an equivalent level of training or experience. We also accept that such conduct was in breach of paragraphs 8.11, 8.11.1, 8.11.3 and 8.12.3 of the Code of Conduct.
We are comfortably satisfied by the evidence before us, including the admissions of the Respondent, that this particular has been established. We find that the Respondent is guilty of unsatisfactory conduct.

Particular 3

The applicant alleged that "in around 2009" the Respondent failed to observe proper professional boundaries when he and his wife met with Person G to discuss the potential for an Enduring Guardianship for Patient A and the possibility of being Co-Executor to Patient A's Will with Person G.
The Respondent stated in his reply to this complaint that he met with Person G at Person G's request to discuss the potential for an Enduring Guardianship for Patient A and the possibility of being a Co-Executor of Patient A's Will, neither of which possibilities materialised. The Respondent admitted that it was a failure to observe proper professional boundaries "but that he agreed to the request to meet out of a genuine desire for the best interests of Patient A".
The Respondent's explanation for the meeting with Person G is not fanciful. Neither of the potential roles discussed with Person G entailed probable financial gains for the Respondent. In the absence of any cross-examination of the Respondent, the Tribunal is unable to reject the Respondent's explanation for his admitted failure to observe proper professional standards. There is no evidence before the Tribunal establishing that the Respondent ever became an Attorney or Guardian for Patient A, or an Executor of her will. The Respondent and his wife are entitled to four fifths of the residuary estate of Patient A pursuant to her Will dated 24 April 2015 (HCCC 1, tab 10). There is no evidence establishing that either of them knew or believed that either of them would benefit under Patient A's Will until after her death.
Professor Kotsirilos considered the appropriateness of the Respondent's conduct in meeting with Person G to discuss his becoming Patient A's Enduring Guardian (HCCC 1, tab 18, page 24, par 13), and concluded that the Respondent's conduct falls significantly below the standard reasonably expected of a medical practitioner of an equivalent level of training or experience. Professor Kotsirilos concluded that the Respondent's conduct in considering Co-Executorship of Patient A's estate was conduct which falls significantly below the standard reasonably expected of a medical practitioner of an equivalent level of training or experience (HCCC 1, tab 18, page 24, par 14).
We are comfortably satisfied by the evidence before us, including the admissions of the Respondent, that this particular has been established. We are also satisfied that the conduct of the Respondent was in breach of paragraphs 8.1 and 8.2.1 of the Code of Conduct. We find that the Respondent is guilty of unsatisfactory professional conduct.
Having regard to the terms of the particulars of this Complaint, we need not engage with, and do not take into account, the passages in the report of Professor Kotsirilos which engage with the appropriateness of the Respondent's conduct in accepting distributions as a beneficiary of the estate of Patient A (HCCC 1, tab 18, page 26, par 15). Our reasons in that regard are more fully recorded later in the context of the Respondent's benefits under the Will of Patient A.

Particular 4

The Applicant alleged that, from January 2018 to March 2018, the Respondent failed to observe proper professional boundaries in that he and his wife utilised Patient A's car for personal use.
The Respondent admitted this particular.
Professor Kotsirilos concluded that the conduct of the Respondent in borrowing Patient A's personal vehicle for approximately six weeks, allowing his wife to utilise the vehicle and failing to pay for tolls incurred during that period was conduct which falls significantly below the standard reasonably expected of a medical practitioner of an equivalent level of training or experience (HCCC 1, tab 18, page 36, par 24).
We are comfortably satisfied by the evidence before us, including the admissions of the Respondent, that this particular has been established. We are satisfied that the conduct of the Respondent was in breach of paragraphs 8.11 and 8.11.1 of the Code of Conduct. We find that the Respondent is guilty of unsatisfactory professional conduct.

Particular 5

The Applicant alleged that, from 2013, the Respondent failed to observe proper professional boundaries by allowing Patient A to construct a small dwelling on the Respondent's property, "P", for the benefit of Patient A, to enable the Respondent to care for her in circumstances where she may become too frail or unwell to live on her own.
The Respondent admitted particular 5.
Photographs taken on 11 October 2019 (HCCC 1, tab 6) depict the "dwelling", which is clearly "fixed" to the property of the Respondent and his wife, and thus likely to be retained by them (Australian Provincial Assurance Co Limited v Coroneo (1938) 38 SR (NSW) 700, at 712 - 713).
Person F, Patient A's friend, who assisted her in various ways, including with the construction of the dwelling on "P", referred (HCCC 1, tab 5, pars 32 to 40) to the circumstances surrounding its construction and its apparent use after the death of Patient A. Person F estimated the cost of labour and materials for the dwelling paid for by Patient A to be in the vicinity of $100,000. Person F's evidence has not been challenged. There is no evidence that the Respondent or his wife has any intention of reimbursing the estate of Patient A for any of the cost of building the dwelling. Although there is no evidence of the impact, if any, of the dwelling on the value of "P", the evidence of Person F and the photographic evidence suggests that its retention constitutes a not insignificant, tangible or intangible benefit for the Respondent and his wife.
In his first statement, the Respondent said that the construction of the dwelling on "P" was "proposed and arranged" by Patient A and Person F, "with our agreement", for her "use during visits". The Respondent stated that "this was not a matter of financial benefit for us". The Respondent, at least inferentially, criticised Person F's receipt of "large sums- completely out of proportion to the original idea of building a small hut", but allowed construction to continue.
As the Respondent's wife, Person B, did not give evidence in the proceedings, we are not prepared to accept the claims made by him in his second statement with respect to conversations alleged to have occurred between Person B and the persons named in that context.
The Respondent's revelations with respect to financial benefits received from Patient A, and retained by his family, in his two statements are conveniently superficial. The failure to "come clean" about the transactions particularised in Complaint 1, which he admitted, is particularly significant when regard is had to the Respondent's second statement. That statement was made at a time when, it can reasonably be inferred having regard to his doctor's report of 20 July 2021, the Respondent had decided not to present himself for cross-examination in these proceedings. Nothing recorded by the Respondent's doctor in that report, or her report of 3 September 2020, suggested any impediment to the Respondent fully and frankly disclosing the circumstances surrounding the receipt and retention of financial benefits from Patient A. Far from doing so, as noted earlier, the Respondent appears to have attempted to distance himself from those matters.
Professor Kotsirilos considered the appropriateness of the Respondent's conduct in permitting Patient A to construct a dwelling on his property, while she was his patient, and concluded that such conduct falls significantly below the standard reasonably expected of a medical practitioner of an equivalent level of training or experience (HCCC 1, tab 18, page 38, par 25). Professor Kotsirilos concluded that the Respondent's conduct was in breach of a number of provisions of the Code of Conduct.
We are comfortably satisfied by the evidence, including the admissions of the Respondent, and his silence in the respect to which we have referred, that this particular has been established, and that his conduct was in breach of paragraphs 8.11, 8.11.1 and 8.11.3 of the Code of Conduct. We find that the Respondent is guilty of unsatisfactory professional conduct. In all the circumstances as we have found them, it would be difficult to decline to also make the finding of professional misconduct urged by the Applicant.

