Health Care Complaints Commission v FSF

NCAT Occupational|2023-02-09|Before: Dr P

ure is necessary for the effective implementation and administration of the orders made in the proceedings.

Prohibit the disclosure of the names of the persons listed in the Schedule to the Complaint.

REASONS FOR DECISION

The Health Care Complaints Commission ("the Commission) complains that FSF ("the Respondent") is guilty of unsatisfactory professional conduct under s 139B(1)(a) or (l) of the Health Practitioner Regulation National Law (NSW) ("the National Law") (Complaint 1) and that she is guilty of professional misconduct under s 139E of the National Law (Complaint 2).
In relation to both Complaint 1 and 2, the Commission relies on the same facts many of which were admitted although the Respondent contends that the circumstances surrounding those events do not support a finding of professional misconduct.

Background

The Respondent graduated in medicine and obtained a Masters in Psychiatric Practice and membership of the Royal College of Psychiatrists.
On coming to Australia, the Respondent was first registered as a medical practitioner more than 10 years ago and obtained General and Specialist (Psychiatry) registration about a year later.
The Respondent became a Fellow of the Royal Australian & New Zealand College of Psychiatrists about 8 years ago.
Around the same time, she completed a six month Advanced Training rotation in Forensic Psychiatry with a forensic facility.
About two years later, the Respondent obtained an Advanced Forensic Certificate.
Shortly thereafter, the Respondent commenced work as a Forensic Psychiatrist with a forensic facility and worked there until her resignation about 4 years ago.
The Commission alleges in relation to Complaints 1 and 2 that between February and March 2020, the Respondent had an improper sexual and romantic association with a former patient, Patient A, who was at that time under the care of the forensic facility.
By way of context, we set out in some detail the background to the conduct which gives rise to the first two particulars.
The Respondent had care of the patient between November 2016 and July 2017 and between August 2019 and October 2019. In about July 2017 the Respondent was subject to complaints about her professional conduct at work and in particular in relation to her contact with Patient A, specifically that she failed to maintain appropriate professional boundaries and failed to exercise appropriate objectivity. By letter of 24 July 2017 the Respondent was notified of the complaints and told that there would be a formal investigation of them. Until the complaint process was concluded, she was directed that she was to have no involvement in the care of Patient A.
At the same time, the Respondent made a complaint that she was subjected to bullying and threatening conduct by two more senior doctors.
The investigation process was protracted and the Respondent perceived that there were significant breaches of confidentiality which led her to believe that it was widely known that she was being investigated and that she was the subject of gossip amongst the staff. Ultimately the Respondent was notified that the evidence was insufficient to substantiate the complaints.
While still treating Patient A, the Respondent and the multidisciplinary team concluded that he was appropriate for conditional release and a report was prepared for the Mental Health Review Tribunal supporting that opinion. The Respondent said that, without consultation with her and with what she regarded as inadequate reason, the Clinical Director told her to alter the recommendation in the report to recommend that the patient be transferred to a Medium Secure Unit. The Clinical Director attended the Tribunal hearing and, in the Respondent's view misrepresented the work that she and her team had done in preparing the report in order to support the recommendation that the Patient not be conditionally released but be transferred to a Medium Secure Unit.
The Respondent said that the patient was significantly distressed when he understood that he was not to be conditionally released and attempted suicide by hanging.
After being removed from the Respondent's care in July 2017, she said that the patient's mental health deteriorated to the point where he was placed in an acute ward.
After two years the patient was transferred from the acute ward to the ward in which the Respondent was then working. The Respondent was advised to take over the patient's care but to share the care with another practitioner to the effect that she would be in charge of the patient's "discharge planning".
The Respondent said that workplace complaints about her commenced immediately and they were again subject to formal investigation.
In October 2019 a letter was found in the patient's cell in which he expressed strong emotions towards the Respondent. She immediately relinquished his care. The discovery of the letter together with other matters, prompted another investigation of the Respondent. The investigation was concluded after the Respondent apologised to staff for swearing during a meeting (one of the complaints made against her).
A fourth complaint was raised about the Respondent in relation to her association with the patient but it was decided the complaint did not warrant investigation.
The Respondent resigned from the forensic facility in February 2020.
It is clear from the Respondent's written statements, the transcripts of the s 150 hearing and the hearing before the Tribunal, that the Respondent's experience of the investigations into her conduct, the breach of confidentiality about the nature of the complaints, none of which was upheld and her view that she had been bullied and intimidated by the doctors supervising her, had a significant effect on her.
Having left the forensic facility, the Respondent commenced work with a local Community Mental Health team. At this time, the patient had been conditionally released to a facility in the same local area in which the Respondent was working. She believed this would inevitably mean that she would have contact with the patient and with the forensic facility and so she resigned that employment and moved to another state to work.
After the Respondent left the forensic facility, the patient managed to obtain her phone number and was insisting on keeping contact with her. The Respondent changed her number. The patient took to calling the Respondent at her place of work and she, as she said, fearing that their conversations would be overheard, gave him her new mobile phone number.
The patient was conditionally released on 25 March 2020 and immediately phoned the Respondent. The Respondent was in NSW at the time and she and the patient agreed to meet and they had sexual intercourse as they did on the following two evenings. She then returned to the state in which she was working.
The Respondent and the patient maintained telephone contact for a further six weeks.
The patient's conduct while on conditional release was determined to be unacceptable and the order for conditional release was revoked and he was placed in a mental health facility. While there he assaulted another patient and injured a nurse, was charged and convicted of assault and he was taken into custody.
In about July 2020, the Respondent discovered that the patient had been assaulted in prison and had been severely injured. She made contact with him and they recommenced phone contact, ceasing the contact in December 2020 when the Respondent terminated her association with the patient.
This then is the context in which the Commission asserts that conduct complained of occurred.
In considering the complaints and the supporting particulars we must be "comfortably satisfied" that the complaint had been established on the balance of probabilities having regard to the potential seriousness of the consequences for the Practitioner (see Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 and Gautam v Health Care Complaints Commission [2021] NSWCA 85).

