Health Care Complaints Commission v Fleisch

Relationship: Dr Fleisch and Patient A

1. Dr Fleisch first consulted with Patient A on 21 January 2016 at the request of the patient's then GP, Dr Samuel Friedman, for a "review for bipolar affective disorder".
2. Dr Fleisch saw Patient A, then aged 69, on about 19 occasions. His last consultation with the patient was on 27 August 2016.
3. Patient A initially presented to Dr Fleisch with amongst other things, symptoms of low mood, low energy, lethargy and low motivation. He also gave Dr Fleisch a history of bipolar disorder, depression and anxiety. He described several stressors on him including being the victim of an attack from behind while swimming in February 2014. Patient A had also been involved in two motor vehicle accidents and had experienced stresses from the related litigation.
4. At that time, Dr Fleisch described Patient A as displaying behaviour consistent with prominent paranoid persecutory themes and preoccupations. He diagnosed Patient A with Schizoaffective Disorder with associated psychotic symptoms and episodes of depression and mania.
5. After some consultations Dr Fleisch became aware of the extent of Patient A's psychosis. He gave Patient A a number of prescriptions for medications, some of which Patient A refused to take or ceased taking.
6. There were a number of areas of factual dispute between the accounts of Dr Fleisch and Patient A as to their ongoing contact and relationship. Those disputes, which primarily relate to their contact at the casino, what occurred then and aspects of their doctor/patient relationship, are detailed below.

Specific allegations

1. The general nature of the complaints brought against Dr Fleisch are in relation to boundary crossing. Some of the particulars of that, and the background to that general allegation are that he: 1. knowing that Patient A was a regular gambler, on several occasions spoke with Patient A when he saw him at the Star City Casino; 2. during those occasions, encouraged him to gamble and attend the Casino; 3. asked to borrow money from Patient A; 4. accepted hospitality from Patient A; 5. stayed at the Casino in a room booked by Patient A; 6. Discussed his gambling habits and attendances at the Casino with Patient A; 7. offered Patient A alcohol during consultations with him; 8. discussed his own medication with Patient A.
2. Evidence was also available to the Tribunal from Dr Fleisch and the relevant records produced as to Patient A's psychiatric condition at the time he saw Dr Fleisch. He also gave evidence either refuting or denying or in some respects, admitting some of those particulars.
3. The documentary evidence was also relied on to allege failure by Dr Fleisch to create a management plan for Patient A, as well as failure to document any reference to Patient A's gambling, keeping inadequate patient records including the medication prescribed and the reasons for prescribing that medication.

Complaints

1. Against this background, the HCCC has brought the four Complaints referred to above.
2. The substance of Complaints One and Two are that Dr Fleisch engaged in unsatisfactory professional conduct under s 139B (1)(a) and (l).
3. Specifically, the HCCC asserts under Complaint One that Dr Fleisch: 1. Engaged in conduct demonstrating knowledge, skill or judgment possessed or care exercised which was significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience; and/or 2. Engaged in improper and unethical conduct relating to the practice of psychiatry.
4. The Second Complaint is that Dr Fleisch is guilty of unsatisfactory conduct under s 139 (1)(b) by contravening Health Practitioner (NSW) Regulation 2010, in keeping unsatisfactory medical records for Patient A.
5. Under Complaint Three the HCCC relies on the cumulative effect of the particulars relied on under Complaints One and Two to warrant a finding under s139E of the National Law that Dr Fleisch has engaged in professional misconduct in that he has engaged in: 1. Unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of his registration; or 2. more than one instance of unprofessional conduct which, when considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of his registration
6. It is also alleged under Complaint Four that Dr Fleish suffers from an impairment, disability condition or disorder within the meaning of s 5 of the National Law such as to detrimentally affect (or being likely to detrimentally affect) his capacity to practise the profession of psychiatry or from practising other than in accordance with the conditions proposed by the HCCC.
7. The particulars of that complaint are that: 1. Dr Fleisch has a depressive and anxiety condition, albeit controlled by medication; and 2. has personality/vulnerability issues and/or borderline personality traits.
8. Various specific acts are relied on in relation to the other specific counts. Some have been admitted and some denied as is outlined in the Agreed facts and Issues (exhibit 13). Specifically, some of the conduct is admitted by Dr Fleisch to amount to unsatisfactory professional conduct.
9. In broad terms, the first three Complaints arise out of Dr Fleisch's conduct towards Patient A. The HCCC submits that they should be considered both individually and cumulatively. The particulars also inform the Complaint about matters of Dr Fleisch's personal and practice management. Complaint Four is a complaint about his circumstances which are alleged to amount to impairment.

Issues

1. Dr Fleisch admitted at the outset of the hearing some of the particulars of Complaint One and all of Complaint Two and that his conduct (where admitted) amounts to unsatisfactory professional conduct. At issue therefore, are some of the particulars of Complaint One and Complaint Three. What remains for the Tribunal to determine are the following particulars of Complaints One and Three and whether: 1. The conduct occurred as alleged by Patient A; 2. If so, whether that conduct amounts to professional misconduct or unsatisfactory professional conduct; 3. Whether Dr Fleisch has an impairment as defined; and 4. What protective orders need to be put in place given the Tribunal's findings.

S150 hearing

1. A section 150 hearing was conducted on 25 November, 2016, determining that conditions should be imposed on Dr Fleisch's registration limiting the numbers of patients he could see and the number of days he could work. The conditions also prohibited Dr Fleisch from seeing new patients, required him to engage in Category C supervision and imposed a range of health conditions.

Conditions

1. Conditions were imposed on 29 November 2016. The evidence before the Tribunal is that Dr Fleisch has complied with those conditions to the date of hearing.
2. At the conclusion of the hearing, the HCCC proposed varied conditions.

Dr Fleisch: Impact of the conditions

1. Dr Fleisch submits that the condition preventing him consulting with new patients imposes a financial burden on him in attempting to maintain a practice with all its expenses in circumstances where a large part of his practice covers bulk-billed patients.

Continuation of conditions

1. Dr Burns considered (report 30 November 2018) that Dr Fleisch's capacity to practice his profession was not currently affected by the conditions. In his oral evidence he thought that those conditions should continue. Further, he thought they provided a safe structure in which Dr Fleisch could operate. Dr Samuels agreed with this opinion. Dr Gwynne agreed, but with the reservation that conditions requiring compulsory compliance could be counter-productive in terms of inducing a commitment to change. Further aspects of the evidence of all three medical practitioners are set out below.
2. The treating practitioners and the Council Appointed psychiatrist saw the conditions as evolving and being adjusted over a time period in accordance with the observations and opinions of the Council appointed psychiatrist.

Issues of fact

1. Various issues of fact arising out of the relationship between Dr Fleisch and Patient A and their attendance at the Star City Casino were set out in a letter from Dr Fleisch's previous solicitors dated 3 February 2017. At the Case Management Conference in this matter conducted on 14 December 2018 it was agreed that Patient A would be called to give evidence. That was to enable consideration of Dr Fleisch's case that Patient A's accounts should not be accepted on areas of conflict given his history of mental imbalance, tendency towards exaggeration, antagonistic attitude towards Dr Fleisch and his erroneous recall of events.

Evidence: Dr Fleisch

1. The evidence from Dr Fleisch was contained in his statements and in his oral evidence. The following aspects set out what the Tribunal considers to be the salient aspects of that evidence including that given in cross-examination.

Father's death and impact

1. Dr Fleisch's father's health deteriorated in early 2016 and he passed away on 20 May 2016. His relationship with his father was complicated and highly toxic. He did not take any time off directly after his father's death. He now believes that this had been a mistake and that he should have taken some time off work. However, he had felt an obligation to be there for his patients.

Interest in gambling

1. Dr Fleisch said that he started gambling about 2010 when his father developed lymphoma. Dr Fleisch said that he had a long interest in, and had studied, gambling in a number of respects, particularly blackjack, which he thought was a game which involved "a little bit of skill". He had also studied the operation of casino games and machines. That included his study of what casinos had done to randomize games and give gamblers 'little chance to win'.
2. Gambling had become "quite a focus in his life for quite a few years". At one stage in about 2015 he had been a member of the Star Casino's VIP Club. He now regards the Casino as an "evil place".

Gambling habits

1. Dr Fleisch's gambling increased during at least 2015 and 2016 as a way to have a break from life and the pressures on him. He was embarrassed about it and felt that, as a psychiatrist, he should have known better. He admitted that he did not use the support structures available to him or to manage those events well.
2. What is clear was that his gambling constituted a very serious addiction. He was losing up to $4,000 - $5,000 per week which appears to have come from his savings. He could spend up to four or six hours at the casino on week nights. Dr Fleisch said it was possible that he told Dr Burns in June 2016 that he had a system which could return him $10,000 per day (Tab 43 p 23). That and other evidence makes clear that he was well down the path of the self- delusional behaviour which can grip the addicted gambler. He clearly lacked the insight to either recognise or deal with that addiction.
3. At that time, he had disengaged with his psychotherapist, Dr Gwynne and saw his psychiatrist, Dr Burns less frequently. What is more significant is that he did not take any real notice of Dr Burns recommendations, particularly in terms of his own treatment of his manifest gambling addiction.
4. He was admitted to St Vincent's Hospital in May 2015 for excessive consumption of alcohol and the consumption of diazepam. He had obtained that by using his (then) wife's medication.

