Health Care Complaints Commission v Dr McCroary

Health Care Complaints Commission v Dr McCroary - [2019] NSWCATOD 115 - NSWCATOD 2019 case summary — Zoe

Overview

Dr McCroary is a general practitioner. Patient A is a registered nurse employed at his practice. Dr McCroary has admitted that his conduct in entering into and continuing a sexual relationship with Patient A amounts to one kind of unsatisfactory professional conduct: Health Practitioner Regulation National Law (NSW) (National Law), s 139B(1)(a). As Dr McCroary has admitted that part of the complaint in writing, the Tribunal is not required to make findings about it: National Law, s 149(b). It follows that the particulars of Complaint 1 constitute unsatisfactory professional conduct as defined in s 139B(1)(a) of the National Law.
The Health Care Complaints Commission (HCCC) submits that Dr McCroary's conduct also comes within another definition of unsatisfactory professional conduct in the National Law: s 139B(1)(l). In addition, the conduct is said to amount to professional misconduct as defined in s 139E. Dr McCroary does not admit either of those parts of the complaints.
Dr McCroary says that the appropriate penalty is a reprimand. The HCCC says that as well as a reprimand, Dr McCroary's registration should be suspended for three months and should be subject to various conditions. The HCCC says that Dr McCroary should pay their legal costs. Dr McCroary says that he should only have to pay a proportion of HCCC's legal costs.
The broad issues are: 1. Does entering into and continuing a sexual relationship with Patient A amount to "improper or unethical conduct"? (In legal terms, "Is the subject matter of Complaint 1 proved in relation to unsatisfactory professional conduct as defined in s 139B(1)(l)"?) 2. Does entering into and continuing a sexual relationship with Patient A amount to professional misconduct? (In legal terms, "Is the subject matter of Complaint 3 proved?") 3. Apart from a reprimand, what protective orders should the Tribunal make, if any? 4. Should Dr McCroary be ordered to pay all HCCC's legal costs?
We have decided that entering into and continuing a sexual relationship with Patient A does amount to "improper or unethical conduct" but that it does not constitute professional misconduct. Apart from a reprimand, we have ordered Dr McCroary to be mentored for 12 months. In relation to costs, we have ordered Dr McCroary to pay the HCCC's costs.

[4]

Background

Dr McCroary commenced practice as a general practitioner in 1994. Since 1997 he has practised at the Macarthur General Practice in Campbelltown, NSW. Patient A started working at the practice in March 2012. She has complex and chronic health conditions. Dr McCroary started treating her as his patient more than a year later, in June 2013. Towards the end of 2013 they started spending time together outside work. By that time, they had developed what may be described as a personal relationship. In April 2004 they began a sexual relationship.
Dr McCroary consulted another doctor in the practice, Dr Guest, about the propriety of continuing to treat Patient A if their relationship became intimate. Dr McCroary says that Dr Guest told him there was no problem and was very supportive. He does not recall speaking with any other colleagues about this issue.
Dr McCroary also read the code of practice published by the Medical Council of Australia called, "Good Medical Practice; A Code of Conduct for Doctors in Australia", March 2014. He was satisfied that he was not in breach of that code. He is not sure whether he read another, more relevant guideline about sexual boundaries, 'Sexual Boundaries; guidelines for doctors", 28 October 2011. He discussed the situation with Patient A when she first became a patient and they decided that it was appropriate for him to treat her as long as they confined discussions in consultations to medical issues. They did not discuss the issue again after they commenced a sexual relationship.
Dr McCroary now admits that he failed to observe professional boundaries in entering into a sexual relationship and continuing with that relationship when he was Patient A's general practitioner. He now acknowledges that Dr Guest's advice was not correct, that he misread the code of conduct and that he should have had another conversation with Patient A when they commenced a sexual relationship. However, he does not believe Patient A was vulnerable, that there was any significant power imbalance in the relationship or that he lacked objectivity. He says he now understands the potential for loss of objectivity when treating anyone with whom he has a close personal relationship.
Dr McCroary and Patient A gave written and oral evidence. Dr Kertesz, a general practitioner, provided an independent expert report and expanded on that evidence at the hearing.