Particular 6

The Applicant alleged that the Respondent failed to observe proper professional boundaries when he signed Patient A's Death Certificate and Cremation Certificate in circumstances where: 1. family and friends of Patient A had requested an autopsy; 2. other causes of death were plausible; 3. due to the Respondent's close personal relationship, he should have sought a second opinion from a medical colleague.
The Tribunal had not been provided with either of the certificates which give rise to the current proceedings. They have been supplied since the hearing, and received into evidence without objection at tab 30 of HCCC 1.
The Respondent did not admit particular 6(a), and said that if any request for an autopsy had been made by the family of Patient A, he would not have signed her Death Certificate and Cremation Certificate. As became apparent during the hearing, and was implicitly admitted by the Applicant, there is no evidence that there was any request made to the Respondent for an autopsy by the family or friends of Patient A. That, however, did not, the Applicant asserted, preclude findings pursuant to particulars 6(b) and (c). The latter particular was admitted, the former was not. The Respondent asserted that, while there were other possible causes of death of Patient A, he was satisfied as to the cause of death for the purpose of completing the Death Certificate. It is thus necessary to consider the evidence in support of particular 6(b).
In her report of 30 April 2020 (HCCC 1, tab 18), Professor Kotsirilos provided her opinion "on the appropriateness of [the Respondent's] conduct in signing a Death Certificate for [Patient A] in circumstances where he had a personal relationship with the deceased" (page 28, par 16). Professor Kotsirilos' opinion was that it was "totally inappropriate" for the Respondent to have signed the Death Certificate in view of his close personal relationship with Patient A, and "professional boundary issues" including financial gains during most of the relationship.
Professor Kotsirilos considered (page 28, par 16) that Patient A "may have suffered from natural causes of death, or from TIA or uncontrolled Hypertension as stated in her Death Certificate by [the Respondent], but there were other plausible causes that have not been ruled out, such as overdose of pregabalin or oxycodone", which could have been accidental or unintentional, or intentional.
In support of her opinion that it was "inappropriate" for the Respondent to have signed Patient A's Cremation Certificate, "assuming Dr Cleary's version", Professor Kotsirilos referred (at page 29, par 17) to his close personal relationship with the patient, and the possibility of "other plausible causes of death" and "especially as friends and family had enquired the need for an autopsy".
On the assumption that the "witness' version of events" is correct, Professor Kotsirilos' opinion (at page 29, par 18) was that "an autopsy would have been a reasonable request" in view of the Respondent's personal relationship with Patient A, and that it was "inappropriate" for him to have signed a Cremation Certificate, seeking a second medical opinion being appropriate having regard to Patient A's symptoms, her unexplained pains and medication regime prior to death.
In his first statement, under the heading "Signing Death and Cremation Certificates", the Respondent referred to the circumstances in which he found the deceased "floating in the bath", the absence of apparent or suggested suspicious circumstances, the fact that the deceased was 87 years of age, and his opinion that "by far the most likely cause of death was a CVA secondary to hypertension". The Respondent said that he first became aware that he or any member of his family benefitted under her will after the death of Patient A. There is no evidence to the contrary.
The Respondent said, in relation to the autopsy, that Patient A "would certainly want her body disturbed as little as possible for her soul's journey" in view of her "essentially Buddhist philosophical beliefs of which I was well aware". The Respondent stated that if he "had considered that there was any medical or legal reason why an autopsy was required or a reason why the death needed to be reported to the Coroner, I would have proceeded accordingly", but that, having no such concerns, in the absence of any concerns being expressed by Patient A's family, the Police or anyone else, he saw no reason not to sign each certificate.
Patient A's brother, with whom the Respondent said he had spoken after the death of Patient A, did not give evidence contradicting the Respondent's claims with respect to the conversations having occurred, and having been in the terms the Respondent alleged. Person H stated (HCCC 1, tab 3, par 10) that, at the time of the comment by the Respondent about "avoiding an autopsy at all costs", she had "thought that he wanted us to respect patient A's wishes and beliefs". Person H did not allege that she, or anyone in her hearing had asked the Respondent to have an autopsy performed. Person F said only that he recalled "at some point" there being a conversation, apparently not involving the Respondent, "about whether or not an autopsy should be done". His recollection was that the "general consensus was that Patient A would not have wanted it and I concurred with that" (HCCC 1, tab 5, par 116). Person J, an acupuncturist and massage therapist who regularly saw Patient A from at least 2008, stated that Patient A would probably not have wanted an autopsy and that "[k]nowing her views on life, her spiritual and religious ideologies, everyone thought these should be respected" (HCCC 1, tab 7, par 87). Notes from Person K (HCCC 1, tab 9) record the Respondent telling her that Patient A's brother had asked for a post-mortem. The Respondent's statement is to the contrary.
The evidence does not establish that family or friends of Patient A had expressly or impliedly requested an autopsy. That does not preclude findings with respect to particulars 6(b) or (c) however, in view of the fact that Professor Kotsirilos' opinion was not solely, or, in our view, predominantly reliant upon the Respondent having been requested to order an autopsy. The circumstances identified by Professor Kotsirilos to which we have referred provided ample support for her opinion that it was "inappropriate" for the Respondent to have provided either a Death Certificate or a Cremation Certificate for Patient A on each of those grounds.
As recorded above, the Respondent admitted that he failed to observe proper professional boundaries when he signed Patient A's Death and Cremation certificates in circumstances where, due to his close personal relationship, he should have sought a second opinion from a medical colleague. In the absence of a "second opinion", the Respondent could not be satisfied that other causes of death were not plausible. The evidence of Professor Kotsirilos establishes that other causes of the death of Patient A were plausible (HCCC 1, tab 18, page 29, par 17). By failing to seek a second opinion, the Respondent was unable to exclude other plausible causes of death.
We are comfortably satisfied by the evidence before us, including the admissions of the Respondent, that particulars (b) and (c) have been established. We find that the Respondent is guilty of unsatisfactory professional conduct.

Particular 7

The Applicant alleged that the Respondent failed to seek professional advice with respect to the management of his relationship with Patient A at any time prior to her death, despite Patient A becoming a close family friend of the Respondent and his family.
The Respondent admitted this particular.
The findings recorded above with respect to particulars 1 to 6 are suggested to leave no scope for doubt that this particular is established without necessarily relying upon the Respondent admitting it. In neither of his statements did the Respondent anywhere suggest that he was not aware that the conduct complained of, and admitted by him, was inappropriate, notwithstanding that he continued to engage in that conduct. There is little doubt what any competent professional advice which the Respondent might have obtained would have been. In the absence of cross-examination of the Respondent, we are unable, and have no need, to make findings beyond the terms of this particular Complaint.
We are comfortably satisfied by the evidence before us, including what the Respondent has said, and not said, that this particular has been established. The conduct of the Respondent complained of falls significantly below the standard reasonably expected of a medical practitioner of an equivalent level of training or experience. We find that the Respondent is guilty of unsatisfactory professional conduct.

Particular 8

The Applicant alleged that the Respondent failed to transfer the care of Patient A to another general practitioner at any time prior to her death, despite Patient A becoming a close family friend of the Respondent and his family.
The Respondent admitted this particular. In his first statement, the Respondent admitted that he knew, as an "obvious step", that he should have transferred the care of Patient A to another general practitioner. Neither of the Respondent's statements advanced any credible or persuasive basis upon which the Respondent failed to do what he clearly knew that he should have done. Nor did the Respondent either assert that he had not known, from the time that he and his family developed a close personal relationship with her, that he should not continue to be Patient A's doctor.
We are comfortably satisfied by the evidence before us, including the admissions of the Respondent, that this particular has been established. The conduct complained of falls significantly below the standard reasonably expected of a medical practitioner of an equivalent level of training or experience. We find that the Respondent is guilty of unsatisfactory professional conduct.

Particular 9

The Applicant alleged that, due to the Respondent's conduct in particulars 1 to 8 of Complaint 1, the Respondent was in breach of paragraphs 3.14, 4 and 8 of the Code of Conduct.
The Respondent admitted that he was in breach of paragraph 3.14 of the Code of Conduct, but did not know and could not admit that he breached paragraphs 4 and 8 of the Code of Conduct without the Applicant clarifying which parts of paragraphs 4 and 8 it relied upon.
The Code of Conduct is found at HCCC 1, tab 40. Paragraph 3.14, which the Respondent admitted that he had breached, provides that: "Whenever possible, avoid providing medical care to anyone with whom you have a close personal relationship. In most cases, providing care to close friends, those you work with and family members is inappropriate because of the lack of objectivity, possible discontinuity of care, and risks to the doctor and patient. In some cases, providing care to those close to you is unavoidable. Whenever this is the case, good medical practice requires recognition and careful management of these issues".
Counsel for the Applicant clarified that the complaint with respect to paragraph 4 of the Code of Conduct related to paragraphs 4.4, 4.5, 8.2.1, 8.4.1, 8.4.4 and 8.4.5. Those paragraphs provide: "4.4 Teamwork Most doctors work closely with a wide range of healthcare professionals. The care of patients is improved when there is mutual respect and clear communication, as well as an understanding of the responsibilities, capacities, constraints and ethical codes of each other's professions. Working in a team does not alter a doctor's personal accountability for professional conduct and the care provided. When working in a team, good medical practice involves: 4.4.1 Understanding your particular role as part of the team and attending to the responsibilities associated with that role. 4.4.2 Advocating for a clear delineation of roles and responsibilities, including that there is a recognised team leader or coordinator. 4.4.3 Communicating effectively with other team members. 4.4.4 Informing patients about the roles of team members. 4.4.5 Acting as a positive role model for team members. 4.4.6 Understanding the nature and consequences of bullying and harassment, and seeking to eliminate such behaviour in the workplace. 4.4.7 Supporting students and practitioners receiving supervision within the team. 4.5 Coordinating care with other doctors Good patient care requires coordination between all treating doctors. Good medical practice involves: 4.5.1 Communicating all the relevant information in a timely way. 4.5.2 Facilitating the central coordinating role of the general practitioner. 4.5.3 Advocating the benefit of a general practitioner to a patient who does not already have one. 4.5.4 Ensuring that it is clear to the patient, the family and colleagues who has ultimate responsibility for coordinating the care of the patient. … 8.2.1 Maintaining professional boundaries. … 8.4.1 Keeping accurate, up-to-date and legible records that report relevant details of clinical history, clinical findings, investigations, information given to patients, medication and other management in a form that can be understood by other health practitioners. … 8.4.4 Ensuring that the records are sufficient to facilitate continuity of patient care. 8.4.5 Making records at the time of the events, or as soon as possible afterwards."
The matters admitted by the Respondent, and the evidence in support of this particular complaint, comfortably establish breaches of paragraphs 3.14 and 8.2.1 of the Code of Conduct. The asserted breaches of the other paragraphs are better addressed in the context of the consideration of Complaint 3, as Counsel for the Applicant's submissions confirm.
Other than to the extent recorded above, the Respondent did not engage with the particulars of Complaint 1 in either of his statements. Although we understand that the Respondent's doctor's reports were primarily relied upon to justify his refusal to present himself for cross-examination, and consideration of stage two, if it is enlivened, we find nothing observed by Dr Nada Rohde, or reported to her by the Respondent, materially impacts on the determination of this Complaint.

Complaint 2

The Applicant alleged that the Respondent is guilty of unsatisfactory professional conduct under s 139B(1)(a) and/or (l) of the National Law in that the Respondent: 1. engaged in conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the Respondent in 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.