COMPLAINT 1

By this complaint, the Commission alleges that the Respondent is guilty of unsatisfactory professional conduct pursuant to s 139B(1)(a) or (l) the National Law and/or engaged in improper or unethical conduct relating to the practice of purported practice of medicine.

Unsatisfactory professional conduct

Unsatisfactory professional conduct is defined by s 139B(1) of the National Law as: (a) 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 of purported practice of the practitioner's profession."
The Commission supports this complaint with 4 particulars. 1. Between February and March 2020, the practitioner engaged in an inappropriate sexual relationship with Patient A for a period of three days. 2. Between February and May 2020, the practitioner continued an inappropriate personal relationship with Patient A, via telephone, for a period of six weeks. 3. By her conduct in particulars 1 and 2, the practitioner failed to comply with: (a) Sexual Boundaries: Guideline for Doctors: (Medical Board of Australia, 12 December 2018 ("Sexual Boundary Guidelines"); and (b) Principles 2.1, 2.3, 9.1, 9.2 and 10.1 of the Code of Ethics (The Royal Australia and New Zealand College of Psychiatrists, 2018. 4. Between July 2020 and December 2020, the practitioner failed to observe appropriate professional boundaries with Patient 1, in that the practitioner; (a) Inappropriately engaged in telephone contact with Patient A; (b) Used aliases when she contacted Patient A on the phone in an attempt to avoid identification by [name of government agency deleted]; (c) Prepared a written submission for Patient a which was provided by Patient A to the Mental Health Tribunal to support Patient A's unconditional release.
The Commission did not rely on the asserted failure to comply with Principles 9.1 and 9.2 of the Code of Ethics.
The Respondent admitted particulars 1 and 2 of this complaint and particular 3(b) only in respect of admitting a failure to comply with Principle 2.3 of the Code of Ethics.
The Sexual Boundaries Guidelines for Doctors ("the Guidelines") were formulated by the Medical Board of Australia and relevantly at section 5 states: It may be unethical and unprofessional for a doctor to engage in a sexual relationship with a former patient if this breaches the trust the patient placed in the doctor. Doctors should recognise the influence they have had on patients and that a power imbalance could continue long after the professional relationship has ended. A doctor should consider carefully whether they could be exploiting the trust, knowledge and dependence that developed during the doctor-patient relationship before they decide whether to pursue or engage in a relationship with a former patient. When deciding whether a doctor used the doctor-patient relationship to engage in a sexual relationship with a former patient, the Board will consider a range of factors including. • the duration, frequency and type of care provided by the doctor; for example, if they had provided long-term emotional or psychological treatment; • the degree of vulnerability of the patient; • the extent of the patient's dependence in the doctor-patient relationship; • the time elapsed since the end of the professional relationship; • the manner in which, and reason why, the professional relationship ended or was terminated; • the context in which the sexual relationship started.
Principle 2 in the Code of Ethics of the Royal Australian and New Zealand College of Psychiatrists ("the Code"), relevant to this matter contains the following: 2.1 Psychiatrists shall not exploit patients physically, sexually, emotionally or financially. …. 2.3 Sexual relationships between psychiatrists and their current and former patients are always unethical.
Principle 10 states: 10.1 Psychiatrists shall maintain appropriate ethical standards both in their professional and personal lives.
As we have said, the Respondent does not admit she breached the Guidelines at all nor Principles 2.1 or 10.1 of the Code.