[7]

Compliant 1

Complaint 1 is that Dr McCroary is guilty of unsatisfactory professional conduct in that he has: 1. engaged in conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of medicine is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience; and/or 2. engaged in improper or unethical conduct relating to the practice or purported practice of medicine.
The two bases on which Dr McCroary is said to have been guilty of unsatisfactory professional conduct correspond with the definition of that term in s 139B(1)(a) and s 139B(1)(l) of the National Law respectively. Section 139B(1)(a) is: 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.
Section 139B(1)(l) defines unsatisfactory professional conduct to include, "[A]ny other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession."
The particulars of Complaint 1 are that: 1. Dr McCroary failed to observe professional boundaries in that he entered into a personal and sexual relationship with Patient A in or around April 2014. 2. Between April 2014 and September 2016 Dr McCroary inappropriately continued to provide medical treatment to Patient A whilst maintaining a personal and sexual relationship with her in that he: 1. consulted with patient A on approximately 100 occasions; 2. prescribed medications to Patient A as set out in Annexure A. (Emphasis added.)
Dr McCroary admits that he is guilty of unsatisfactory professional conduct under s 139B(1)(a) of the National Law in that his conduct demonstrates that his judgment is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. The HCCC does not contend, and Dr McCroary does not admit, that his medical knowledge, skill or care is lacking in any way.
Dr McCroary does not admit that his conduct amounts to "other improper or unethical conduct": National Law, s 139B(1)(l).

[14]

Breach of sexual boundaries guideline

The Medical Board of Australia has power to develop guidelines and codes: National Law, s 39. Dr McCroary's conduct is clearly in breach of the guideline on Sexual Boundaries, "Sexual Boundaries; guidelines for doctors", 28 October 2011. That document states at point 2 on page 1, that: Good medical practice relies on trust between doctors and patients and their families. It is always unethical and unprofessional for a doctor to breach this trust by entering into a sexual relationship with a patient, regardless of whether the patient has consented to the relationship. (Emphasis added.)
The same point is repeated at point 6 on page 3: "Doctors are responsible for establishing and maintaining boundaries with their patients. A doctor should not enter into a sexual relationship with a patient even with the patient's consent." Continuing such a relationship, or failing to terminate the doctor/patient relationship, is also clearly in breach of the guideline. Behaving in those ways is, by definition, "sexual misconduct". At point 3 on page 2, that term is defined to include "engaging in sexual activity with a current patient regardless of whether the patient consented to the activity of not".
There is no dispute that Dr McCroary's conduct is in breach of the sexual boundaries guideline and that it constitutes sexual misconduct. The guideline describes that conduct as "unethical".
Even so, Dr McCroary argued that his conduct was not improper or unethical because: 1. he repeatedly read the code of conduct and decided that he was not in breach of that code; 2. he did not recall reading the sexual boundaries guideline; 3. he discussed the situation with Dr Guest; 4. the patient/doctor relationship had commenced when Dr McCroary and Patient A were in an employer/ employee relationship and there was no prohibition on entering into or continuing that relationship; and 5. Patient A was not vulnerable and the power imbalance was not significant; 6. his situation is much less serious than other cases where improper or unethical conduct has been found.