Particular 1

The Applicant alleged that between 22 July 2011 and 27 March 2018 the Respondent provided homeopathic care and treatment to Patient A in circumstances where he: 1. prescribed homeopathic remedies in place of other evidence based treatment; 2. failed to undertake the following prior to administering homeopathic treatment: 1. take an adequate history; 2. perform a physical examination; 3. reach a diagnosis that a Medical Practitioner providing evidence based care would reach; 4. conduct appropriate testing; 5. engage in appropriate management of Patient A's chronic nausea and urine symptoms.
The Respondent replied to Complaint 2, which contained nine particulars, saying only "[i]n response to Complaint 2, the Respondent acknowledges at times he provided homeopathic remedies and that was practiced alongside mainstream medicine as was appropriate to his patients, and as was the case with Patient A". We interpret this as a denial of any unsatisfactory professional conduct.
In his first statement, the Respondent said nothing with respect to his provision of homeopathic care to Patient A. In his second statement, the Respondent again said nothing about his provision of homeopathic care and treatment to Patient A. Nothing submitted to the Tribunal by the Respondent indicates whether he is currently practising homeopathy.
As the record and a transcript of the hearing would confirm, the Respondent has completely failed to engage with this particular. In support of the Complaint, the Applicant relied upon the evidence of Professor Kotsirilos (HCCC 1, tab 18, page 5, par 1).
Professor Kotsirilos was asked to provide her opinion "on the appropriateness and adequacy of the Respondent's homeopathic care of Patient A". Professor Kotsirilos identified 13 consultation notes which prescribed homeopathics for Patient A. In reliance upon those consultation notes, Professor Kotsirilos concluded that the conduct complained of falls significantly below the standard reasonably expected of a medical practitioner of an equivalent level of training or experience.
Under the heading "Reasons for Findings", Professor Kotsirilos (HCCC 1, tab 18, pages 6-7) recorded her findings that "The medical notes by the Respondent lack adequate notes, history taking, physical examination, diagnosis, and appropriate testing and management". Professor Kotsirilos then referred to the Medical Council's Complementary Health Care Policy, particulars of which she set out in her report. Professor Kotsirilos also referred to material published by the Royal Australian College of General Practitioners in the Curriculum Statement of Integrative Medicine located in Appendix D to the Curriculum.
The fact that the Respondent's reply to this particular gives no indication of the extent, if any, to which he disputes the claim, and the reality that the evidence of Professor Kotsirilos is unchallenged, and based upon the Respondent's own records, entitle the opinion evidence of Professor Kotsirilos to be accepted. That evidence comfortably satisfies the Tribunal that the conduct of the Respondent falls significantly below the standard reasonably expected of a medical practitioner of an equivalent level of training or experience.
We are comfortably satisfied by the evidence before us, and the silence of the Respondent, that this particular has been established. We find that the Respondent is guilty of unsatisfactory professional conduct.

Particular 3

The Applicant alleged that, by providing homeopathic care and treatment to Patient A in the circumstances referred to at particular 2, the Respondent breached the Complementary Health Care Policy of the Medical Council of NSW. We observe that there was no particular 2, and that the reference in particular 3 to particular 2 above is clearly a reference to particular 1. The evidence of Professor Kotsirilos to which we have referred in addressing Complaint 1 is relevant for the purpose of this particular, as are our observations with respect to the Respondent's reply to this Complaint generally.
We are comfortably satisfied by the evidence before us, and the silence of the Respondent, that this particular has been established. We are comfortably satisfied that the conduct of the Respondent complained of falls significantly below the standard reasonably expected of a medical practitioner of an equivalent level of training or experience. We find that the Respondent is guilty of unsatisfactory professional conduct.

Particular 4

The Applicant alleged that, between October 2013 and January 2019, the Respondent failed to treat Patient A's recurrent genitourinary symptoms appropriately and adequately in that he: 1. failed to refer Patient A to a relevant specialist, such as a urologist, gastroenterologist or gynaecologist, to assess Patient A's recurrent symptoms; 2. ceased requesting urine tests for Patient A after June 2017 despite her continuing to suffer chronic urinary symptoms until 2019; 3. failed to provide a diagnosis or differential diagnoses for Patient A's recurrent symptoms; 4. failed to identify the cause of Patient A's recurrent urinary symptoms; 5. failed to undertake a thorough abdominal and gynaecological systemic review; 6. failed to perform a relevant physical examination; 7. failed to organise suitable investigations, including a gynaecological assessment; 8. failed to provide appropriate prescriptions or treatment plans despite Patient A's recurrent urinary symptoms.
As with particular 1, the Respondent made no effort to engage with this particular or any part of it or, for that matter, to even respond in the most general of terms to this particular. The Respondent's reply was directed solely to the particular with respect to the provision of homeopathic remedies alongside mainstream medicine.
Professor Kotsirilos was asked to provide her opinion on the appropriateness and adequacy of the Respondent's care and treatment of Patient A's recurrent genitourinary symptoms, "assuming [the Respondent's] version of events" (HCCC 1, tab 18, pages 8-9, par 4).
Professor Kotsirilos was of the opinion that the conduct of the Respondent falls significantly below the standard reasonably expected of a medical practitioner of an equivalent level of training or experience. In support of that finding, Professor Kotsirilos referred to each of the eight matters particularised in this Complaint. Professor Kotsirilos referred to the Respondent's clinical notes, 11 urine tests for microbiology and sensitivity from 15 July 2011 until 9 June 2017 which demonstrated 3 confirmed cases of urinary infection. Professor Kotsirilos observed that "recurrent urinary tract infections are common in elderly people". Professor Kotsirilos referred to the recorded results of each of the midstream urine reports found in the clinical records provided to her.
Under the heading "Persistent Complaints of UTI like Symptoms", Professor Kotsirilos referred to clinical notes of another medical practitioner who also cared for Patient A from 26 February 2018 to 30 July 2018. Professor Kotsirilos recorded that, despite what emerged from the records of the other medical practitioner, there was "no action by [the Respondent] to adequately assess and manage the patient's urinary symptoms after 9th June 2017." The records of the other health care practitioner to which Professor Kotsirilos referred recorded numerous "UTI symptoms" and UTI attacks. That evidence provides further support for accepting Professor Kotsirilos' opinion that the conduct of the Respondent complained of falls significantly below the standard reasonably expected of a medical practitioner of an equivalent level of training or experience.
The evidence of Professor Kotsirilos is unchallenged by the Respondent. Unsurprisingly, having regard to his response to Complaint 2 generally, learned Counsel for the Respondent was unable to make submissions either challenging the opinion professed by Professor Kotsirilos, or her conclusion that the conduct of the Respondent fell significantly below the standard reasonably expected of a medical practitioner of an equivalent level of training or experience.
We are comfortably satisfied by the evidence before us, and the silence of the Respondent, that this particular has been established. The evidence establishes that the conduct of the Respondent complained of falls significantly below the standard reasonably expected of a medical practitioner of an equivalent level of training or experience. We find that the Respondent is guilty of unsatisfactory professional conduct.

Particular 5

The Applicant alleged that between 2014 and January 2019 the Respondent failed to treat Patient A's recurrent nausea appropriately and adequately in that he: 1. failed to refer Patient A to a relevant specialist, such as a gastroenterologist, urologist or gynaecologist to assess Patient A's recurrent symptoms; 2. failed to provide a diagnosis or differential diagnoses for Patient A's recurrent symptoms; 3. failed to identify the cause of Patient A's recurrent nausea symptoms; 4. failed to organise suitable investigations such as abdominal and pelvic ultrasounds into Patient A's recurrent nausea symptoms; 5. failed to provide appropriate prescriptions or treatment plans despite Patient A's recurrent nausea symptoms.
As noted with respect to earlier particulars, the Respondent did not engage with this particular in his reply.
Professor Kotsirilos addressed the issues which inform this particular (HCCC 1, tab 18, pages 9-10). Professor Kotsirilos was of the opinion that the conduct of the Respondent complained of falls significantly below the standard reasonably expected of a medical practitioner of an equivalent level of training or experience.
Under the heading "Reasons for Findings", Professor Kotsirilos set out in detail matters which, in her expert opinion, constituted inadequacies in the Respondent's care and treatment of Patient A, each of which finds expression in the six matters articulated in support of this particular claim. The evidence of Professor Kotsirilos is unchallenged, on any basis, and is accepted.
We are comfortably satisfied by the evidence before us, and the silence of the Respondent, that this particular has been established. The evidence establishes that the conduct of the Respondent complained of falls significantly below the standard reasonably expected of a medical practitioner of an equivalent level of training or experience. We find that the Respondent is guilty of unsatisfactory professional conduct.