Recent gambling

1. In November 2016 he had been advised by Dr Burns to ban himself from the Casino and about liaising with a gambling clinic to avoid any possibility of reverting back to this past habit. However, he did not do anything about it until just before the hearing when he enrolled in the St Vincent's Hospital gambling addiction program. He had previously felt that gambling was not an issue for him anymore. He had stopped using gambling as a way to avoid or deal with life.
2. There is also evidence that he attended another gambling venue, the Canterbury Club, in early 2018 where he used a machine to play Black Jack.

Current supervision

1. Dr Fleisch is currently under Category C supervision with Dr Elsa Bernardi. He attends supervision fortnightly. He regards Dr Bernardi as being an excellent supervisor who gives him unremitting support. She has invested time in helping him sort out his practice and has helped him to learn from this experience. Dr Bernardi has visited his Bondi practice on one occasion to review the set-up and some medical records. They also discuss some of his very complex patients and pharmacotherapy choices.
2. He currently also attends two peer groups on a monthly basis. Dr Bernardi, is a member of one of these groups.

Practice and workload

1. Dr Fleisch's practice is primarily an adult practice with a range of ages of patients.
2. Dr Fleisch said that he thought some of his problems in 2016 came from overwork and not recognising the strains that that had caused to him. He said that he had informed the s 150 inquiry in 2016 that his workload was not sustainable but that he could not close his books to new clients. He felt that pressure as he knew these patients may only be able to afford a bulk billing psychiatrist. He was one of only a handful of bulk-billing psychiatrists in the metropolitan area.
3. He says his workload has decreased considerably. That has impacted on his financial situation. He now has about 248 patients 'on his books' who have varying levels of care and demands on his time. By contrast, in November 2016 (the time of the inquiry), his patient numbers were approximately 428 patients. This is because he is now not able to see new patients.
4. He would like to be allowed to start seeing new patients and plans to manage patient numbers by accepting only one new patient per week and ensuring there are dedicated follow up appointments set aside for those new patients. He says he has detailed this plan with Dr Bernardi's assistance.

Practice and professional management: Notes and records

1. Dr Fleisch agreed his notes were scanty and insufficient. It is clear he had made no note of seeing Patient A at the Casino. Further, progress notes of consultations did not contain sufficient information to allow another psychiatrist to take over care. His notes were also deficient in relation to his prescription of medication for Patient A.
2. Dr Fleisch acknowledged that he understood the importance of record-keeping requirements. No real reason was advanced as to why he had followed those kinds of deficient professional practices in that way.

Relationship and events with Patient A

1. Dr Fleisch first consulted with Patient A on 21 January 2016. It took some time to be able to properly assess him. He had received treatment from many psychiatrists and he was not very compliant with medication.
2. Patient A presented to him with symptoms of lethargy, tiredness and poor sleep. He had a history of bipolar affective disorder, depression and anxiety. Patient A described several stressors including him being the subject of an assault in February 2014 where he was allegedly attacked from behind while swimming. Patient A informed him that he had been in two car accidents. He had initiated legal claims in relation to their accidents and also in relation to the assault.
3. Dr Fleisch said that he would run into Patient A from time-to-time at the Casino. He said he would be polite to him when he saw him at the casino. He recalled discussing with him that they could not discuss anything in relation to his health, away from his practice.
4. His familiarity with Patient A extended beyond the bounds of the Casino and to the areas of his practice - for example, he gave Patient A a lift in his car on one occasion from outside the practice to the Casino.
5. He did tell Patient A that he took medications himself. He acknowledges that that was clearly unwise and inappropriate.

Events at Casino

1. Dr Fleisch said part of the reason for his ongoing contact with Patient A was that they played the same type of game at the casino. As he increased his gambling after his father's death, he saw Patient A more often at the Casino.
2. Dr Fleisch admits that on one occasion they shared a meal together at the Casino which Patient A paid for on his VIP card. Patient A also had access to a free room to stay overnight at the Star Casino which Dr Fleisch utilised on one occasion, authorised by Patient A. Clearly, that bespoke a relationship of some familiarity.
3. Dr Fleisch was spoken to at the Casino on one occasion about the excessive quantity of alcohol he had consumed and his reactions to other patrons. He admitted that on occasions he got angry when he lost large amounts of money at the Casino.
4. He denied Patient A's assertion that he borrowed money from Patient A.
5. He said that his only boundary issues were with Patient A. He initially felt for Patient A because of their mutual history of familial losses. He agreed his was an over-identification with Patient A. He later discussed that identification when he consulted with Dr Bernardi.
6. On one occasion, he saw Patient A gambling and losing a large amount of money: approximately $30,000. Dr Fleisch did try and intervene to stop him but then left as Patient A was not receptive of Dr Fleisch's advice or intervention - and, in fact, became quite angry with him. He became aware that Patient A had informed people at the casino that he had lost money because of Dr Fleisch and that he was very angry with him. Patient A did not return to consult him after that incident.
7. On one occasion Patient A saw Dr Fleisch in the Casino when the patient told him he had ceased his medication quite abruptly.
8. He said that, at the time he had dealings with Patient A, he was interacting less and less with his colleagues. He had stopped attending conferences and meetings altogether. He ceased voluntary peer supervision (and at one stage did disengage with one of his peer supervisors) yet continued to try to manage his practice in what he described as its 'insurmountable state'. He became disengaged both in his professional and private life.

Breach of boundaries

1. Dr Fleisch agreed that he was not as strict with his professional boundaries with Patient A as he should have been and that he should have been more prudent in his interactions with Patient A. On reflection he felt he should never have taken him on as a patient. That was particularly because Patient A was a complex patient and would not follow his advice on medication.

Self-awareness

1. Dr Fleisch's evidence was that he understands boundary violations 'intellectually' but he told Dr Burns on 3 April 2017 when discussing boundary violations that he had "…a special gift as a clinician because he can truly understand the experience of the patient." That was in the context of what was said to be other boundary violations about which there is no evidence before the Tribunal.
2. Dr Fleisch had said that these boundary violations and issues had not occurred with any other patient.
3. The case has been run by both parties such that there is no detail of any evidence to the contrary.

Awareness of boundaries: Courses

1. Dr Fleisch said that he had completed the Safe Professional Boundaries course facilitated by Davaar Consultancy in mid-2018.
2. He also did a number of on-line courses because his insurance company, Avant, had asked him to attend them. They were short courses which apparently did not take him very much time to complete.

Attitude towards Patient A

1. He had not attempted to apologise to Patient A. He said he had felt constrained from doing so given the currency of the complaint and the proceedings.

Recognition by Dr Fleisch of his gambling addiction: actions taken

1. During his evidence Dr Fleisch said that he had, upon receiving the HCCC file as part of these proceedings, formed the view that his gambling habit was more serious than he had previously thought. He now realised his relapse was serious and that gambling has, and had, the capacity to ruin his life.
2. He had come to that view after having seen the Casino records, and reassessing the enormity and the amounts of time and money he had spent since 2017, of the impact of gambling on his life.

St Vincent's Gambling addiction program

1. Dr Fleisch said that he had enrolled in or made application to join the St Vincent's program on Gambling Addiction on 23 January 2019. He was asked why he had delayed making that application given the clear relevance of that problematic gambling issue being central to the professional and legal issues he has been facing for over three years. He said that he had intended to enrol earlier but had to attend to his mother's illness, a severe stroke, in October 2018.

Self-banning from the Casino

1. Dr Fleisch was also asked why he did not consider it appropriate that he ban himself from the Star Casino - a voluntary exclusionary facility he knew existed. On the second day of the hearing, following comments from the Tribunal, he said that he had approached the casino and attained a self-endorsed order certificate. There was no similar action taken in relation to the Canterbury Club the venue of his relapse in 2018 - see para below.
2. His explanations for the delays in taking that action were that he felt pre-occupied by the HCCC complaints and this hearing.

Self-referral: Gamblers Anonymous

1. Dr Fleisch also said that he had not considered joining Gamblers Anonymous because he felt embarrassed about it and the possibility of running into patients in his area. He did not consider the option of going to another chapter or meeting group of that organisation in another area.

Relapse

1. Dr Fleisch admitted that he went to the Canterbury Club in 2018. That became clear in his consultations with Dr Samuels who had asked him about it - as opposed to Dr Fleisch volunteering it. He couldn't recall if he had told Dr Burns of that but thought that he had previously told him about that relapse. He had not considered whether he should have banned himself from the Canterbury Club.

