Health Care Complaints Commission v Dr DWF

Health Care Complaints Commission v Dr DWF - [2019] NSWCATOD 78 - NSWCATOD 2019 case summary — Zoe

[7]

Person A

The charges Dr DWF faced arose out of his conduct towards Person A were brought under s61L and s 38(a) of the Crimes Act 1900 (NSW). Person A had previously been supervised by him for three months in another Sydney Hospital. In 2013, she was a registrar on secondment at another hospital. Dr DWF was her mentor and referee. She referred to him as "Prof".
It was an agreed fact in earlier proceedings that, prior to the offences, they had developed a strong working relationship and a good friendship over the period 2012 - 2013. During that period they communicated by email on a number of professional subjects and saw each other in work and professional spheres.
In August, 2013 Person A had asked to see Dr DWF for assistance with her studies and professional skills and had seen him for two tutoring sessions. In September, 2013 she advised him she had failed her exams. She was due to sit another exam in the area in which she had failed. She also asked him to be one of four referees for a stage in her professional advancement. He agreed to that and said he was looking forward to her returning to the hospital at which he held a senior position. They also discussed the possibility of her transiting from a registrar to being a Fellow at that hospital.
In October 2013 Dr DWF sent her an email telling her that he had been involved in developing a mentoring programme for trainees at that hospital. He asked her if she would be interested in being part of that programme. She responded to that in early November saying that she was interested.
Dr DWF rang her on her mobile phone on 1 November, 2013. He had not done that before.
During their email correspondence in October/November 2013, Dr DWF told her that he would like to talk about her transitioning from a registrar to a fellow at the hospital's centre in his specialty of which he was the Director.
Three days later Dr DWF invited her to his home, a unit in an inner city suburb, to discuss a mentoring programme for Registrars, a potential fellowship for her and her forthcoming exams. Four days later (11 November 2013) she responded by email and said she would be happy to meet and have dinner. He said that he had also invited his daughter to be present at the dinner. However, he said that she had a gastro attack that day and that his daughter had pulled out of the dinner arrangements.
Dr DWF also said that he had been drinking extensively before Person A arrived.
Person A arrived after he had prepared the meal. Dr DWF told her his wife was away overseas. While both had been further involved in the cooking process for the dinner, they each drank champagne and talked about the proposed mentoring programme, Dr DWF put a tablet of Ativan (a benzodiazepine sedative drug) in her glass of wine without her knowledge. She said that made her feel muddled and sleepy.
They left the unit and then went for a walk for about an hour. On their return she again complained of being muddled and sleepy.
While she as in that state, Dr DWF said to her "lie down, I'll teach you a relaxation technique". He also took her boots off and rotated her around so she was lying on a couch and said "I'll give you a head massage." He started to remove her shirt up her back. She said she "…couldn't seem to protest" and didn't at that stage. He later then massaged her and she awoke on a bed in another room to find Dr DWF kissing or mouthing her nipple. She said "No, stop". She tried to turn her face away. When he tried to kiss her nipple again, she pushed him away, stood up and left the room and then the unit.
The following morning Person A consulted a GP who arranged for urine drug testing. It tested positive for benzodiazepine. She reported the matter to a suburban police station on 29 November 2013.
Person A then rang Dr DWF in January 2014. Her telephone conversations with Dr DWF on 5 and 6 January were the subject of a recording pursuant to an authorised listening device. During those conversations Dr DWF said he was stunned by the allegations she made and had limited recall of what had happened. He apologised for whatever had happened and expressed shock and disbelief at the allegations. He said he had experienced alcohol blackouts and would undertake treatment for his problem. He offered Person A any third party assistance he could including counselling and mediation.
Police executed a search warrant on 31 January 2014 on Dr DWF's home. They found benzodiazepine in his home

[9]