Particular 6

The Applicant alleged that the Respondent failed to treat Patient A appropriately and adequately when he prescribed Oxycodone, a Schedule 8 drug of addiction, on the dates and in the circumstances set out in Schedule B to the Complaint in circumstances where he: 1. prescribed Oxycodone without clinical indication; 2. failed to conduct an appropriate clinical assessment of the patient prior to prescribing the medication; 3. failed to manage long term addiction concerns, despite prescribing a drug of dependency over a long period of time; 4. failed to adjust the prescribing of Oxycodone despite Patient A suffering numerous side effects that could be attributed to chronic opioid use including falls, mood disturbance, chronic nausea, abdominal pain and disordered thinking; 5. failed to refer Patient A to a psychologist for assessment and investigation of other approaches to manage chronic pain; 6. failed to arrange a one year review of opioid prescribing despite opioids being prescribed over a number of years; 7. the practitioner knew or ought to have known that Patient A was at risk of becoming dependent on the drug; 8. the practitioner knew or ought to have known that Patient A was likely to abuse the drug.
As with other particulars of Complaint 2, the Respondent did not engage with any of these allegations. Having regard to the seriousness of the subject matter of this particular, the Respondent's failure to engage with these allegations in any way is very concerning.
Professor Kotsirilos considered the appropriateness of the Respondent's prescribing of Oxycodone to Patient A over several years (HCCC 1, tab 18, page 11, par 6). Professor Kotsirilos based her opinion significantly on the clinical records of the Respondent which were provided to her. Professor Kotsirilos observed in that regard that "[m]any of the consultation services did not provide sufficient clinical information to explain the service, and for prescriptions generated for drugs of dependency such as codeine, pregabalin and oxycodone. There is insufficient clinical detail for another practitioner in the same discipline to understand the clinical justification for continued prescribing of Drugs of Dependency without any plans, often no attempts for changes to dosages, instructions or intentions to manage the long-term addiction concerns that had likely occurred. The medical records are absent or so poor to clinically justify the prescription."
Professor Kotsirilos recorded other inadequacies in the clinical notes of the Respondent which were produced to her. Recording that: "[a]s there are no adequate clinical notes in the medical file, it is not clear of the frequency of the patient's use of analgesics including oxycodone, the purpose of their use, if there were any clinical benefits or side-effects from their use. Side-effects to oxycodone are not uncommon in elderly responsible for increased risk of falls and sedation". In reliance upon those findings, Professor Kotsirilos was of the opinion that the conduct complained of falls significantly below the standard reasonably expected of a medical practitioner of an equivalent level of training or experience.
Under the heading "Reasons for Finding", (pages 12-13), Professor Kotsirilos recorded that the patient medical records failed to "demonstrate in many cases any notes or generally lacked content and therefore clinical details about" 25 particular relevant matters, concluding that Patient A "suffered falls, mood disturbance, chronic nausea, abdominal pain and possibly disordered thinking - all known side-effects of chronic opioid use".
We are comfortably satisfied by the evidence before us, including the admissions of the Respondent as admitted by his learned Counsel at the commencement of the hearing, that this particular has been established. We find that the conduct complained of falls significantly below the standard reasonably expected of a medical practitioner of an equivalent level of training or experience. We find that the Respondent is guilty of unsatisfactory professional conduct.

Particular 7

The Applicant alleged that, on seven occasions, the Respondent inappropriately prescribed Oxycodone, a Schedule 8 drug of addiction, outside of a medical consultation. The seven occasions referred to in the particular were referred to as being set out at Schedule B to the Complaint.
Professor Kotsirilos recorded as a "further finding" (HCCC 1, tab 18, page 13) that a number of prescriptions for Oxycodone were generated by the Respondent "outside of Medicare billings", her opinion being that the conduct complained of falls significantly below the standard reasonably expected of a medical practitioner of an equivalent level of training or experience.
Professor Kotsirilos recorded in detail the dates on which, and pharmacies at which, prescriptions of Oxycodone 5mg (20 tablets) for Patient A were filled. Based on those source documents, Professor Kotsirilos observed that "[t]his implies that prescription for a drug of addiction may have taken place outside of a medical consultation". The implications of the source documents, and the inferences Professor Kotsirilos drew from them, were recorded in detail (pages 14-17). None of those findings or expressions of opinion has been expressly or impliedly challenged in any way. There is no suggestion that the source documents to which Professor Kotsirilos had regard were erroneous.
Professor Kotsirilos referred to the record keeping requirements with which the Respondent should have been compliant. As her report makes clear, the Respondent fell well short of satisfying those requirements.
In summary, Professor Kotsirilos found that "[a]s the medical records lacked content, there was no clinical justification of the prescriptions for drugs of dependency", and appeared "merely to support the drug dependence of a person". Further, Professor Kotsirilos recorded that "[t]he medical records did not demonstrate meaningful objectives and appropriate strategies to reduce the risks associated with providing drugs of dependence to a drug-dependent person". Further, Professor Kotsirilos recorded that there was "no record of attempts to consult the Department of Health or use Advisory Services if [the Respondent] was not confident how to manage [Patient A's] ongoing long term prescribing of drugs of dependency; he could have consulted with the Department of Health" and used a number of "advisory lines" which Professor Kotsirilos identified.
As with other particulars of this Complaint pertaining to the Respondent's conduct with respect to Patient A's access to drugs of dependency, we are mindful that: "the proper handling and prescribing of drugs by medical practitioners are of the greatest importance to the community. If a medical practitioner handles or carries out that very great responsibility in a way which is reckless and which shows a disregard to the law it cannot be said that he is fit at such a time to be a medical practitioner" (Spicer v New South Wales Medical Board & Ors (Court of Appeal (NSW) 19 February 1981, unrep), per Hope JA, with whom Reynolds and Hutley JJA agreed).
The Applicant's learned Counsel carefully identified all of the source documentation which provided, in our view, a more than ample foundation for the expert opinion evidence of Professor Kotsirilos. We are comfortably satisfied by the evidence before us, including the submissions of the Respondent, that this particular has been established. The conduct complained of falls significantly below the standard reasonably expected of a medical practitioner of an equivalent level of training or experience. We find that the Respondent is guilty of unsatisfactory professional conduct.

Particular 8

The Applicant alleged that between September 2014 and January 2019 the Respondent took back unused Oxycodone packets from Patient A and failed to: 1. record the return of drugs of addiction: 1. on Patient A's file; 2. in his practice logbook; 1. return the unused tablets to the dispensing pharmacy for logging, signing and appropriate discarding.
The Respondent made no response to this allegation. In his first statement (HCCC 1, tab 20, page 4) the Respondent said only "It is true that on a number of occasions I took back some unused Endone packets" from Patient A.
In support of this particular, the Applicant relied upon the evidence of Professor Kotsirilos (HCCC 1, page 19, par 9). Professor Kotsirilos' opinion on the appropriateness of the Respondent's decision to accept and destroy unwanted Endone tablets from Patient A was that the conduct complained of falls significantly below the standard reasonably expected of a medical practitioner of an equivalent level of training or experience.
In the light of the Respondent's concession with respect to unused Endone packets, Professor Kotsirilos posed the question "What did [the Respondent] do with the tablets?" Professor Kotsirilos recorded that "Ideally [the Respondent] should have recorded the return of drugs of addiction in the patient's file, recorded it in a practice logbook and returned the tablets to the same chemist it was dispensed for logging, signing and appropriate discarding".
Professor Kotsirilos referred to the absence of "adequate clinical notes in the medical file" rendering unclear the frequency of Patient A's use of Oxycodone, "the purpose of its use, if there was any clinical benefit or side effects from its use which is common in elderly". Professor Kotsirilos further recorded that the Respondent's medical records do not indicate that the Respondent took "an appropriate course of action if the tablets were returned to him such as recording the return of drugs in the patient's file".
We are comfortably satisfied by the evidence before us, including the admissions of the Respondent, that this particular has been established. The conduct of the Respondent complained of falls significantly below the standard reasonably expected of a medical practitioner of an equivalent level of training or experience. We find that the Respondent is guilty of unsatisfactory professional conduct.

Particular 9

The Applicant alleged that, in October 2018, the Respondent failed to treat Patient A appropriately and adequately during and after her surgery at Southern Highlands Hospital in that he: 1. discontinued Patient A's use of Lyrica, a Schedule 40 drug, without adequate clinical notes in relation to the decision to cease the use of Lyrica; 2. after the patient suffered a convulsion following ceasing the use of Lyrica, the Respondent failed to undertake an adequate assessment of Patient A; 3. prescribed two packets of Oxycodone to Patient A when the Respondent knew or ought to have known that Patient A was likely to abuse the drug; 4. inappropriately prescribed homeopathic treatments whilst Patient A was an inpatient at the hospital without: 1. informing Patient A's treating medical team; 2. clinical justification.
Professor Kotsirilos' opinion as to the appropriateness of the Respondent's prescribing of Lyrica to Patient A, following her cholecystectomy in October 2018 was that the conduct of the Respondent complained of falls significantly below the standard reasonably expected of a medical practitioner of an equivalent level of training or experience.
In support of her opinion (HCCC 1, tab 18, page 18, par 7), Professor Kotsirilos referred to the Southern Highlands Private Hospital Discharge Summary (HCCC 1, tab 19), which recorded that Patient A suffered hyponatremia and a seizure after surgery for a cholecystectomy on 23 September 2018. At that time the Respondent stated that Patient A's chronic abdominal pain was "neuropathic" in origin and treated Patient A with Lyrica with efforts to cease Endone. Professor Kotsirilos recorded that "when discharged there is inadequate information in the medical records [of the Respondent] to explain why Lyrica was ceased". The Respondent reported to the Health Care Complaints Commission that in October 2018 Patient A "was not receiving any relief from Lyrica so he gave her two scripts of Endone, to be used only if necessary".
Professor Kotsirilos' opinion was that "It is fair to stop a medication that has no clinical benefit but to then resume endone and provide two scripts to an elderly person was not reasonable. It was unreasonable of [the Respondent] to believe or trust an elderly person would not mismanage two packets of endone".
Professor Kotsirilos found "inadequate information in the notes to provide adequate assessment and feedback about the convulsion that occurred after stopping Lyrica".
Other than the report from the Respondent to which Professor Kotsirilos referred, the only reference the Respondent made with respect to this particular (in his first statement) was that "I did become aware after returning from leave that Patient A had ceased Lyrica suddenly - which was not my intention - and had suffered a convulsion. There was discussion then of ensuring that any future cessation of Lyrica would need to be managed very gradually". It is implicit in the evidence of Professor Kotsirilos that she found no, or inadequate, recording of either the "discussion", or subsequent management of the kind which the Respondent suggested to be required.
The Respondent further acknowledged, in his first statement, that his records for Patient A "are somewhat limited and unusual in form". It is readily apparent that the Respondent substantially admitted this particular.
We are comfortably satisfied by the evidence before us, including the admissions of the Respondent, that this particular has been established. The conduct of the Respondent complained of falls significantly below the standard reasonably expected of a medical practitioner of an equivalent level of training or experience. We find that the Respondent is guilty of unsatisfactory professional conduct.