Capacity to seek or accept help from professional colleagues

1. It appears from Dr Fleisch's evidence that, when the matters the subject of the complaints were occurring, he was working at a site where he was co-located with other practitioners. This included other psychiatrists and allied health professionals who would have been available to him to discuss matters in a collegial setting. He apparently did not avail himself of the opportunity to discuss matters with them or to seek their assistance or referrals by them.
2. His response as to why he did not seek such assistance was that he felt embarrassed by the prospect of making such approaches.
3. Dr Fleisch was also asked why he considered that he had changed sufficiently to be open to such professional assistance and mentoring and what the hallmarks were of his current preparedness and capacity to act in this way in his own interests. He said that as a result of his experiences he had revised his knowledge about gambling and what treatment and courses were available.

Personal insight

1. Dr Fleisch appears from his statement to have some insight as to what had occurred with Patient A, the inappropriateness of that interaction and the professional observations made of him by Dr Kitching (amongst others). He refers to his experiences with Patient A as being "a mistake" and "an enormous wake-up call". He says that the entire process has been "an eye-opener for me as a professional and as a person".
2. Dr Fleisch's proposals for ongoing support are that he will continue to see Dr Burns and engage in psychotherapy with Dr Gwynne. He is willing to comply with his current conditions which include regular supervision with Dr Bernardi and review by a Council Appointed Psychiatrist.
3. Dr Fleisch clearly has a good relationship with Dr Bernardi. He brings files to her and they have a specific list of issues that they discuss in addition to patient issues. He said she did a random audit of his files following the College guidelines in 2017/8. That included examining his note-taking and record keeping.

Attitude to imposed treatment

1. Dr Fleisch had made a number of comments to Dr Burns about his anger or frustration at the conditions which had been imposed on him by the Medical Council. Those comments belied a cynicism, if not hostility, about having to comply with Medical Council requirements in that he had to "play the game", particularly as far as supervision is concerned.
2. He explained those comments in his evidence on the basis that he had had at that time a limited view of the systemic issues arising from the complaints.
3. He agreed that he had described himself to Dr Burns as being 'avoidant'about his interaction with the HCCC and the Medical Council. He said that what he meant by that was that he did not feel he could look at the notes, records or documents detailing what had happened and felt embarrassed by them.

Attitude to supervision

1. The Tribunal has concerns that Dr Fleisch may have regarded his supervisory arrangement as simply being an obligation with which he has to comply for his continuation in practice. It is to be hoped that, with the assistance of his supervisor, he will continue to see them as an opportunity to deal with his underlying problematic issues and to enable him to understand the essence of guidelines relating to boundary violations with patients.

Evidence of social engagement

1. Dr Fleisch says he has now also re-engaged with friends and in social activities. He has close female friends. His former partner, his daughter's mother, lives in his house. She is currently unemployed. He is solely supporting her and his daughter for the time being.

Evidence: HCCC: Dr Samuels

1. Evidence was called from Dr Anthony Samuels, the psychiatrist nominated by the Medical Council of NSW to undertake independent health assessments of Dr Fleisch. Dr Samuels provided four reports dated 9 February 2017, 6 September 2017 23 March 2018, 30 May 2018 and 18 October 2018. A final updating report dated 28 February 2019 (exhibit 17) was tendered on 16 April 2019.
2. The essence of his reports were contained in the description from Dr Samuel's October 2018 report: "My impression is of a pleasant, well-intentioned man who entered private practice with quite limited experience at consultant psychiatrist level. He seemed to be motivated by a desire to help as many people as he could, particularly those with complex, challenging psychiatric disorders. One of the consequences of this was that he became overwhelmed by his workload. It is also clear that he had difficulty in setting boundaries and limits with his patients. There clearly were quite significant boundary transgressions involving the elderly man in the casino and he certainly displayed a significant lack of judgement in that regard." "Dr Fleisch seemed a little subdued but overall his mood and anxiety state seems to be quite stable. He seems to be getting a lot of benefit working with Dr Bernardi and his treating practitioners. He seems to have much more awareness of boundary issues and how he let things slide in the past. He also seems to have much clearer ideas about managing workload, about managing risk, about putting in place strategies to protect himself, and to ensure that he is providing a high standard of care. He is insightful but it remains evident that he still has some difficulties with setting limits e.g., seeing the former patient then providing him with a script. It does seem, however, that Dr Fleisch has learnt from this experience and has been admonished by his lawyers in this regard and I am sure he will be more cautious about such things in the future. It remains my view that Dr Fleisch has impairment within the meaning of the Law; namely a depressive and anxiety condition that seems to be well controlled on desvenlafaxine. He also has some underlying personality vulnerabilities which he is continuing to work on with his various therapists. His impairments do have the capacity to impact upon his professional functioning."

Psychiatric Issues

1. Despite Dr Fleisch going off Pristiq, Dr Samuels thought that his mood state seemed to be quite stable. He did appear a little anxious and this was also evident to the Reviewers but he seems to be managing quite well. His home life seems to be quite stable and he is in a supportive relationship. Dr Samuels also reported: "He enjoys the management aspect of his practice but remains concerned about his dwindling patient numbers. Dr Fleisch will be putting a proposal forward to the Medical Council in regard to taking on one new patient every two weeks but assured me that he will monitor his overall numbers and make sure he always had spaces to follow up patients and not get overloaded or stressed. Dr Fleisch assures me that he has stayed out of the casinos, that this had been difficult and he said therapy has been very helpful in this regard. He is well engaged with his therapists and now has a GP which is very positive. He tells me that he is also studying an online course on boundaries. He does remain a little anxious in light of the ongoing HCCC investigation. It remains my view that he does suffer from an impairment within the meaning of the Health Practitioner Regulation National Law (NSW) namely a mood disorder and personality vulnerability, alcohol use disorder and problem gambling."

Agreement with Dr Burns: diagnosis

1. Dr Samuels agreed with virtually all of Dr Burns' observations and opinions as set out in Dr Burns' report of 30 November 2018, in particular, that Dr Fleisch: 1. Had a borderline personality disorder and a major depressive disorder. While he thought Dr Fleisch's depression was currently in remission, he also had concerns about whether Dr Fleisch, given his personality vulnerabilities, might succumb to his issues or parts of them under the pressures of a return to full time practice; 2. Had a significant gambling disorder which he thought Dr Fleisch had not been fully aware of - at least to the extent of it. Dr Samuels thought that gambling behaviour was currently controlled on the evidence available to him. Dr Samuels thought that behaviour was problematic while not readily classifying it on the available evidence as an addiction; 3. Was socially disconnected (including not picking up on social cues and signs) with some communication difficulties as well as difficulties in engaging in social activity and sustaining healthy relationships; 4. Suffering from the other symptoms as set out in his report of 30 November, 2018 including chronic feelings of emptiness and death, harmful behaviour, identity disturbance, impulsiveness as well as poor concentration and planning; 5. Dr Fleisch's vulnerabilities, in particular, his difficulties in establishing and observing appropriate boundaries and the possibility of "crumbling under pressure" might be overcome by having a 'scaffold' of established mentoring and professional supports; 6. The structure should have built into it ongoing psychotherapy support sessions with a psychotherapist selected by Dr Fleisch and approved by the Medical Council. The frequency of those sessions should be as determined by the treating psychotherapist.
2. In amplification of his reports, Dr Samuels gave oral evidence on 12 February 2019 in which he said that he thought that the existing conditions on Dr Fleisch should continue, in particular, requiring him to attend on a Council appointed psychiatrist on a regular basis, possibly three-monthly. Some of those conditions could be eased in time after consultation by the Medical Council with the appointed supervising psychiatrist.

Patient limits: Number and complexity

1. Dr Samuels also thought that the condition restricting Dr Fleisch from taking on new patients could now be varied and that procedures be put in place to ensure that those new patients were capable of being seen within Dr Fleisch's existing skill set and experience.

Dr Fleisch's social supports

1. Dr Samuels agreed with Dr Burns that it appeared that Dr Fleisch was engaging well with his outside support structure and that he had made other adjustments to his personal life to provide a more supportive structure to his life. Those supports included his current living arrangements with his daughter and former partner.

Need for experienced and available supervisor

1. Dr Samuels agreed that the success of any future supervision would require an experienced and available supervisor and the willingness of Dr Fleisch to make regular and appropriate contact with such a supervisor. Further, that he and the supervisor should structure an opportunity of discussing any new patients and their issues and demands with his supervisor before proceeding to deal with them professionally.

Dr Samuel's most recent report

1. In his final report of 28 February 2018 (exhibit 17) based on his consultation with Dr Fleisch on that day, Dr Samuels stated that Dr Fleisch's mood was good, he was much more insightful and that he was very stable from psychiatric point of view. Dr Fleisch referred to the evidence that he had some features of a mild autistic spectrum disorder which he wanted to address with Dr Burns but "not at this point in time".
2. Dr Samuels concluded that report by reconfirming his opinion that Dr Fleisch had an impairment namely a mood and anxiety disorder, a gambling disorder and some personality vulnerabilities. These disorders seem to be in remission, however did have the potential to impact his professional functioning. Dr Samuels was supportive of Dr Fleisch increasing his patient numbers as long as he vetted new referrals with Dr Bernardi and strategies were put in place to ensure a manageable patient workload.