[15]

Meaning of code of conduct

As well as the sexual boundaries guideline, the Medical Board of Australia has published a more general code of conduct for doctors called, "Good Medical Practice; A Code of Conduct for Doctors in Australia", March 2014. Dr McCroary said that he read the code of conduct repeatedly but did not think he was in breach.
The Code of Conduct contains the following information about personal relationships at 3.14. 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.
According to Dr McCroary, words such as, "wherever possible" and "in most cases" suggest that there is no direct prohibition on treating a person with whom the general practitioner has a close personal relationship. This part of the code of conduct relates to a person with whom a practitioner already has a close personal relationship, such as a close friend or family member. Patient A became a close personal friend of Dr McCroary towards the end of 2013.
At 8.2, under the heading "Professional boundaries", is the following relevant information: 8.2 Professional boundaries Professional boundaries are integral to a good doctor-patient relationship. They promote good care for patients and protect both parties. Good medical practice involves: Maintaining professional boundaries. Never using your professional position to establish or pursue a sexual, exploitative or other inappropriate relationship with anybody under your care. . . . Specific guidelines on sexual boundaries have been developed by the Medical Board of Australia under the National Law.12
Footnote 12 in the Code of conduct is a cross-reference to the sexual boundaries guideline and the online version provides a link to that publication.
This part of the code of conduct is more equivocal than the sexual boundaries guideline in relation to commencing a sexual relationship with a patient. The sexual boundaries guideline states that doctors should not commence such a relationship even if the patient consents, whereas the code of conduct suggests that such relationships will contravene the code only where the doctor uses his or her professional position to establish or pursue the relationship.
As Dr McCroary did not consider there to be any breach of trust or power imbalance, he thought he could be completely objective. He was mistaken about that. He now acknowledges that he misread the code of conduct.

[28]

Consideration

In this case, two categories of unsatisfactory professional conduct have been proved. The first is conduct that demonstrates that Dr McCroary's judgment is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience: National Law, s 139B(1)(a). The second is "other improper or unethical conduct": National Law, s 139B(1)(l).
The HCCC submitted that the Tribunal treats so called "boundary violations" of a sexual nature as a most serious category of ethical breach, almost invariably giving rise to a finding of professional misconduct. The HCCC gave several examples of cases about boundary violations involving patients where the Tribunal found the conduct to constitute professional misconduct.
Dr McCroary submitted that his conduct was not sufficiently serious to justify suspension for many of the same reasons that it was not unethical or improper including that he misread the guidelines; he sought advice from a colleague which confirmed his view; and that Patient A was not vulnerable. In addition, he characterised his relationship with Patient A as that of a co-ordinator, rather than her treating GP. In a letter to the Medical Council of Australia dated 24 June 2016, Dr McCroary said that he has "occasionally assisted by providing a script, e.g. for antibiotics but I do not consider myself her regular treating doctor." When questioned about this statement he said that what he meant was that her specialists were her main treating doctors.
In correspondence with the Health Care Complaints Commission on 13 September 2013, Dr McCroary said that he reduced his role in her medical care when the relationship deepened. In his statement to the Tribunal at [21], Dr McCroary states that he saw his role "more as establishing a system for managing and collating her various consultants and co-ordinating what was a complex collection of opinions, treatment plans and strategies for her various treatment plans."
In our view, by saying that he did not consider himself as Patient A's regular treating doctor, Dr McCroary was attempting to minimise the extent of his therapeutic relationship with Patient A. The records show that he wrote more than 150 prescriptions from April 2014 to September 2016.
In many cases involving boundary violations, the Tribunal has found the conduct to amount to professional misconduct. In Health Care Complaints Commission v Little [2016] NSWCATOD 146 a chiropractor and a patient had a month long relationship where they met socially, hugged and kissed one another and communicated on social media. The patient was vulnerable because of her health conditions. The Tribunal found that even though the relationship lasted less than a month and did not include sexual intercourse, the practitioner was guilty of professional misconduct.
In Health Care Complaints Commission v Firth (No 3) [2016] NSWCATOD 58, a psychologist had a personal relationship with two patients including a single act of sexual intercourse with one of them. The Tribunal concluded that the practitioner had used his practice in respect of that patient, to sexualise the relationship. When discussing so-called boundary issues at [17], the Tribunal expressed the view that ". . . one of the most extreme violations of such boundaries is to engage in an inappropriate sexual relationship between the practitioner and his patient . ."
In Health Care Complaints Commission v Ryken [2016] NSWCATOD 58 a chiropractor formed personal relationships with two patients (one of whom had been a long-time friend) involving intimate and/or sexual communications on social media. He also had intimate physical contact with these patients, but not sexual intercourse. The chiropractor also had a sexual relationship with a third patient. The Tribunal did not have to determine whether this conduct amounted to professional misconduct because the practitioner admitted that he was guilty of professional misconduct.
Another reason the HCCC regarded Dr McCroary's conduct as sufficiently serious to justify suspension was that he ignored the warning signs mentioned in the sexual boundaries guideline. Those warning signs include "inviting each other out socially". Dr McCroary and Patient A discussed 'boundary issues' when she first became his patient at the end of 2013. They agreed that they would discuss health issues during consultations and personal issues outside work. There were no further discussions when they started dating or when they entered into a sexual relationship. Dr McCroary said that when the relationship developed, he thought that the previous understanding would continue.
Dr McCroary was aware that it might be inappropriate to continue the doctor/patient relationship when the personal relationship became more serious. He did not 'ignore' the warning signs. Rather, he reflected on the issue and decided that it was not inappropriate to continue to treat Patient A when their relationship became intimate.
While Dr McCroary's judgment was sub-standard and his behaviour unethical, his conduct is not of a sufficiently serious nature to justify suspension. That is the case because of the nature of the relationship and how it developed. Patient A was not a particularly vulnerable patient even though she had complex and chronic physical health conditions. Dr McCroary had known her as an employee and a close personal friend for several years before they commenced a sexual relationship. Their feelings were mutual and the relationship has continued. Dr McCroary did not exploit or take advantage of his position of power as Patient A's treating doctor. They discussed the issues when the personal relationship commenced and decided to keep medical and personal issues separate. Despite Dr Kertesz's view, these circumstances lead us to conclude that Dr McCroary is not guilty of professional misconduct.