Particular 10

The Applicant alleged that, from 12 August 2014 to 25 January 2019, the Respondent inappropriately billed Medicare for treatment provided to Patient A in circumstances where: 1. 151 separate consults were billed to Medicare; 2. 25 medical notes were made during that period; 3. 126 billed consults do not have contemporaneous medical consultation notes, in breach of Medicare requirements.
In his reply, the Respondent did not engage with his particular. Nor did he in either of his statements.
In the evidence relied upon by the Applicant of Professor Kotsirilos (HCCC 1, tab 18, pages 50-52), Professor Kotsirilos' opinion was that, with respect to alleged "inappropriate billing", the conduct of the Respondent complained of falls significantly below the standard reasonably expected of a medical practitioner of an equivalent level of training or experience.
The Medicare report of Patient A upon which Professor Kotsirilos based her opinion with respect to this particular is found at HCCC 1, tab 36. There is no suggestion that any part of Professor Kotsirilos' opinion evidence is vitiated by inaccuracies with respect to interpretation of the Medicare report, or inaccuracies in the Medicare report itself.
Learned Counsel for the Applicant provided the Tribunal with a helpful analysis of the relevant transactions by way of an aide memoire. The details emerging which inform the particulars are consistent with the source documents and Professor Kotsirilos' summary of them. In reliance upon her analysis of the Medicare report of Patient A, Professor Kotsirilos summarised that only 25 medical notes from mid-2011 until the end of 2018 were recorded by the Respondent in the clinical notes for Patient A. The clinical records of Patient A to which Professor Kotsirilos referred which had been provided by the Respondent are found at HCCC 1, tab 33.
Professor Kotsirilos summarised that "[t]his implies that medical records were not recorded on every visit of the days Medicare was billed for the patient's consultations", in most instances visits or billings were "occurring on a weekly basis" with "predominant item numbers" representing the "vocationally registered item numbers", and, after 12 June 2018, "non-vocationally registered item numbers". Professor Kotsirilos observed that the level of billings to Medicare did not correlate with the consultation notes as recorded by the Respondent, her opinion being that the Respondent's conduct was significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience.
Professor Kotsirilos set out in some detail the requirements of Medicare of a medical practitioner to document contemporaneous medical consultation notes on every visit by a patient, noting that this has "not occurred for the majority of visits" by Patient A. The Respondent thereby failed to fulfil Medicare Guidelines in the opinion of Professor Kotsirilos. The report set out, accurately it is acknowledged by the Respondent, the Medicare item numbers with which the Respondent was required but failed to comply.
We are comfortably satisfied by the evidence before us, including the admissions of the Respondent, that this particular has been established. The conduct of the Respondent complained of falls significantly below the standard reasonably expected of a medical practitioner of an equivalent level of training or experience. We find that the Respondent is guilty of unsatisfactory professional conduct.

Complaint 3

The Applicant alleged that the Respondent is guilty of unsatisfactory professional conduct under s 139B(1)(b) of the National Law in that the Respondent contravened: (i) the Health Practitioner Regulation (New South Wales) Regulation 2010 (NSW) (now repealed) ("the Regulation 2010"); (ii) the Health Practitioner Regulation (New South Wales) Regulation 2016 (NSW) ("the Regulation 2016").
In support of the Complaint the Applicant relied upon two particulars.

Particular 1

The Applicant alleged that, between approximately 22 July 2011 and 31 August 2016, the Respondent contravened clause 1 of Schedule 2 of the Regulation 2010 in that he failed to adequately document each of, either alone or in combination, Patient A's medical records: 1. history; 2. results of physical examination; 3. diagnosis; 4. a plan for treatment.
In his reply, the Respondent stated "[t]he Respondent admits that his records were insufficiently detailed but his time in consultation was always focused on providing the best care to Patient A". The Respondent did not, other than to the extent earlier referred to, engage with this Complaint in either of his statements.
The opinion of Professor Kotsirilos with respect to the appropriateness and adequacy of the Respondent's clinical records for Patient A, including the Respondent's practice of having Patient A prepare notes that later formed part of her patient records, was that the conduct of the Respondent complained of falls significantly below the standard reasonably expected of a medical practitioner of an equivalent level of training and experience (HCCC 1, tab 18, pages 43-50, par 27).
The basis of Professor Kotsirilos' opinion was the clinical records provided by the Respondent (found at HCCC 1, tabs 33-34). Professor Kotsirilos found the "majority of medical records by [the Respondent] are absent" and that the few entries recorded are "mostly illegible and of poor quality". Professor Kotsirilos stated that "Notes by the patient cannot be used to replace good medical records by doctors".
Professor Kotsirilos identified particular deficiencies in the medical records maintained by the Respondent, noting that the records "in general lack considerable detail" with respect to relevant history and presenting problems, physical examination, mental state examination, diagnosis and differential diagnosis, investigations and management plan including a plan to deal with drugs of dependency.
Under the heading "The reasons for this assessment are based on the following serious concerns", Professor Kotsirilos set out, in detail and with precision, deficiencies which she identified in the Respondent's medical records for Patient A (pages 44-46). There is no challenge to the accuracy of anything there recorded by Professor Kotsirilos with respect to the contents of the Respondent's records, or the opinions which she formed in reliance upon them.
Professor Kotsirilos summarised the matters emerging from the Respondent's medical notes under the heading "The medical records in general lack considerable detail", specifically with respect to "relevant history and presenting problems", "physical examination findings", "mental state examination", "diagnosis and differential diagnosis" and investigations ordered, in some instances, or not ordered in other instances, by the Respondent, and "management plan" (pages 48-49).
As is apparent from the nature and number of the deficiencies in the Respondent's medical records for Patient A, his assertion, in his first statement, that his "records for Patient A are somewhat limited and unusual in form", was an understatement of considerable magnitude. Professor Kotsirilos set out a number of sections from the Code of Conduct to which we have earlier made reference.
In particular, Professor Kotsirilos found that the Respondent had failed to comply with the requirements of paragraph 8.4 which records that: "maintaining clear and accurate medical records is essential for the continuing good care of patients. Good medical practice involves: 8.4.1 Keeping accurate, up to date and legible records that report relevant details of clinical history, clinical findings, investigations, information given to patients, medication and other management in a form that can be understood by other health practitioners, … 8.4.4 ensuring that records are sufficient to facilitate continuity of patient care, and 8.4.5 making records at the time of the events or as soon as possible afterwards."
We are comfortably satisfied by the evidence before us, including the admissions of the Respondent, that this particular has been established. The conduct of the Respondent complained of falls significantly below the standard reasonably expected of a medical practitioner of an equivalent level of training or experience. We find that the Respondent is guilty of unsatisfactory professional conduct.

Particular 2

The Applicant alleged that between approximately 1 September 2016 and January 2019 the Respondent contravened clause 1 of Schedule 4 of the Regulation 2016 in that he failed to adequately document each of the following, either alone or in combination, in Patient A's medical records: 1. history; 2. results of physical examination; 3. diagnosis; 4. a plan for treatment.
In his reply, the Respondent stated "The Respondent admits that his records were insufficiently detailed but his time in consultation was always focused on providing the best care to Patient A". The Respondent did not, other than to the extent earlier referred to, engage with this Complaint in either of his statements.
The opinion of Professor Kotsirilos with respect to the appropriateness and adequacy of the Respondent's clinical records for Patient A, including the Respondent's practice of having Patient A prepare notes that later formed part of her patient records, was that the conduct of the Respondent complained of falls significantly below the standard reasonably expected of a medical practitioner of an equivalent level of training and experience (HCCC 1, tab 18, pages 43-50, par 27).
The basis of Professor Kotsirilos' opinion was the clinical records provided by the Respondent (found at HCCC 1, tab 33-34). As in the case of Particular 1, Professor Kotsirilos found the "majority of medical records by the Respondent are absent" and that the few entries recorded are "mostly illegible and of poor quality". Professor Kotsirilos stated that "Notes by the patient cannot be used to replace good medical records by doctors".
Professor Kotsirilos identified particular deficiencies in the medical records maintained by the Respondent, noting that the records "in general lack considerable detail" with respect to relevant history and presenting problems, physical examination, mental state examination, diagnosis and differential diagnosis, investigations and management plan including a plan to deal with drugs of dependency.
Under the heading "The reasons for this assessment are based on the following serious concerns", Professor Kotsirilos set out, in detail and with precision, deficiencies which she identified in the Respondent's medical records for Patient A (pages 44-46). There is no challenge to the accuracy of anything there recorded by Professor Kotsirilos, or the opinions which she formed in reliance upon them.
The findings recorded in connection with Particular 1 of this Complaint, at [150] and [151] of our reasons, also inform and support our findings with respect to this Particular.
Professor Kotsirilos also found that the Respondent had failed to comply with the requirements of paragraph 8.4 of the Code, which are set out at [152] of these reasons.
We accept the expert opinion evidence of Professor Kotsirilos, and are comfortably satisfied that the conduct complained of falls significantly below the standard reasonably expected of a medical practitioner of an equivalent level of training and experience. We find the Respondent guilty of unsatisfactory professional conduct.