Dr Kitching

1. Dr David Kitching, who has been a practising psychiatrist for 23 years, provided two peer reports for the HCCC dated 18 September 2017 and 23 October, 2017. He also gave oral evidence on 12 February, 2019.
2. The tenor of his evidence was evident from and consistent with, the following paragraph of his report: "Dr Fleisch, by his admissions and by the admissions of Patient A, has not sought to conceal his behaviours that fall outside his professional role. That leads me to draw a conclusion that Dr Fleisch was simply not aware of the boundary violations that might and then did occur recurrently, and that Dr Fleisch did not have an awareness of the resources he should have accessed by way of external professional advice that may have been helpful. It is a matter frequently noted to psychiatry trainees in the course of their training, that the advice of a senior colleague should be sought for any and all matters of practice about which a practitioner, in training and in a consultant role, has difficulty. Dr Fleisch's regular attendance at the casino, as documented in the casino data, and the documented requests for him to leave, are suggestive of a problem in relationship to control of his mood or/and behaviour pertaining to gambling."
3. In terms of Dr Fleisch's conduct towards Patient A, Dr Kitching agreed that there were a wide range of boundary violations and those violations by Dr Fleisch (for example, the borrowing of money from the patient, the use of the patient's room) were not at the most severe end of the range which could occur. He thought that Dr Fleisch had simply not been aware of the boundary violations rather than attempting to conceal them. What was of more concern to Dr Kitching was the history of continuing violations given the length of Dr Fleisch's treatment of the patient and the history of the consultations with the patient.
4. In amplification of his reports, Dr Kitching gave oral evidence in which he said that: "prescribing documentation when matched to the PBS record, that I have noted in my attached summary …showed that Dr Fleisch has not documented his writing of prescriptions outside consultations. Overall the standard of clinical documentation is below the standard of a consultant psychiatrist but not significantly below".
5. Dr Kitching agreed in cross-examination that, over the relevant times, Dr Fleisch had a number of matters and events going on which might have distracted him. However, he thought that "…while those difficult personal social and emotional matters would have impacted on Dr Fleisch's knowledge and awareness of boundary violations, they did not explain them. In particular, the undoubted empathy which Dr Fleisch had for his clients should not have blinded him to the needs of his patients".

Impact and relevance of Patient A's conduct and propensities

1. Dr Kitching was asked about the impact of any findings of unreliability on the part of Patient A and whether he would change his opinions if Patient A was found to be lacking credibility. He was aware that there were a number of areas of factual disagreement between Dr Fleisch and Patient A about what had occurred during their patient/doctor relationship and outside including during their visits to the Casino. He was also aware that Patient A had some events in his prior medical and psychiatric history.
2. Dr Kitching was unable to form a view about those and said that he would need to be aware of the outcome of any resolution of those differences before determining if it would change his opinions or alter his views about future treatment.
3. The Tribunal has noted that, in making his assessment of the reliability of Patient A's complaints, Dr Kitching said that: "All this documentation leads to my conclusion that Patient A has a difficulty accepting and negotiating clinical recommendations in the context of his mood disorder and that his criticisms about his treatment commenced before his consultations with Dr Fleisch."

Dr Nick Burns

1. Dr Nick Burns, a consultant psychiatrist in private practice, provided reports dated 21 September 2015 and 30 November 2018. Dr Fleisch has been seeing Dr Burns, on a fortnightly basis since July 2015. He had been seeing Dr Fleisch during the period in 2016 when Dr Fleisch's father had died. During that time, Dr Fleisch had also been dealing with issues arising from his marriage and relationship breakdown, his long working hours and the various complaints which had been made to the HCCC. Dr Burns said that Dr Fleisch had described himself as being shocked and ashamed by his own behaviour.
2. In summary, Dr Burns diagnosed Dr Fleisch as having a borderline personality disorder, a major depressive disorder and a gambling disorder. He thought that Dr Fleisch had substantially improved over the period he had been seeing him. He thought Dr Fleisch's depression was now in remission and that he was now much less vulnerable.
3. Dr Burns said that he referred Dr Fleisch to have a neurocognitive assessment in 2015 because of his reported cognitive difficulties, to assess for a possible underlying neurodevelopmental disorder. Dr Fleisch did not see that neuro psychologist despite Dr Burns' repeated suggestions to that effect. Dr Fleisch did not provide any answer as to why he didn't follow up on the referrals - other than he was distracted by these proceedings and the pressures arising.
4. Dr Burns said that he recalled the statement being made to him by Dr Fleisch that "It's all part of the game". He thought that was part of his then reservations, cynicism and hostility to the whole disciplinary process and the impact it had had on him. Dr Burns did not think that attitude was still the case.
5. Dr Burns thought that Dr Fleisch should be able to practise professionally under and with the current conditions. He thought those conditions were reasonable for Dr Fleisch in his current situation but he also supported a variation to allow him to see new patients in a supervised way.

Disclosures of gambling

1. Dr Fleisch did not disclose his gambling issues in his initial consultation with Dr Burns in July 2015 (tab 43 notes 7/7015). That discussion did not occur until 2016 when Dr Fleisch said that he thought the gambling was part of his response to the (then) stressors in his life.
2. Dr Fleisch did not disclose his relapse in early 2018. They had discussed Dr Fleisch banning himself from the Casino over some months but he was not aware that Dr Fleisch had done that as late as 13 February, 2019. They had also discussed Dr Fleisch enrolling in Gamblers Anonymous in November 2016 but, again, that did not occur.

Dr Howard Gwynne

1. Reports from psychotherapist Dr Howard Gwynne dated 25 October, 2017 and 20 November, 2018 were tendered. He had been seeing Dr Fleisch on a therapeutic basis from 2013, with some interruptions, notably in 2016.

Dr Gwynne: diagnosis

1. He diagnosed Dr Fleisch as having a complex trauma disorder and associated transgenerational trauma. His latest report of 20 November 2018 stated that Dr Fleisch's psychological condition presented as a cluster of symptoms in the categories of post-traumatic stress disorder, personality disorder, depression, anxiety and attention deficit hyperactivity disorder.

Dr Gwynne: treatment

1. Dr Gwynne's treatment has been mainly in terms of building up Dr Fleisch's relational skills and emotional regulation. His professional relationship with Dr Fleisch went through some difficult times - for about six months - following the subpoena for his notes. Those were primarily issues of trust which took Dr Fleisch some time to overcome.
2. He thought Dr Fleisch had difficulties in managing relationships and emotions: those in turn had contributed to his professional boundary violations.
3. Dr Gwynne recommended that Dr Fleisch should have ongoing supervision, peer interaction and conduct of part of his practice in contexts where he is exposed to other psychiatrists. He thought that would provide a professional context and the peer exposure to ensure his practice conformed to standard practice behaviour. That would provide a professional context and peer exposure that ensured his practice conforms to standard practice behaviour.
4. Dr Gwynne also thought that Dr Fleisch's feelings of injustice and being unfairly treated by having to go through the procedures associated with the complaints had lessened in recent times.

Dr Elsa Bernardi

1. Dr Bernardi, a consultant psychiatrist, was called on behalf of Dr Fleisch. She is the supervisor for Dr Fleisch appointed by the Medical Council of NSW. Dr Fleisch has been having supervision by Dr Bernardi every two weeks since January 2018.

Reports and role

1. Dr Bernardi's report to the Tribunal for this hearing was dated 20 November, 2018. Dr Bernardi also provided reports to the Medical Council at two monthly intervals in 2017 and 2018 other than in November, 2018. Parts of her supervision reports were tendered - exhibit 12. She had seen a number of the reports to the Tribunal including Dr Samuels' reports and the original Medical Council reports. In particular, she had also received the s150 hearing report.
2. Dr Bernardi stressed on a number of occasions in her evidence that she was giving evidence in her capacity as Dr Fleisch's supervisor, not his therapist.
3. Dr Bernardi is, and has been, part of the RANZCP accredited peer support group which Dr Fleisch attends on a periodic basis. He had joined that peer review group earlier than Dr Bernardi. The last peer group session was in February 2019. During that session, the group had looked at some of the issues which had become apparent as being problem areas for Dr Fleisch.
4. Dr Bernardi carried out a modified practice review visit to Dr Fleisch's Bondi practice in March 2018. That was primarily to see that his practice was running efficiently. She made some suggestions for improvements.

Observations of Dr Fleisch's record-keeping and note taking

1. Dr Bernardi had conducted reviews of Dr Fleisch's files when he brought a limited sample of his records to her for review. She agreed that that action did not constitute nor satisfy the requirements for a random audit. She thought that Dr Fleisch's record-keeping was satisfactory subject to issues about his handwriting and note-taking. She had sighted various letters to referring general practitioners as part of the records and the ensuing correspondence. These letters were typed, well-written and descriptive. There were also adequate medication charts in the files she had seen.
2. Dr Bernardi thought that Dr Fleisch is 'now more regularly making use of peer review (systems) to discuss relevant issues'.
3. Dr Bernardi did not have concerns about Dr Fleisch's continuation in practice. She thought that she had a good relationship with him and that he would continue to improve in his practice. From her conversations with Dr Fleisch, Dr Bernardi thought he was comfortable with a requirement of ongoing supervision of him by her.