Person B: Facts

The events involving Person B were that she had first met Dr DWF in 2012. The context of that meeting was that her father had been diagnosed with prostate cancer and she had accompanied him to his first session at the Clinic at a Sydney hospital where she met Dr DWF. Over the next few weeks Person B's father continued to attend for treatment there during which time his emotional and financial position deteriorated.
Over that period, Dr DWF became aware that Person B had become separated from her husband and her father was financially dependent on her. At the relevant time Person B was aged 49.
Dr DWF was also aware that Person B was very stressed and under a lot of pressure. She said that she thought of Dr DWF as her and her father's saviour.
Over the course of a number of meetings, Dr DWF told her that he wanted to write a history of her father. He raised this in emails to her. In December, he again emailed her specifically to arrange a meeting without her father to discuss the proposed journal article. They arranged to meet for lunch which Dr DWF said he would pay for. He said that they would go out for lunch and meet prior to that at the clinic at the St George Hospital.
On 28 December 2012, she met Dr DWF at the hospital and then in his office. They had lunch there and during that he provided champagne to her while they were in his office. She had two glasses of champagne and some canapes/sandwiches. She felt as though the champagne had gone straight to her head.
After having the champagne, Dr DWF took her into his consultation room where they continued their discussions about her father and the proposed article. She said she was tense. Dr DWF told her he would teach her relaxation techniques. She felt uneasy and then felt her limbs being heavy.
Dr DWF told her to get up on the examination bed and then ran his hands over her chest and breasts. She was hesitant and uncomfortable but he was insistent.
He started to undo the buttons on her dress and front and exposed her chest and bra. She felt a heavy sensation and as though everything was happening in slow motion.
Dr DWF then suggested that he give her a breast examination stating, apparently by way of either encouragement or to diminish her reservations, that he was the head of a clinic which had specialist expertise in treatment of medical breast issues.
During that, Dr DWF squeezed her breasts and gently squeezed her nipples. She tried to stop him. He then placed his mouth over her nipple and sucked on her breast and kissed her.
There was a knock on the door. Dr DWF went to the door. When he was absent, Person B got dressed although her legs still felt heavy. She tried to leave but on his return, Dr DWF came up behind her and put his arm around her waist.
She got out of the office and left the hospital. Thereafter she felt upset and was unable to talk about what had happened.
She complained to the police on 15 October 2015 following a discussion with her sister. Her sister had become aware of the publicity given to the investigation against Dr DWF in relation to Person A.
Person B suffered a nervous breakdown. The effects of that were profound as set out in her statement.

[20]

Dr David Greenberg

Dr David Greenberg, forensic psychiatrist, provided a report dated 15 April 2016.
Having reviewed the material, Dr Greenberg gave his opinion (p17) that: Despite Dr DWF's claim that he had no erotic feelings for the victim, I am of the opinion that the most likely scenario to explain Dr DWF's offending behaviour is that he had some sort of sexual interest in his young female registrar. I am of the view that in his mind, he set up 'a romantic date' with this young woman. In my view, he attempted to seduce (Person A) by offering her various work-related favours', as well as impressing her with wine and food and his (impressive) apartment. He likely, in my view, attempted to relax the young woman with offers of alcohol, relaxation massage and spiking her food/drink with a sedative medication in order to secure his goal of sexual gratification. It is also impossible that his intention was to induce an incapacitated (semi-comatosed or deep sleep state) in Person A, with the subsequent loss or partial loss of memory (due to the benzodiazepine substance) of the event by the young woman."
In that context, Dr Greenberg made reference to a similar intimate liaison at the time of Dr DWF's first marriage when he had developed a relationship at the time of having intimacy and sexual issues with his first wife. He then had a consensual relationship with a female doctor in the hospital.
The same pattern appeared in his second marriage with similar sexual issues and the combination of events, in Dr Greenberg's opinion, may have led him to pursue a new romantic liaison with Person A.
Dr Greenberg concurred with Dr D'Angelo's opinion that Dr DWF's behaviour towards Person A was completely out of character. But he also thought (report p29) that Dr DWF's elaborate actions preceding and at the time of the offending behaviour indicated voluntary conscious awareness of his actions which were not disorganised, random, haphazard or unsystematic or trance-like.
Dr Greenberg differed from Dr D'Angelo in making any connection between traumatic childhood experiences and the events concerning Person A. Dr Greenberg thought (report p 30) that Dr DWF's premeditation and planning did not support a view that he lacked awareness or consciousness. Rather, what occurred was that he was in a position of power and authority relative to Person A. The facts do not support a lack of capacity to know and understand the nature of his actions or that they were wrong. He had made considered judgments about offering Person A a specially created, more senior, position in his department, as well as his discussions about the mentorship program and his offer of training to Person A.
In Dr Greenberg's opinion, Dr DWF must have been aware of the inappropriateness of his invitation to Person A. All that occurred several days before the offending behaviour while he was at work and (likely) not intoxicated or under the influence of any sedative or dissociative state.
Dr Greenberg's concluding view (p 31) was that "…the most likely scenario was that Dr DWF had some sort of sexual erotic interest in Person A who was a subordinate. His offending acts were intentional, rational, voluntary and conscious".
He agreed with Dr Westmore that: "…most likely, Dr DWF had an alcohol use disorder and some form of depressive disorder at the time preceding and at the time of the offending".