Complaint 4

The Applicant alleged that the Respondent was guilty of professional misconduct under s 139E of the National Law in that he: (i) engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of his registration and/or (ii) engaged in more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify the suspension or cancellation of the Respondent's registration.
The Applicant's Complaint made clear that Complaints 1 and 2 and the particulars thereof were repeated and relied upon individually in support of the finding urged on its behalf, and that Complaints 1, 2 and 3 and the particulars thereof were relied upon cumulatively in support of that finding if the primary finding was not made. The Respondent stated in his reply that he "denies that he behaved in any way that was unethical or exploitative". He further stated that "[a]lthough he acknowledges that he should have transferred care of Patient A, given that she became a close family friend, at all times he was motivated to provide the best possible care for Patient A" and that "[i]n those circumstances, the conduct does not amount to professional misconduct".
Other than to the extent which we have earlier recorded, in neither of his statements did the Respondent advance any explanation for the acts and omissions which he admitted, or did not deny, or otherwise suggest anything which materially impacts upon the determination of this Complaint. The Respondent's contention that "at all times he was motivated to provide the best possible care for Patient A" suggests a considerable lack of insight, either during the time he was treating Patient A, or currently, into the nature and extent of the numerous respects in which his care of Patient A was likely to be, and may have been, severely compromised.
In the concluding portion of her report (HCCC 1, tab 18, pages 52-57, par 6), Professor Kotsirilos observed that "[t]his is an unfortunate situation". Professor Kotsirilos reiterated that "the family [of the Respondent] became very close with the patient resulting in the financial assistance they received along the way. [The Respondent] should have immediately referred the patient to another GP for adequate medical care. [The Respondent] chose to have a personal and financial relationship with the patient and continue being the patient's doctor. This is an unethical relationship." We accept Professor Kotsirilos' opinion, and the basis of it. The Respondent has never suggested otherwise. We have earlier referred to the failure of the Respondent to engage with the serious issues revealed by the evidence, particularly with respect to the financial relationship between Patient A and the Respondent and his family, and his unexplained failure to cease treating Patient A, despite knowing that he should have done so.
Professor Kotsirilos further recorded that "[b]ased on the clinical records alone, the patient did not receive the best medical care she deserved". A number of particular reasons for that opinion were provided by Professor Kotsirilos, and they are, as Professor Kotsirilos recorded, matters of "great concern". Professor Kotsirilos was not in a position to "assume the oxycodone tablets were for the doctor's personal use". To the extent that it might have been urged, which we doubt, no part of our determination of the Complaints against the Respondent involve any finding that, in any way, the unused Oxycodone tablets were for the Respondent's personal use. The Respondent's superficial, almost dismissive responses to the Complaints about his patient records, particularly with respect to drugs of addiction, reinforce the opinions of Professor Kotsirilos, and support a finding that he is guilty of unsatisfactory professional conduct.
Professor Kotsirilos reiterated that, whilst Patient A may have suffered from death from natural causes or those stated in her Death Certificate certified by the Respondent, there were other "plausible causes that have not been ruled out". As is not in doubt, by not obtaining a second opinion, the Respondent precluded any exploration of those other plausible causes. The evidence does not establish that obtaining a second opinion would have violated Patient A's beliefs, as they are revealed through the evidence of the Respondent and witnesses relied upon by the Applicant.
Professor Kotsirilos further recorded that "[b]ased on absent and extremely poor medical records, no attempt to wean off drugs of dependency and explore feasible alternatives, failed to investigate symptoms further after June 2017 and referring the patient to another GP and relevant specialists resulted in poor medical care" for Patient A. As Professor Kotsirilos also recorded, accurately, at the same time the Respondent and his family benefitted by "receiving major financial assistance from an elderly patient".
Professor Kotsirilos' ultimate conclusion was that "[t]hese combined concerns have resulted in significant departures from standards of conduct as expected of a medical practitioner of similar expertise and training." In support of her conclusion, Professor Kotsirilos referred to a number of provisions of the "Good Medical Practice Guidelines", in particular, sections 1.4, 2, 2.11, 2.12, 2.13, 2.14, 2.23, 2.24, 2.26, 2.28, 2.2.12, 3.14, 8.1, 8.2.1, 8.2.2, 8.4.1, 8.4.4, 8.4.5, 8.11, 8.11.1, 8.11.2, 8.11.3 and 8.12.3, which we find proved.

Conclusion with respect to Stage One

Counsel for the Respondent was, necessarily in the circumstances, constrained in the submissions which could properly be made on behalf of the Respondent. We accept, as submitted by Counsel for the Respondent, that an "objective test" governs the determination of Stage One of the proceedings. However, we cannot accept the submission of Counsel for the Respondent that his conduct was not "exploitative" in all the circumstances as we have found them. We are influenced in so doing by the ordinary meaning of "exploitation", which connotes utilisation for selfish purposes.
Given, however, the number, nature and extent of the findings recorded above with respect to the conduct of the Respondent complained of falling significantly below the standard reasonably expected of a medical practitioner of an equivalent level of training or experience, were we to decline to make a finding of exploitation that would not, in our view, justify declining to make a finding of professional misconduct if it is otherwise justified.
As the evidence reveals, and as learned Counsel for the Applicant submitted, the unsatisfactory professional conduct of the Respondent which has been established is longstanding, recurrent, largely admitted or undenied, at best explained in only superficial generality, and falls within three important categories. These have been described as "boundary issues" (Complaint 1), care and treatment issues (Complaint 2) and record keeping issues (Complaint 3).
We are comfortably satisfied that the Applicant has established professional misconduct pursuant to s 139E of the National Law. The instances of unsatisfactory professional conduct which have been established, when considered together, in our view amount to conduct of a sufficiently serious nature to constitute professional misconduct.
If, as may be the case, the Respondent relies upon the reports of Dr Rohde (Exhibit R1) in support of his resistance to a finding(s) of professional misconduct, we do not discern anything emerging from either report which provides comfort for the Respondent.
For completeness, we record that we rely upon the instances of unsatisfactory professional conduct which we have found to be established, traversing the three areas identified above, as amounting to conduct of a sufficiently serious nature to constitute professional misconduct. (Qasim v Health Care Complaints Commission [2015] NSWCA 282 at [29]).
In Health Care Complaints Commission v Karalasingham [2007] NSWCA 267, at [67], Basten JA said that the definition of "professional misconduct" is "focused on the nature of the conduct, which must have the capacity to justify" suspension or removal of the practitioner's name from the Register (whether or not such an order should be made in the particular circumstances). His Honour referred to how the "statutory constraints operate differently", observing that a person may not be suspended or deregistered unless the Tribunal finds the person is, inter alia, guilty of professional misconduct. The discretion of the Tribunal was suggested to otherwise be "at large and will depend upon the circumstances of the individual case".
In Chen v Health Care Complaints Commission (2017) 95 NSWLR 334; [2017] NSWCA 186 at [19], Basten JA, with whom Meagher and Leeming JA agreed, reiterated that "[t]he term 'professional misconduct' does not have a specific meaning; it is merely a category of 'unsatisfactory professional conduct' which is sufficiently serious to justify suspension or cancellation." His Honour further recorded (at [20]) that "[t]here is no category of unsatisfactory professional conduct which is not capable, depending on the circumstances, of giving rise to professional misconduct and hence engaging the power of either suspension or cancellation of registration. The only requirement is that it be 'sufficiently serious' to justify such an order, a characterisation which must depend upon an evaluative judgement made by the Tribunal".
In Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 638, Gleeson CJ, Meagher and Handley JJA observed that "The gravity of professional misconduct is not to be measured by reference to the worst cases, but by the extent to which it departs from proper standards. If this is not done there is a risk that the conduct of the delinquents in a profession will indirectly establish the standards applied by the tribunal."
As the findings recorded with respect to the particulars of each Complaint confirm, the Respondent has been found to have substantially departed from "the proper standards" in three important respects. The nature, extent and duration of the Respondent's departure from proper standards, individually or cumulatively, in our view, establish professional misconduct as asserted by the Applicant.
For the reasons which we have earlier indicated, we are satisfied that s 149C of the National Law is enlivened. It then becomes necessary to consider what protective orders should be made in all the circumstances.