Condition as to New Patients

1. Dr Bernardi was aware of the existing conditions that Dr Fleisch not take on new patients. If allowed to accept new patients Dr Bernardi said she could work with Dr Fleisch to make an assessment quickly as to whether a particular patient was suitable to be seen by him.
2. In cross-examination Dr Bernardi said that she considered that initially Dr Fleisch should only accept one new patient per week, although this could gradually build to a maximum of three. She would work with him to review patient referrals for the complexity of the new patients and whether that was appropriate in the context of Dr Fleisch's then existing workload.
3. To assist in that process, Dr Bernardi had developed a 'schema' for Dr Fleisch's treatment of new patients.

Gambling

1. Dr Bernardi was aware of Dr Fleisch's gambling from the reports given to her and has discussed the role gambling played in the boundary violations in 2016. He did not disclose his relapse to gambling in 2018 to Dr Bernardi.

Audit/Supervision

1. Dr Bernardi thought that it would be appropriate for the Medical Council to carry out a random audit of Dr Fleisch's practice. She thought Dr Fleisch would not have any issues with this proposal.

Public Interest

1. Dr Bernardi thought Dr Fleisch had learnt a lot from the whole experience. He had disclosed a lot to her about his medical and psychological condition even though she was not his therapist. He had been very ready to disclose matters to her and had done that. She thought the existing conditions as proposed by the HCCC would satisfy the ongoing public interest.
2. In summary, Dr Bernardi considered that Dr Fleisch's insight had also been developed and heightened by his ongoing participation in courses on boundaries. She thought that Dr Fleisch's approach to Patient A had occurred at a time when he was not thinking clearly but that he saw what he had done (for example, giving Patient A a lift) as being in some respects as "an act of kindness". He now accepted that that was wrong.

Character references

1. Two character references were provided for Dr Fleisch by Ms Vivien Suttner and Feleena Emerton.

Ms Vivien Suttner

1. Ms Suttner, a psychologist, gave a reference on behalf of Dr Fleisch. She had known Dr Fleisch professionally for 3 years and over that time had held case conferences in relation to a number of patients.
2. Dr Fleisch was Ms Suttner's landlord at her Botany practice.
3. Ms Suttner thought and observed that Dr Fleisch maintained high professional and ethical standards. He was respectful of patients and had good communication practices with patients as well as being very responsive to them.
4. Ms Suttner was aware of details of Dr Fleisch's peer support and other professional support structures. She thought he was humble and had a deep knowledge of psychiatry.
5. Ms Suttner was aware of the difficulties Dr Fleisch had had since 2016. She was aware of his past gambling practices which she thought had ceased. Her knowledge of that was based on what Dr Fleisch had told her.
6. Ms Suttner had observed Dr Fleisch's note taking practices but had not viewed his records of any of the case conferences they had conducted together.

Ms Feleena Emerton

1. Ms Emerton, an Occupational Therapist gave a reference dated 7 November 2018.
2. She had known Dr Fleisch since 2009 and worked with him professionally when he was a Psychiatric Registrar and since that time.
3. Dr Fleisch is also her landlord.
4. Ms Emerton had not worked in any joint assessments with Dr Fleisch. They currently had about 10 patients in common.
5. Ms Emerton thought he was very concerned about the welfare of his patients.
6. She was aware of the complaints against him and his mental health difficulties, particularly his depression since the death of his father. She was aware of, and had read, a copy of the complaint against him. He had seemed very withdrawn and less communicative when he had received it.
7. Ms Emerton thought Dr Fleisch was genuinely remorseful for his behaviour. She thought from her discussions with him that he had learnt a lot about his professional approach and his observation of boundaries.
8. To Ms Emerton's observation, Dr Fleisch had become more inter-active both generally and with his patients in recent times. She had also observed that the timeliness of the observation of his appointments had improved.

Submissions: Both counsel filed detailed written submissions (exhibits 20 (HCCC) and 21 (Dr Fleisch). Against that background the following submissions were made:

Dr Fleisch

1. Counsel for Dr Fleisch submits that Patient A exaggerated, embellished or misrepresented the facts in his evidence on the areas where there was a factual dispute. In those circumstances, his evidence should not be accepted where it conflicts with that of Dr Fleisch. It is submitted that, in those circumstances, the particulars have not been made out.
2. It is also submitted that the gambling involved was not broad based in terms of form and location. Further, that Dr Fleisch indulged in those practices as a form of 'stress relief" and that he had either minimised, if not stopped, that practice when the issue was raised with him and these regulatory proceedings were commenced.
3. It is also submitted that what relapse occurred was in the same form (black jack games which were machine based). Further, it had been disclosed by Dr Fleisch rather than being discovered by others. His gambling was not carried out to increase his income. He seems to have been able to stop the habit completely to the present time.
4. It was accepted on behalf of Dr Fleisch that he was not seeking to trivialize the conduct as it has been established. It is also accepted that that conduct intruded on and blurred the patient doctor/relationship. While there were clearly some issues in the past affecting Dr Fleisch, it is submitted that his current situation appears to have been either resolved or very much in remission and he should be regarded as fit to practice under conditions.
5. Given the penalties available in the circumstances, and depending on the findings of the Tribunal, Dr Fleisch's counsel did not oppose the issuing of a reprimand.

HCCC

1. The HCCC submits that the Tribunal can, and should, be satisfied that all the Complaints have been established and that the relevant contested particulars on Complaints One and Four have been proven.

Conditions

1. Counsel for the HCCC submits that the evidence establishes that there is a continuing need for ongoing supervision of Dr Fleisch in accordance with the conditions outlined. Those conditions, if complied with by Dr Fleisch and properly monitored, would protect the public interest.
2. The HCCC submits that those conditions should continue 'for at least a year'. Further, that Dr Fleisch's objections to the onerous nature of the conditions should be rejected, particularly given that those conditions can, and will, be varied in accordance with the recommendations of the Council-appointed supervising psychiatrist.

Finding: Professional misconduct

1. The HCCC points to the fact that Dr Fleisch has admitted various allegations of examples of unsatisfactory misconduct. Further, that given the totality of the evidence and specifically as to the particulars on Complaint One, the finding should be one of professional misconduct. The nature of Dr Fleisch's conduct was of an ethically and professionally questionable nature which amounted to an abuse of his position of trust with his patient.
2. It is also submitted that the breaches found in relation to Complaint Two and the provisions of the regulations in regard to record-keeping showed Dr Fleisch's maintenance of his records was grossly inadequate; further that that practice, if continued, poses a threat to the continuity of care provided by Dr Fleisch. His conduct represented a blatant disregard for his professional obligations as a medical practitioner. His conduct was serious and amounted to professional misconduct.
3. The HCCC also submits that, on the matters set out in Complaint Three, Dr Fleisch's conduct fell below that of an equivalent practitioner and that findings of professional misconduct should be made. The HCCC concedes that those circumstances, particularly of the boundary violations, though serious, are on the less severe end of a scale of seriousness.
4. The finding on Count Four that Dr Fleisch practiced while under an impairment (which, the HCCC submits, must be accepted) should not be relied on to excuse his conduct as alleged in Complaints One Two and Three. The HCCC submits that that impairment is clearly established as is its detrimental impact on Dr Fleisch's capacity to practise his profession.
5. In summary, the HCCC submits, that in all the circumstances and while the Tribunal would be justified in imposing a suspension or cancellation of Dr Fleisch's registration, a reprimand would be an appropriate sanction.

Credit

1. Given the totality of the evidence, the HCCC submits that the Tribunal should make adverse findings in relation to Dr Fleisch's credit in a number of respects.

Professional misconduct

1. The National Law provides, relevantly: s139E Meaning of 'professional misconduct' [NSW] For the purposes of this Law, professional misconduct of a registered health practitioner means - unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; or 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.

Unsatisfactory professional conduct "139B Meaning of 'unsatisfactory professional conduct' of registered health practitioner generally [NSW] Unsatisfactory professional conduct of a registered health practitioner includes each of the following - Conduct significantly below reasonable standard 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) Other improper or unethical conduct. Any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession.

Impairment

1. The National Law defines impairment as applying to: "A person who has a physical or mental impairment, disability, condition or disorder (including substance abuse or dependence) that dramatically affects or is likely to detrimentally affect their capacity to practice their profession."
2. The Tribunal needs to distinguish between a finding of 'unsatisfactory professional conduct' and 'professional misconduct'. In this regard, Kirby P in Pillai v Messiter [No 2] (1989) 16 NSWLR 197, said: 'A deliberate departure from accepted standards or such serious negligence as, although not deliberate, would portray indifference and an abuse of the privileges which accompany registration as a medical practitioner.' ..The purpose of 'such a drastic consequence' was 'not punishment of the practitioner as such but protection of the public. The public needs to be protected from delinquents and wrong-doers within professions. It also needs to be protected from seriously incompetent professional people who are ignorant of basic rules or indifferent as to rudimentary professional requirements'.