[30]

Non-publication: Dr DWF's name

The Tribunal considers that exceptional circumstances do exist sufficient to depart from the principles of open justice normally applicable in these cases - see HCCC v Vo [2014] NSWCATOD 127 at [181-185]; Health Care Complaints Commission v XC [2015] NSWCATOD 9, those being that: 1. There has already been substantial and adverse publicity to Dr DWF surrounding the initial investigation and the criminal trial and sentence in the District Court and the Local Court proceedings including the sentence; 2. His identification and personal details and connection with all these matters was publicly available and were also available to his professional colleagues in his specialty, his specialist college, his hospital and other professional environment; 3. The psychiatric evidence of Dr D'Angelo and to a limited degree that of Dr Westmore sets out the impact on Dr DWF and on his wife of the investigation, his trial, the sentence, the appeal and his imprisonment including the professional and social consequences and disgrace which he has evidently and keenly felt; 4. and that these circumstances warrant a non-publication order in relation to Dr DWF's name which should be anonymised.
The Tribunal also considers that the public interest is protected in these proceedings given the references in the public register to him will also show that his registration has been cancelled. Further, given the intention of Dr DWF not to practice again and the duration of the orders proposed (five years), there is limited likelihood of the needs of future patients being a relevant consideration. The public interest of those already involved needing to be able to ascertain what has happened is met by these orders, but not the decision being available on the public register which can be searched.
Clearly, AHPRA records are available setting out the fact of cancellation for any person or, for example, any referring practitioner who wishes to inquire into Dr DWF's status or any person wishing to know what has happened in these proceedings. That register also indicates that the HCCC has acted appropriately; further, that it has fulfilled its statutory function to take firm action to protect the public from practitioners whose actions are criminal and where there are or may be issues of public safety.
Further, the distribution of these reasons by the HCCC to the Medical Council of NSW and by it to the relevant College to which Dr DWF belonged will ensure that the profession itself can take measures to bring any relevant matters to the attention of its members if necessary.