Consideration- Stage Two

The Respondent practised medicine for almost 40 years. He was not suggested to have previously been guilty of unsatisfactory professional conduct, or professional misconduct, or to be other than of good character, As a medical practitioner is expected to be of good character, that is of limited relevance for present purposes. In view of the objects and terms of the statutory provisions which govern the exercise of our discretion, the Respondent's good record as a medical practitioner is taken into account in his favour.
In the exercise of our discretion, we take into account the Respondent's multifaceted departures from the required standards, the duration of those failures, approximating 15 years, the age of Patient A, from the time the Respondent commenced to be her treating doctor until her death, her vulnerability, both in terms of age and health, and increasing dependence upon the Respondent socially and emotionally, and the substantial financial benefits which the Respondent and his family received from Patient A during the time that the Respondent was her doctor which are enduringly concerning. Significantly, the Respondent does not suggest that he was unaware of the nature and extent of any of his breaches of professional standards. It can safely be inferred that, but for the death of Patient A, the Respondent's breaches of professional standards would have continued.
Other than in the most superficial ways, as we have earlier recorded, the Respondent did not engage with the Applicant during its preliminary and subsequent enquiries, or with the Tribunal throughout the hearing of the Complaints. To the extent that the Respondent seeks to rely on the medical reports of Dr Rohde (Exhibit R1), we do not perceive anything emerging from those reports to provide potential comfort for the Respondent. Nothing recorded in Dr Rohde's report of 3 September 2020 suggests that, at that time, the Respondent was suffering from any condition which precluded him from engaging with the Complaints which, by that time, had been known to him for more than 12 months.
Dr Rohde's second report, of 20 July 2021, which was, due to Covid restrictions, not based on a personal consultation, but appears to have been largely based on what the Respondent told her, recorded a "high score for depression and anxiety" and Dr Rohde's opinion that the Respondent "has been suffering severe depression and anxiety for at least [the] past six months". Dr Rohde stated "in summary" that the Respondent "has developed severe anxiety and depression since 2019 which is not adequately assessed or treated and requires urgent management by a psychiatrist and psychologist".
Dr Rohde was of the opinion that the Respondent's depression and anxiety would "significantly impair" his ability to "physically sit through a hearing due to insomnia, fatigue, fibromyalgia and restlessness" and that his "anxiety and depression symptoms; hopelessness and helplessness, loss of concentration, memory impairment and reduced general cognitive processing will significantly impair his ability to respond appropriate to the demands of the NCAT hearing". The extent to which those conditions might be alleviated by the finalisation of these proceedings, and their impact on the Respondent's fitness to practise medicine were not addressed by Dr Rohde.
As is not in doubt, the Respondent, from at least July 2021, contemplated not appearing at the hearing of these proceedings. In those circumstances, and particularly as the Respondent prepared a statement upon which he intended to and did rely nine days later, the failure to engage, other than in a most superficial way, with the numerous and serious Complaints made against him, and the evidentiary foundation for them, which by that time had been known to the Respondent for more than 12 months, provide further support for making orders in the terms urged on behalf of the Applicant.
As we have recorded earlier, the Respondent's unverified statements are more significant in our view for what they do not say, than what they do say. The applicant referred us to the judgment of the Court of Appeal in NSW Bar Association v Meakes [2006] NSWCA 340, in which at [70] the Tribunal was found to have erred by "declining to criticise the respondent's decision not to give sworn evidence at the hearing". Unlike the present proceedings, we do not understand the respondent in that case to have tendered medical evidence explaining why he was not giving sworn evidence, thereby exposing himself to cross-examination. As in these proceedings, the respondent's failure to give evidence in that case meant "many questions left open which only the respondent could answer" (NSW Bar Association v Meakes at [71]).
In Health Care Complaints Commission v Akhurst [2016] NSWCATOD 70, the Tribunal at [46] accepted that it may draw an inference against a respondent who "files a statement and otherwise co-operates with the Commission, but is not prepared to be cross-examined as to the statement's contents". We do not understand there to have been medical evidence explaining why the respondent adopted that course in that case.
Clause 2 of Schedule 5D to the National Law provides that "the Tribunal is not bound to observe the rules of law governing the admission of evidence, but may inform itself of any matter in the way it thinks fit". Section 38(2) of the NCAT Act is in substantially similar terms, but is "subject to the rules of natural justice". We are satisfied that the course we have taken with respect to the material relied upon by the Respondent does not offend the rules of natural justice.
In the circumstances as we have recorded them, it is not necessary to criticise the Respondent for not giving verified evidence in these proceedings. It is sufficient for our purposes to rely upon the Respondent's choice, through his statements, to leave "open" the numerous questions which only he could answer. As our reasons confirm, the Respondent has not been advantaged by that approach. In the circumstances of these proceedings, the Respondent may have been unfairly disadvantaged if we had adopted the more robust approach permissibly adopted in other cases.
The Applicant urged the Tribunal to cancel the Respondent's registration. We do not understand such an order to be opposed by the Respondent. Equally we perceive that, although that is a factor to which we can permissibly have regard, it remains necessary for us to be objectively satisfied that cancellation of the Respondent's registration is appropriate in all the circumstances.
The Applicant also pressed the Tribunal for an order prohibiting the Respondent from reapplying for registration as a medical practitioner for a period of five years to seven years. We infer that such order was sought in accordance with s 149C(7) of the National Law. That understanding is supported by learned Counsel for the Applicant informing the Tribunal that no orders were sought with respect to the Respondent's practice of homeopathy.
We interpret the submissions of the Respondent's Counsel as urging the imposition of a period not exceeding two years during which the Respondent cannot apply for re-registration. It is not in doubt that the orders sought by the Applicant are within the Tribunal's power. As with the issue of cancellation of registration, although the apparent concession on behalf of the Respondent with respect to a period of prohibition is a matter to which we can have regard, we perceive that an objective assessment of whether imposing a period during which re-registration cannot be sought is appropriate, and if so, its duration are matters which we must assess objectively and determine.
In determining the appropriate protective orders, we are mindful of the "paramount consideration" pursuant to s 3A of the National Law which is "the protection of the health and safety of the public". Section 4 of the National Law requires the Tribunal "to exercise its functions having regard to the objectives and guiding principles" set out in s 3 of the National Law.
Relevantly for present purposes, s 3(3)(c) of the National Law provides that the "guiding principles" of the National Registration and Accreditation Scheme include "restrictions on the practice of a health profession are to be imposed under the scheme only if it is necessary to ensure health services are provided safely and are of an appropriate quality". As is not in doubt, the requirements of safe provision and appropriate quality of health services are conjoint.
We have earlier recorded the agreed outline of the "statutory framework" which governs the proceedings. We accept that the "task" undertaken by the Tribunal in making protective orders is centred "not on punishment as such but on the protection of the public and the maintenance of proper professional standards" (Lee v Health Care Complaints Commission [2012] NSWCA 80 per Barrett JA at [21]).
We also accept that, as Basten JA observed in Director General, Department of Ageing, Disability and Home Care v Lambert (2009) 74 NSWLR 523; [2009] NSWCA 102 at [83], to which Counsel for the parties referred us, the specific purpose for which orders are made is protective in the public interest, and not punitive with respect to the individual, although such orders may be punitive in effect, which effect may be relevant in formulating a protective order. Basten JA further observed that the "punitive effects" of orders may be directly relevant to the need for protection so that, in a particular case "there may be a factual finding that the harrowing experience of disciplinary proceedings, together with the real threat of loss of a livelihood may have opened the eyes of the individual concerned to the seriousness of his or her conduct, so as to diminish significantly the likelihood of its repetition" and not to produce "a level of insight into his or her own character or misconduct which did not previously exist".
In circumstances where the Respondent does not oppose cancellation of his registration, and has given no indication of any desire or intention to seek to resume medical practice, having now not practised for more than two years, and, having regard to Dr Rohde's more recent report, his significant current health issues, it is difficult to see that cancellation of his registration and an order prohibiting him from applying to be re-registered would have a "punitive" effect upon the Respondent, particularly having regard to his age and his own references to "retirement". Nothing to which we have been referred suggests that the orders sought by the Applicant would have a punitive effect, financially or otherwise, on the Respondent. We observe, in relation to the one respect in which the Respondent asserts that orders which identified him might have a "punitive effect", that Dr Rohde recorded in her second report that the Respondent "has recently moved with his wife from their home in Joadja to live closer to extended family and prevent his family from being socially ostracised by the closely knit rural community, social network and avoid embarrassment" and the doctor also recorded that the Respondent had "brought forward his retirement in June 2019 due to health concerns". We are comfortably satisfied that making orders in the terms sought by the Applicant would not have a punitive effect on the Respondent.
We do not find on the evidence before us that the "harrowing experience of disciplinary proceedings" has "opened the eyes" of the Respondent to the seriousness of his conduct so as to diminish significantly the likelihood of its repetition and to produce a level of insight into his or her own misconduct which did not previously exist. As we have earlier recorded, the unverified statements of the Respondent which have been received in evidence, and not been able to be tested by cross-examination, are, in our view, more significant for what they do not reveal than for what they do reveal. In the absence of evidence from the Respondent that he now has insight into his misconduct, and credible evidence of circumstances which significantly diminish the likelihood of its repetition, we cannot assume either of those matters.