Objectives and role of Tribunal

1. As a paramount part of its role, the Tribunal needs to consider and protect public health and safety. Further, the objective it pursues need to further the maintenance of high professional standards, the maintenance of the community's faith in the medical profession, the desirability of making available to the public any special skills possessed by the particular practitioner and the deterrence of bad unprofessional practices by other practitioners. That last objective includes ensuring that practitioners are aware of and observe the guidelines and professional standards of boundary violations. See generally: Gayed v Walton [1997] NSWSCA 121; Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [91]; Health Care Complaints Commission v Howe [2010] NSWMT 12. In the context of all the relevant objectives, the protection of public safety is the paramount concern - s 3A of the National Law.
2. Additionally in the context of this case - and particularly given the tenor of the evidence given by all the psychiatrists called (including those on behalf of the HCCC) - the Tribunal notes, and accepts, that its jurisdiction is essentially protective rather than punitive.
3. The determination of the Tribunal's objective in this regard to consider the health and safety of the public and the reputation of the profession is to be considered by factors including: 1. The need to protect the public against further misconduct by the practitioner; 2. The need for general deterrence; 3. The maintenance of high professional standards in the profession which is to be reinforced and transgressions denounced; 4. Public confidence in the profession must be maintained; and 5. It is desirable to make available to the public special skills possessed by the practitioner. In that regard Dr Fleisch's counsel submits that Dr Fleisch's practice of bulk billing and attempting to meet the need for referrals from community medical centres which deal with a substantial number of indigent patients in need should be recognised.

Common features of psychiatric evidence

1. The Tribunal notes that all practitioners who have seen Dr Fleisch in connection with these proceedings have commented on his compassion and empathy for patients. Further, that he has a lot to offer the community, particularly in providing psychiatric services on a bulk-billing basis. He is also clearly a very determined and committed individual who took substantial steps over a long period of time to obtain his professional qualifications and experience.
2. The common feature of evidence from his treating team and supervisor is that Dr Fleisch is on an "upward trajectory" and that his medical conditions and the impact of them have improved. However, it is clear that his problems and issues are deep-seated and in some cases arise from childhood and parental experiences.
3. What is also clear is that the events the subject of the complaints took place within a relatively short space of time after Dr Fleisch had undergone his professional training as a Registrar. There was common agreement that he had moved into solely private, unsupported practice at a very early stage in his career.

Observations: Dr Fleisch's evidence

1. Given that Dr Fleisch is a person of high intelligence and professional standing the Tribunal has reservations about his evidence and his acknowledgment of the issues he has, and continues to confront, as well as his preparedness to deal with them. He was, for example, very slow to answer questions relating to his personal behaviour which went directly to his mistakes when he should have had ready awareness or knowledge of the relevant facts and dates.
2. Nor did it appear to the Tribunal that he fully accepted his professional deficiencies were serious with significant consequences other than from a theoretical standpoint. That was evident in terms of his clear (and admitted) scanty and inadequate note-taking and patient and prescription record maintenance. His limited responses led to the Tribunal's inability to follow the basis and reasons for some of his prescriptions.

Concealment and/or minimization of evidence by Dr Fleisch

1. In a similar way, the Tribunal has concerns about Dr Fleisch's accounts of his gambling in that on various occasions he has, at least initially, concealed his gambling behaviour and then, when it was demonstrated to him as being clearly wrong, minimised it.
2. That tendency was also apparent during the conduct of the s 150 hearing, that Dr Fleisch had difficulty in understanding questions going to his conduct. Again, that was in circumstances where he must have known the issues to which the questions were directed and what the situation was.

Factual disputes between Patient A and Dr Fleisch

1. The Tribunal has heard from both Dr Fleish and Patient A in relation to their accounts of what occurred both during and outside consultations - in particular in the Casino.

Approach

1. The Tribunal's approach has been to consider the totality of the evidence in the context of the complaints, the particulars relied on to establish those complaints, the findings on the evidence and on the other matters the Tribunal is required to determine.
2. The Tribunal considers that the substantial issues for determination arising out of the complaints are: 1. Whether there were boundary violations by Dr Fleisch; and 2. Whether there were deficiencies in Dr Fleisch's record-keeping; and, if so 3. Whether those breaches amount to unsatisfactory professional conduct or professional misconduct.

Standard of Proof: factual issues

1. The allegations made by Patient A are both serious and involve serious consequences for Dr Fleisch. Accordingly, the standard of proof is that established by the High Court in Briginshaw v Briginshaw (1938) 60 CLR 336[1938] ALR 334(1938) 12 ALJR 100; [1938] HCA 34. The Tribunal has approached the totality of the evidence accordingly.

Factual issues

1. Given the process in which the parties were (sensibly) involved ahead of the hearing to isolate the factual issues in dispute, a number of facts were either agreed or denied ahead of, or during the course of, the hearing. Some of the remaining factual disputes do not appear to the Tribunal to be relevant to the central issues as set out above.
2. The Tribunal considers that it is unnecessary to make findings on all the particulars, only on those matters necessary to establish whether the complaints have been made out and, once that has been established, the findings as to the nature of the conduct involved when considering the cumulative effect of the evidence.

General observations of the parties

1. As with most factual disputes the views and evidence of Dr Fleisch and Patient A differed widely on some but not all matters. It is appropriate to set out some preliminary observation of the parties which informed the Tribunal in this process.

Patient A

1. The Tribunal approached the assessment of the evidence of Patient A with an awareness of his background including his age, linguistic abilities and his history of various other complaints. The Tribunal has also taken note of Dr Kitching's observations as set out in his report.
2. During the hearing, Patient A was certainly antagonistic towards Dr Fleisch and voluble in recounting what he thought had occurred to his (Patient A's) own detriment. He expressed himself very forcefully and, at times, angrily, about the incidents as well as what he considered to be Dr Fleisch's conduct and the lack of his professionalism and assistance. He provided additional and possibly exaggerated details of the events described in the written complaints. It is also clear he has had past psychiatric problems which he identified in his evidence and other evidence.
3. Nevertheless, much of Patient A's evidence on central matters of relevance was substantially consistent with the independent evidence of what had occurred and the other issues in the agreed list of facts and issues. He did not resile from the fundamental parts of his evidence despite extensive cross-examination. No independent evidence was put to him to challenge his account and, as has been stated elsewhere, Dr Fleisch's case has not been assisted by his non-existent, inadequate or poor records.

Dr Fleisch

1. Dr Fleisch admitted certain matters. It seems clear that Dr Fleisch had a range of reactions to Patient A, namely, initially being highly sympathetic to him (being 'almost fond of him' - a description he later withdrew - then finding Patient A to be difficult, then extremely difficult, and then acquiescing in his dealings with him to the extent of prescribing him medication that ought to have been prescribed by his general practitioner.
2. Dr Fleisch's admissions on other less important aspects of his interaction with Patient A make it clear that Dr Fleisch was at the Casino during the relevant times. He had interactions with Patient A at that venue knowing he was his patient who had a problem with gambling. They had some considerable inter-action in a social and gambling context. During one such event he observed Patient A gambling extensively - and apparently losing. He made comments about it, albeit those comments or advice were rejected angrily. He denied encouraging Patient A to continue gambling.
3. Dr Fleisch denied the specifics of Patient A's assertions about Dr Fleisch asking to borrow money or offering him alcohol in a consultation.
4. It seems clear that Dr Fleisch had either asked for or been offered a hotel room at the Casino by Patient A, which was paid for by Patient A's VIP card. Whether it was offered or requested in this context is of minor significance.

Context

1. What is significant is that those events occurred between a treating psychiatrist and his patient in a casino where both were gambling.
2. It would have been clearly within Dr Fleisch's knowledge as a patron of the Casino that those kinds of VIP benefits are offered by gambling institutions mainly to entice persons who have a track record of gambling large amounts to continue to gamble and spend more money. That is done to encourage people in an atmosphere of heightened adrenaline where rational decision-making can be suspended, particularly for those with a tendency towards gambling. That was the environment in which Dr Fleisch and his patient met and mixed and had discussions. It was, and is, a very different environment from the relative calm of a consulting room.
3. All that factual matrix occurred within a context where it is clear there had been ongoing personal discussions which had their origin in their professional relationship. Those discussions and interaction went beyond professional boundaries. It is clear, for example, that Dr Fleisch discussed his own medication with Patient A on another occasion. While of itself minor or not necessarily an issue, it all contributed to the blurring of boundaries in terms of the perception of a personal rather than a professional relationship.

Absence of relevant notes

1. In determining what issues of credit there are, Dr Fleisch was not assisted by the absence of any notes of substance let alone contemporaneous records about his contact with Patient A in the Casino or elsewhere.
2. What is clear is that, at the relevant time, Dr Fleisch's records were in a fairly chaotic form. That was also the case in terms of his accounts of Patient A's behaviour. Similarly, it is clear that he prescribed Patient A some medication on occasions without noting that.
3. The Tribunal considers that Dr Fleisch's medical records were inadequate quite apart from the professional issues of the breach of boundaries which have arisen. In terms of the relevant legal and professional principles, it would have been almost impossible for any other psychiatrist to take over the conduct of Patient A's treatment.
4. The requirements of proper record taking against the background of the guidelines relating to professional boundaries are either designed to, or have the effect of, protecting both patient and doctor and to keep their contact within professional boundaries. What occurred here protected neither. Viewed cumulatively, it was a clear breach of professional standards which, in the Tribunal's view, amounts to unsatisfactory professional conduct.