[31]

Reasons for cancellation

Even though the parties have consented to an order for cancellation of Dr DWF's registration and Dr DWF has confirmed during the hearing that he does not intend to re-apply, those circumstances may change. Accordingly, the Tribunal considers that it should set out the factors which warrant such an order at this stage and on the evidence before the Tribunal as at the date of this hearing.
Against the background of the evidence, the Tribunal considers that the events which gave rise to Dr DWF's convictions involved: 1. The abuse of a professional colleague with whom he was in a relationship of trust and with a considerable power imbalance; 2. Person A's relationship with Dr DWF was one of particular vulnerability given that he was her supervisor and was about to supervise her again. She had recently failed an exam and was about to be tutored and mentored by him. What must have been at least a sub-text to what occurred was that her potential fellowship would depend, at least, on his approval; 3. There is at least a strong inference from Person B's description of her reactions to what had occurred after she had had the drinks as offered to her by Dr DWF, that she also was subject to the influence of an intoxicating substance; 4. Certainly the offence concerning Person A involved administering an intoxicating drug to which Dr DWF had ready access as a specialist medical practitioner. 5. The abuse of Person B was towards a person who had approached him about her father who was seriously ill; she was in the position of an ordinary member of the public seeking help for a close relative, namely, her father; 6. Dr DWF had utilised his professional standing in that he said he was wanting to write a paper about Person B's father for a medical journal; 7. The events concerning both Person A and Person B occurred in the context of either Dr DWF's office or a medical consulting room or in his home. He had the control over those premises on each occasion. Neither victim had any real familiarity with the premises. They were entitled to be safe and not to be assaulted as they each were in those premises; 8. Each victim separately had trusted him to behave not just honourably but also honestly and without manipulating them in the situation he had arranged, if not manufactured, with each of them; 9. Both events constituted repeated efforts by him to have sexual contact with each of Person A and B in the respective situations which arose because he was utilising his professional standing; 10. The two events which need to be considered both individually and cumulatively and in the context of the eleven month time period. In the circumstances the events cannot be considered as isolated nor a 'one-off' or a response to a misunderstanding. Rather, they both individually and cumulatively need to be considered as part of a pattern, a pattern involving the use of alcohol and the manipulation of a scenario which Dr DWF created and the ensuing abuse of each victim. Any apparent explanation of the first incident involving Person A does not appear to be relevant to the second incident 11 months earlier involving Person B;

[39]

Costs

Counsel for the HCCC submits that it was necessary for the HCCC to bring the application for cancellation. It is accepted that Dr DWF and his legal team acted appropriately in dealing with the matter to confine and limit issues before the Tribunal, including by notifying Dr DWF's intention not to oppose the cancellation order on 9 May 2019.
Counsel for Dr DWF accepts that an order should be made for the payment of the HCCC's costs of, and incidental to, the first date of hearing.
Here the matter was conducted by the HCCC and Dr DWF's legal representatives efficiently and co-operatively. Dr DWF did not contest factual matters nor any of the opinions advanced in the psychiatric evidence. It was therefore not necessary to call any of the witnesses. On the material before the Tribunal, it appears that Dr DWF and his legal representatives acted appropriately in making concessions and, if not promptly, certainly reasonably, in the time available after the filing of the amended application.
Nevertheless, the Tribunal accepts that it was necessary for the HCCC to act in the way it did to ensure that the existing suspension of Dr DWF's registration was converted to one of cancellation.
Accordingly the Tribunal considers that the appropriate order is that Dr DWF pay the costs of, and incidental to, the hearing and makes that order accordingly.
The Tribunal would observe that despite that co-operative attitude between the parties, there does not seem to be a legislative provision other than for the HCCC to come back before the Tribunal to make registration cancellation orders by consent. That necessarily increases the costs to both the HCCC and the relevant practitioner as well as making demands on the Tribunal's resources to ensure that the reasons for the cancellation are determined and recorded. It may be that legislation is necessary to avoid this need in appropriate consent circumstances. Certainly this Tribunal anticipated that this would be a full hearing which is why it was set down for the time period allocated.
Nevertheless, on the basis of the legislation and authorities which currently exist in these circumstances, the HCCC is entitled to its costs. That order effectively follows the event of the orders for cancellation. Here the HCCC has insisted on the full days' costs which counsel for Dr DWF does not oppose.

At a glance

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Catchwords

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Judgment (41 paragraphs)

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Legislation Cited (2)

Cases Cited (11)

Cited By (4)