[35]

Conclusion

We are satisfied that Dr McCroary now understands that his behaviour breached professional boundaries and has developed insight into his conduct. There is, in our view, very little risk that he will make the same mistake again. He is seeing his own psychologist to deal with stress and anxiety. There is no evidence of clinical depression or any other mental health issue that needs to be addressed by a psychiatrist, psychologist or counsellor.
There is no doubt that Dr McCroary now understands what the guidelines on sexual boundaries mean. In circumstances where he is not at risk of repeating the behaviour, there is no point in him attending a course on that subject.
However, we do consider that Dr McCroary may benefit from having a professional mentor for the next 12 months. Such a relationship would give him a further opportunity to reflect on and discuss his behaviour and obtain support. The mentoring condition suggested by the HCCC is as follows: (a) to nominate a registered experienced general practitioner to act as his professional mentor for approval by the Medical Council of NSW in accordance with the Medical Council of NSW's Compliance Policy - mentoring (as varied from time to time) and as subsequently determined by the appropriate review body; (b) to meet face-to-face monthly for at least one hour; (c) At the initial meeting the discussion is to focus on: the issues highlighted in this decision and professional boundaries and at subsequent meetings discussion is to include as necessary the issues highlighted in this decision and professional boundaries and any personal and/or medical practice issues that may arise; (d) To authorise the Council to provide a copy of the decision to his mentor; (e) To authorise the mentor to report to the Council on a quarterly basis; (f) To authorise the mentor to inform the Council immediately if the mentoring relationship ends, or of any significant concerns regarding the practitioner, or his compliance with any conditions on his registration; (g) To be responsible for any costs associated with the mentoring relationship.
To clarify that condition (e) does not require the mentor to report on the subject matter or content of the discussions, we propose to substitute that condition with the following condition: (e) to authorise the mentor to advise Council on a quarterly basis as to whether the required meetings have occurred.
That condition is consistent with the Compliance Policy: Mentor publication on the Medical Council's website.

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