Matters relevant to Dr Fleisch and his future: Gambling addiction

1. While Dr Fleisch says that he has now stopped gambling, the Tribunal notes that he has only recently contacted the St Vincent's Hospital Gambling Clinic where he says there is a waiting list of some months. He did that in January, 2019 about three weeks prior to the commencement of these proceedings.

Delays in dealing with issues

1. That delay was against a background of where Dr Fleisch had been repeatedly told by various consultant specialists - and must have been clear from his contact with the regulatory authorities - that he should consider treatment for his gambling addiction and specifically that he should consider banning himself from the Casino. Self-banning is an easy and simple procedure as he demonstrated when completing it during his evidence in the hearing. His delays in doing that until he was confronted with the realities of this hearing, particularly given his prior attitude of either hostility to, or cynicism about, the regulatory processes involved by the HCCC and the Medical Council, are of concern the Tribunal. His excuses, such as for example, that he was prevented from doing so by his mother's illness, were inadequate to explain his inaction in the context of the overall time periods involved and the advice he had received.
2. Similarly, the fact that he had not responded to Dr Burns' suggestion to see a neuropsychologist or a person specializing in gambling addiction is of concern to the Tribunal.

Implication of delays

1. Those delays in both respects are not consistent with a party facing regulatory action wishing to deal with his clear and pressing issues in an appropriately determined, let alone an expedited, fashion. It either bespeaks a disregard of or failure to come to grips with the investigatory and regulatory processes or a very limited insight into the extent of his own problems.

Significance of Relapse

1. Dr Fleisch's evidence makes clear that he does not consider his relapse in going to the Canterbury Club to be significant. The Tribunal has a different view - and also has concerns in relation to Dr Fleisch's apparent confidence that his gambling is in remission. He needs both internal and external structures to reinforce that capacity to resist what can be a powerful addiction - which has led to Dr Fleisch's problems.

Confidence in his own skills and insights

1. On a number of occasions Dr Fleisch told his treating psychiatrists that he thought he had "a special skill" and insight into the issues confronting his patients. He said that that arose from his own experiences and reflections. Whether that level of self-confidence is justified is an area which the Tribunal would hope Dr Fleisch discusses with his treating psychiatrists.
2. It is noted that in that regard, Dr Fleisch considered that, on reflection he should never have taken on Patient A as a patient. The Tribunal agrees with this reflection and hopes that Dr Fleisch will internalize his reasons and thinking about his level of experience and competence in his future dealings with all patients.

Need for full disclosure

1. It needs to be emphasised that support, supervision and assistance will only be as good as the information provided by Dr Fleisch to anyone involved in his treatment or supervision. In that regard, the Tribunal has noted and is concerned by the apparent initial concealment by Dr Fleisch of manifestations of his gambling and, when confronted by it, his minimizations of them.
2. Dr Fleisch was at pains during his evidence to indicate that he had changed in his attitude towards supervision and professional consultations within that context. The evidence is that he was, at various stages particularly during 2016, either hostile to, fearful of, or cynical towards the compulsion by the Medical Council to have treatment and supervision.
3. However, prior to the imposition of these treatment conditions, in 2016 when he was most unwell, he suspended his treatment with Dr Gwynne for a period of at least six months. The Tribunal considers this justification for why treatment and supervision should be mandated by conditions.

Other professional supervision

1. What is clear is that Dr Fleisch draws considerable assistance from his two peer groups with whom he meets monthly and with whom he has apparently discussed files and patients. Although there was little independent evidence of his practices in that regard, such a regime is accepted by the Tribunal as being a valuable resource and an appropriate, if not essential, practice for him.

Breach of boundaries

1. Dr Fleisch clearly engaged in a personal relationship with Patient A in what amounted to a breach of the guidelines on the maintenance of professional boundaries. The ethical considerations around such relationships, between practitioners and patients, ruptures a fundamental tenet of the medical profession, flowing largely from concerns about the vulnerability of the patient in relation to the practitioner (HCCC v. Jane Waddell (No 1) [2012] NSWNMT 17 at [182]; HCCC v Athour [2016] NSWCATOD 5 at [43]). This power imbalance that exists between patient and doctor and the possibility for exploitation or harm (HCCC v Athour [2016] NSWCATOD 5 at [46]) is a matter relevant to the Tribunal's primary protective function.

Boundary violations

1. On the totality of the evidence, the Tribunal finds that: 1. Dr Fleisch took, or accompanied, Patient A to, or met him at the Casino; 2. That occurred after Patient A had consulted Dr Fleisch professionally; 3. Dr Fleisch was aware, at least on one occasion, that Patient A was gambling extensively and with large amounts of money; 4. Dr Fleisch either asked for, or accepted, items and benefits which he knew were advanced from, or purchased with, Patient's VIP gambling card; 5. Dr Fleisch discussed his own gambling habits with Patient A in a way which was inappropriate. It was part of the blurring of boundaries between a vulnerable patient and a practitioner in that it could have been construed as tacit encouragement for the patient to continue the conduct on which he had sought professional help from Dr Fleisch.

Record-Keeping

1. The Tribunal finds that the oral evidence and the notes of Dr Fleisch's consultations as tendered establishes that Dr Fleisch's record-keeping was inadequate and manifestly unsatisfactory. That record-keeping should have included the particulars of his opinions, the medication(s) prescribed and a level of detail and sufficient to be appropriate for his consultations with Patient A. It was not. The scant and inadequate notes tendered (even to the extent they were legible) would not have permitted another medical practitioner to continue management of Patient A.
2. The Tribunal regards Dr Fleisch's failures to keep proper records of his consultations with Patient A as constituting behaviour or a level of unsatisfactory performance justifying the sanction to be imposed pursuant to Pt 4 of cl7(1) of, and Schedule 2 to, the Regulations.
3. While the Tribunal does not regard that departure from proper note-taking as being a deliberate attempt at concealment by Dr Fleisch, it has concerns that his overall note-taking practice, with at least this patient, did portray a level of indifference to the requirement with or casualness towards, the compliance requirement - see Kirby P in Pillai v Messiter [No 2] (1989) 16 NSWLR 197.
4. Nevertheless there were some records taken. Further, there is no evidence that Dr Fleisch's practice with this patient were part of a wider, or continuing delinquency nor, as noted above, was there any attempt to conceal or manipulate the record(s).

Finding: Complaints

1. The Tribunal finds that Complaint One (unsatisfactory professional conduct under s 139B (1) (a) and (l) is established.

Unsatisfactory professional conduct

1. The Tribunal finds that Complaint Two (unsatisfactory professional conduct under s 139B (1) (b) is established. Contravention of Health Practitioner Regulation (NSW) Regulation 2010 made under National Law - record keeping. Medical records grossly inadequate particularly in relation to medication prescribed. Finding of unsatisfactory professional conduct
2. The Tribunal finds that Complaint Three (professional misconduct under s 139E National Law) is established.
3. Having regard to the totality of the evidence and particularly that of Dr Kitching, the Tribunal finds that the course of conduct by Dr Fleisch demonstrated a degree of misjudgement which was significantly below the standard reasonably expected of a practitioner of the equivalent level of training or experience which also was such as to manifest unsatisfactory professional conduct.
4. Further, that Dr Fleisch engaged in more than one instance of unsatisfactory professional conduct and those, when taken together, amounted to conduct of a sufficiently serious nature to justify such a finding of professional misconduct.

Finding of professional misconduct determined.

1. Finding of failure to observe professional boundaries and inadequate medical records determined. The Tribunal finds that Complaint Four (impairment within s 5 of the National Law) is established.
2. The Tribunal finds that Dr Fleisch has an impairment as set out in the particulars and supported by evidence by Drs Samuels and Burns. At the time, that impairment was sufficient to have overcome his professional judgment in respect of the matters concerning Patient A as outlined. His professional judgment, which should have been part of his professional approach as inculcated by his training and experience, should have been exercised to the benefit of the patient. It was not. Dr Fleisch should not have conducted himself in the manner he did as found.
3. Here the impairment goes some way to explain aspects of Dr Fleisch's conduct but it needs to be viewed against the totality of his behaviour and the length of time and aetiology of his condition - see generally Reimers v HCCC [2012] NSWCA 317 per Basten JA at [12]-[14].
4. The Tribunal considers that Dr Fleisch's condition partially explains, but does not excuse, his conduct.