The respects in which the statements of the Respondent are significant for what they do not reveal extend to expressions of contrition, or regret, in terms of the Respondent's breaches of his professional duties to Patient A, any suggestion of a lack of insight or awareness which has since been alleviated or reduced, an absence of engagement with the proceedings in the manner recorded earlier in our reasons, the quantum and duration of financial benefits which the Respondent allowed his family to receive from Patient A, and the reality that the Respondent has never suggested that, at any material time, he did not know that he was in breach of his professional duties, either with respect to "boundary issues", care and treatment issues or with respect to record keeping. Although it is perhaps academic given that the Respondent does not oppose cancellation of his registration, or suggest that he ever intends to or is likely to apply to be re-registered, his evidence fails to persuade us that, were he to be re-registered, the Respondent's conduct would be materially different, at least in relation to his care and treatment and record keeping obligations.
As the NSW Court of Appeal observed in Health Care Complaints Commission v Do [2014] NSWCA 307 at [35], in the passage to which Counsel referred us in their agreed statement of the statutory framework, "protecting the public from the similar misconduct or incompetence of other practitioners and upholding public confidence in the standards of the profession" are relevant considerations in the context of determining the appropriate protective orders. In the Respondent's circumstances, general rather than specific deterrence is the more relevant consideration.
As is not in doubt, the Respondent continued to act as Patient A's doctor when he knew that he should not, both by virtue of the close relationship which developed between Patient A and the Respondent's family and the very substantial financial benefits which he allowed her to bestow on himself and members of his family. In our view, the focus of "exploitation" for present purposes is whether, evaluated objectively, Patient A was "exploited", or taken advantage of, rather than whether the Respondent intended to exploit or take advantage of her. We have not been referred to any authority to the contrary. If, however, an intention to "exploit" is necessary, the admissions and silence of the Respondent which we have earlier recorded support drawing an inference that he intentionally exploited Patient A.
If we are wrong in finding that the Respondent "exploited" Patient A, he clearly unquestioningly acquiesced in, and at least indirectly benefitted from, the improper receipt of substantial funds from her on numerous occasions over a lengthy period. The evidence does not suggest any other reason why, apart from his having been her doctor, Patient A would have so materially benefited the family of the Respondent. The receipt of the substantial financial benefits by the Respondent and/or his family which are not disputed was unconscionable in view of Patient A's age during the years in which she was the Respondent's patient, her dependence upon him, and the position of advantage and influence over her occupied by the Respondent during that time (Kakavas v Crown Melbourne Limited (2013) 250 CLR 392; [2013] HCA 25 at [17]-[18], Thorne v Kennedy (2017) 263 CLR 85; [2017] HCA 49 at [38]).
As we have earlier recorded, no part of our findings is reliant upon the fact that the Respondent and his wife benefited significantly under the Will of Patient A. The Will was admitted to Probate. There is no evidence that the solicitor who prepared the Will was unfamiliar with, or failed to direct his mind, and that of Patient A, to the matters which were relevant to her knowledge and approval of the terms of her Will (Banks v Goodfellow [1870] LR 5 QB 549). Emails from the estate solicitor to the Respondent and his wife, and other estate documents, are before the Tribunal (HCCC 1, tab 10). No allegation of impropriety is suggested to emerge of those documents. There is no evidence before us that the Will of Patient A has been challenged on any basis.
We are comfortably satisfied that the nature and extent of the conduct of the Respondent which gives rise to the finding of professional misconduct requires "signalling" that such failures to maintain the standards of the profession will not be tolerated. Failing to do so would be inimical to public confidence in the standards of the medical profession.
The evidence which we have earlier identified and considered with respect to the standard of the Respondent's care and treatment of Patient A provides ample objective support for the imposition of protective orders of the kind and duration sought by the Applicant. The reality that, from the time she first consulted the Respondent, Patient A had health issues and was 70 years of age did not, in our view, entitle the Respondent to afford her anything other than a standard of care which could reasonably be expected of a medical practitioner in his position.
The standard of professional care provided to Patient A by the Respondent has been shown to have been deficient in two major respects. The respondent's casual attitude to his acknowledged shortcomings in these respects provides little basis for confidence that he has learned from his mistakes. We are unable to assume that the Respondent has reformed without "clear proof", and more than the mere passage of time without misconduct (Lee v Health Care Complaints Commission [2012] NSWCA 80, at [73]), reformation being the exception rather than the norm (Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 637).
We are not affirmatively satisfied that the Respondent has demonstrated integrity, trustworthiness, high moral and ethical values and a capacity to comply with relevant obligations and codes of practice such that it is appropriate for the practitioner to be held out to the public as a person worthy of their confidence (Crickitt v Medical Council of New South Wales (No 2) [2015] NSWCATOD 115 at [56]). The cumulative impact of the findings which we have recorded with respect to each of the three areas complained of by the Applicant leads us to that conclusion.
The Respondent's failure to keep adequate records, or records which complied with obligations by which he was bound, potentially compromised the health of Patient A. The Respondent's demonstrated casual attitude to his obligations in this regard, and refusal to engage with them in any but a superficial, almost dismissive manner in these proceedings, provides no basis for concluding that, put bluntly, things would be any different in that regard if the Respondent were to resume practice.
We have referred earlier to the decision in Spicer v New South Wales Medical Board & Ors (Court of Appeal (NSW) 19 February 1981, unrep), in which Hope JA, with whom Reynolds and Hutley JJA agreed, stressed the importance to the community of medical practitioners handling drugs of addiction not discharging "that very great responsibility in a way that is reckless and which shows a disregard to the law". The Respondent's conduct satisfies each of those criteria, and establishes that "it cannot be said that he is fitted at such a time to be a medical practitioner".
Counsel for the Respondent referred us to the decisions in Health Care Complaints Commission v Marino [2016] NSWCATOD 37 and Health Care Complaints Commission v Huber [2017] NSWCATOD 68, each of which decisions we have taken into account. Each decision is fact specific, and does not, in our view, reveal any matter of principle or discretion which could assist the Respondent in these proceedings.
We are mindful of the need to avoid making orders which result in more serious consequences for the practitioner than is reasonably necessary in the execution of the protective purpose of the National Law (Health Care Complaints Commission v Schmaman [2019] NSWCATOD 82 at [88], NSW Bar Association v Meakes [2006] NSWCA 340 at [114]).
For the reasons we have recorded, we are comfortably satisfied that cancellation of the Respondent's registration and an order preventing the Respondent from applying for re-registration for a period of years are justified in the interests of the public. The more difficult issue is the duration of the period during which the Respondent is prevented from applying for re-registration as a medical practitioner.
Being prevented from applying for re-registration for a period of seven years, by which time the Respondent would be 78 years old, is likely to render any opportunity to reapply nugatory. Although we are comfortably satisfied that cancellation of his registration is appropriate, we have not found that the Respondent's conduct should preclude him from ever applying for re-registration. We are mindful of the reality that it is the opportunity to apply for re-registration which is under consideration. Whether any such application would succeed would depend on the Respondent's fitness to practise at that time.
The Respondent's previously clear record over a period of almost four decades suggests that he has made a contribution to the welfare of his patients, and his community, and could possibly do so again, provided that there is no risk of future unsatisfactory professional conduct of the kind established in these proceedings.
Accepting that minds would reasonably differ on the facts as we have found them, we consider that, on balance, and having regard to the objectives of the legislative provisions which govern the proceedings, preventing the Respondent from applying for re-registration for a period of five years would be appropriate in all the circumstances.
Imposing a period of five years would, in our view, adequately "signal" that medical practitioners cannot permissibly fall as short of satisfactory professional standards in the manner and to the extent which the Respondent has been found to have. In view of our findings, the Respondent would need to demonstrate insight into boundary issues which the evidence before us establishes to be substantially deficient, and a commitment and capacity to apply himself consistently, and diligently, to the regulatory requirements with respect to patient care, and particularly those relating to patient record keeping, care, and prescription record keeping, if he is to have any real prospect of being re-registered to practise medicine.
We have taken into consideration that, at 76 years of age, the Respondent's prospects of securing re-registration may be slim. We have also taken into account that the Respondent has not provided any evidence suggesting that, in the more than two years since he last practised medicine, the Respondent has taken any steps, or made any efforts, to address the matters which gave rise to the complaints which he admitted, or did not deny in these proceedings. Had the Respondent done so, a shorter limitation on his inability to reapply for registration may have been appropriate.

Costs

It was conceded, correctly in our view, that costs would follow the event, and that the Respondent should pay the Applicant's costs of and incidental to the proceedings.

Orders 1. That, pursuant to s 149C(1)(b) of the Health Practitioner Regulation National Law (NSW) ("the National Law"), the registration of the Respondent as a medical practitioner is cancelled; 2. That, pursuant to s 149C(7) of the National Law, the Respondent may not make an application for review of order 1 until the expiration of a period of five years from the date of these orders; 3. That the Respondent pay the Applicant's costs of and incidental to these proceedings as agreed or assessed on a party and party basis.

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: 20 December 2021

Health Practitioner Regulation (New South Wales) Regulation 2010(NSW)

Health Practitioner Regulation (New South Wales) Regulation 2016(NSW)

Medical Practice Act 1992(NSW)

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