Finding: Particulars

1. As is properly conceded by the parties, all the particulars relied on under the respective complaints do not need to be proved to find the different complaints established. Some of the areas of the factual accounts and dispute are minor, some significant. Some are within the boundaries of what might be expected from different individuals seeing and recalling matters differently.
2. The Tribunal does not consider, for example, that the precise sequence and the identity of the person who made either an offer or request, whether there was discussion of money or a benefit is significant in the overall context of what was an exchange in a casino between doctor and patient. It seems clear, for example, that Patient A was shown some money where there does not seem to have been any reason to do so in the context of a professional relationship. Dr Fleisch had done that on other occasions - for example, to Dr Gwynne in the course of his comments about gambling.
3. Accordingly the Tribunal sets out the evidence it considers to be relevant to the issues to be determined. Against that background, these reasons then set out the determination of the factual issues isolated in accordance with the list of agreed and disputed facts as the parties have urged those findings to have been made. The findings on the particulars are set out at the conclusion of the review of the evidence.

Determination of particulars

1. Against that background and in terms of the findings the Tribunal was asked to make at the outset of the hearing given the agreed facts and issues document (exhibit 13) and the various matters admitted and denied, the Tribunal answers those questions as follows:

Complaint One 1 (a) The Tribunal finds this particular is proved. 1 (b) The Tribunal finds this particular is proved. 1 (c) Dr Fleisch admits this particular and the Tribunal finds it proved. 1 (d) Dr Fleisch admits this particular and the Tribunal finds it proved. 1 (e) The Tribunal finds that this particular is not proven. 2 (a) Dr Fleisch admits this particular and the Tribunal finds it proved. 2(b) The Tribunal finds that that particular of the request or demand for money is not proven. 2(c) The Tribunal finds that this particular on the balance of probabilities is not proven. 3(a), (b), (c), (e) Dr Fleisch admits these particulars and the Tribunal finds them proved. 3(d) The Tribunal finds that this particular on the balance of probabilities is not proven. Particulars 4, 5 and 6 Dr Fleisch admits these particulars and the Tribunal finds them proved.

Complaint Two Dr Fleisch admits the particulars of this complaint and the Tribunal finds them proved.

Options

1. Depending on the determinations made, the sanctions available to the Tribunal include a cancellation, suspension, the imposition of a reprimand or a fine as well as the imposition of conditions. What sanction is imposed depends on the assessment of the conduct involved and the circumstances of the individual practitioner.
2. Where the Tribunal makes a positive finding of professional misconduct, the Tribunal may suspend the practitioner's registration for a specified period or cancel the registration entirely. Whether the offence(s) are sufficiently serious to warrant suspension or deregistration is matter of degree and judgment see Sabag v Health Care Complaints [2001] NSWCA 411 at [82]).

Reprimand

1. Having considered all the evidence and the submissions made, the Tribunal considers that a reprimand is an appropriate sanction, particularly because of the finding that the breaches are at the lower end of seriousness. That is intended to bring to the attention of Dr Fleisch, and others in the profession, that his professional breaches and misconduct was of a serious nature inconsistent with his professional obligations.
2. Dr Fleisch is reprimanded accordingly.

Need for protective orders

1. Against that finding of the existence of an impairment, what needs to be considered is whether that impairment currently detrimentally affects, or is likely to detrimentally affect, his capacity to practise as a psychiatrist.
2. The Tribunal considers that protective orders are necessary.

Conditions

1. Having considered the conditions previously imposed, Dr Fleisch's compliance with those conditions, the additional conditions submitted by the HCCC during various stages of the hearing and having heard the parties' submissions against the background of all the evidence, the Tribunal determined that it is appropriate to impose conditions on Dr Fleisch's registration in these terms:
2. To obtain Medical Council of NSW approval prior to changing the nature or place of his practice.
3. To practise under category C supervision in accordance with the Medical Council of NSW's Compliance Policy - Supervision (as varied from time to time) and as subsequently determined by the appropriate review body. 1. Dr Fleisch must nominate the supervisor within 7 days of this decision. 2. Supervision is to occur on a fortnightly basis. 3. The duration of each meeting is to be at least 1 hour. 4. At each supervision meeting Dr Fleisch is to review and discuss his practice with his approved supervisor with particular focus on: 1. Communication issues 2. Workload 3. Maintaining professional boundaries 4. Pharmacotherapy issues 5. Other issues raised 1. To authorise the Medical Council of NSW to provide the proposed and approved supervisor with a copy of this and any other relevant decisions. 2. To authorise the supervisor to forward reports to the Council (in a Council approved format) on a two monthly basis.
4. To treat no more than 10 patients in any one day.
5. To practice no more than 5 days per week.
6. Not to treat any new patients until Dr Fleisch has discussed the patient with his Council approved category C supervisor at his fortnightly supervision meetings and the supervisor agrees that Dr Fleisch treats the new patient. 1. Dr Fleisch is limited to consulting a maximum of three new patients per week. A 'new patient' is defined as any patient not seen by the practitioner in the 6 months prior to 29 November 2016. 2. The patients discussed at each supervision meeting are to be recorded in the supervision meeting record report including whether or not the supervisor supported Dr Fleisch treating the new patient. 3. Dr Fleisch may only provide emergency medical services to such persons in compliance with section 139C(c) of the Health Practitioner Regulation National Law. If any such event occurs, the practitioner must notify the Medical Council of NSW and his supervisor within 24 hours and provide details of the event and any other information as requested by the Council.
7. Dr Fleisch is to submit to an audit of his medical practice, by a random selection of his medical records by a person or persons nominated by the Medical Council of NSW and: 1. The audit it to be held within 6 months from the date of the decision and subsequently as required by the Council. 2. The auditor(s) is to assess his compliance with good medical record keeping standards and legislative requirements 3. To authorise the auditor(s) to provide the Council with a report on their findings 4. To meet all costs associated with the audit(s) and any subsequent reports.
8. To authorise and consent to any exchange of information between the Medical Council of NSW and Medicare Australia for the purpose of monitoring compliance with these conditions.

PRIVATE CONDITIONS:

1. To attend for treatment by a psychiatrist of his choice. The frequency of treatment is to be determined by the treating practitioner. Dr Fleisch: 1. is to authorise the treating practitioner to inform the Medical Council of NSW of any of the following: 1. Failure to attend for treatment; 2. Termination of treatment; or 3. A significant change in health status (including a significant temporary change). 1. must provide the Council with the professional details of the treating practitioner.
2. To attend for treatment by a general practitioner of his choice. The frequency of treatment is to be determined by the treating practitioner. Dr Fleisch: 1. is to authorise the treating practitioner to inform the Medical Council of NSW of any of the following: 1. Failure to attend for treatment; 2. Termination of treatment; or 3. A significant change in health status (including a significant temporary change). 1. must provide the Council with the professional details of the treating practitioner.
3. To attend for treatment by a psychotherapist of his choice. The frequency of treatment is to be determined by the treating practitioner. Dr Fleisch: 1. is to authorise the treating practitioner to inform the Medical Council of NSW of any of the following: 1. Failure to attend for treatment; 2. Termination of treatment; or 3. A significant change in health status (including a significant temporary change). 1. must provide the Council with the professional details of the treating practitioner.
4. To take any medication as prescribed by his treating practitioners.
5. The extent of his clinical practice is to be guided by his health status and the advice of his treating and Council-appointed practitioners.
6. To attend for assessment by a Council-appointed psychiatrist, as directed by the Council and at the Council's expense, and then to attend for review by a Council-appointed psychiatrist on a 3 monthly basis or as otherwise directed by the Medical Council of NSW
7. To attend a Medical Council of NSW's Review Interview on a 3 monthly basis, or as otherwise directed by the Council.
8. To authorise the Medical Council of NSW to forward copies of this decision and any subsequent Council Review Interview or other reports and any other information relevant to his health and treatment to the Council-appointed practitioners and to his treating practitioners.

Costs

1. The HCCC also asks for a costs order in its favour and submits that it is entitled to an order that Dr Fleisch pay its costs in these proceedings.
2. The Tribunal has heard the evidence and considers that the HCCC was well justified in the approach it has adopted to the proceedings. The Tribunal has been considerably assisted by the approach and evidence presented, particularly by the HCCC and especially in the context of this case in relation to the fine line of the determination of whether the conduct constituted professional misconduct or unprofessional professional conduct.
3. There has been considerable expense to the HCCC with the time and resources necessary to complete this investigation and hearing. It could not be said that Dr Fleisch was caught by surprise by any of the allegations nor opinions. Indeed, in the Tribunal's view, all the professional witnesses have been at least, if not more than, appropriately fair, towards Dr Fleisch.
4. There is nothing in the conduct of the proceedings or the evidence presented to affect the HCCC's entitlement to an order that the Respondent pay 100% of its costs.

Release of reasons

1. The Tribunal directs that a copy of these reasons be forwarded to the Council Appointed Psychiatrist, the approved supervisor and treating practitioners.

Orders 1. The Respondent, Dr Fleisch, is reprimanded. 2. Conditions are imposed on Dr Fleisch's registration. 3. The names of any person who has been a patient of the Respondent who has given or who has been referred to in the evidence shall not be disclosed to any person or entity. 4. A copy of this decision may be released by the HCCC. 5. A copy of these reasons be forwarded to any supervisor nominated by the Medical Council and to Council Appointed Psychiatrist, the approved supervisor and treating practitioners. 6. The Respondent is to pay the Respondent's costs as agreed or assessed.

I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar 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: 10 May 2019