Particular 1 and Particular 2

The Respondent admits that she engaged in an inappropriate sexual relationship with the patient over three days. The Respondent further admits that she continued an inappropriate personal relationship with the patient via telephone for a period of six weeks. The Tribunal is satisfied that these particulars are established.

Particular 3

The Respondent accepted that her conduct was a breach of Principle 2.3 of the Code of Ethics and accepts that, according to the Code, her relationship with the patient could never be sanctioned.
However, the Respondent denied that her admitted conduct breached the Guidelines nor did her conduct breach Principle 2.1 or 10.1 of the Code.
Turning then to the Guidelines, the Respondent maintained that the wording of the Guidelines creates a "grey area" in that there "may" be a sexual relationship between a psychiatrist and an ex-patient which is not unethical provided, as she saw it "…it does not involve a breach of trust."
It was argued for the Respondent that she did not regard her sexual relationship with the patient to be unethical while she was engaging in it.
In order to be registered as a psychiatrist in Australia, the Respondent was required to re-train and to repeat the psychiatry examinations. Further she is a Fellow of the Australian and New Zealand College of Psychiatrists, the body which produced the Code of Ethics which in absolute terms says that a sexual relationship with an ex-patient is unethical. The Respondent contended that she believed that the Medical Board Guidelines applied to her. She did not explain why she did not consider the Code, that written by the psychiatrist's professional body for psychiatrists to be the standard with which she ought to comply. She said that in reading the Code she "missed one line" and thus did not understand that her conduct was in breach of the Code.
It is to be observed that the Code was prepared by the body governing the Respondent's practice as a psychiatrist and which was clearly created for the guidance of psychiatrists whereas the Medical Board Guidelines are intended for a wider medical audience.
There was no suggestion in the evidence that the Respondent considered the Medical Board Guidelines (or indeed the Code) before embarking on the sexual relationship with the patient. The Respondent's evidence was that the first sexual encounter was spontaneous. She was asked about the Medical Board Guidelines: When you agreed to meet with Patient A did you consider…this document? On a conscious level, no, but it is embedded in your ethical approach to a patient, these principles. … not obviously with regard to whether I was going to have a sexual relationship because that was not anticipated…
She was then asked whether after the first sexual encounter she looked up the Medical Board guidelines on sexual boundaries to which the Respondent said: "No. As I say I have an awareness of what they said".
Two experts gave evidence in the hearing, Dr Martyn Patfield for the Commission and Dr Christopher Ryan who gave evidence at the Respondent's request. While they agreed that there may be a "grey area" in relation to a sexual relationship between a psychiatrist and an ex-patient which might not be regarded as unethical, both agreed that the relationship conducted by the Respondent with Patient A did not come within that area. Both said that her conduct in conducting the sexual relationship and thereafter in the telephone contact with the patient, was unethical. Dr Patfield regarded it as a severe transgression. Dr Ryan characterised the Respondent's conduct as a clear and serious breach and a very unethical sexual relationship.
The submissions for the Respondent were focussed in large part on her perception of the relationship and her contention that she did not consider the relationship to be unethical at the time. Whether the Respondent considered the sexual relationship to be unethical or not may be relevant in assessing her conduct, it is not the only criterion by which her conduct is to be judged. The Tribunal must assess whether objectively the relationship between the Respondent and the patient was unethical and/or exploitative.

Was the sexual relationship and the following intimate relationship in breach of the Guideline and Principle 2.3 of the Code?

As we have said, the Respondent admitted that her conduct was in breach of Principle 2.3 of the Code.
Whether regard is had to the Code or the Guidelines, the overwhelming evidence before the Tribunal is that the Respondent's conduct in having a sexual and later romantic or intimate relationship with the patient was unethical and we are comfortably satisfied that it was.
In determining whether the Respondent's conduct breached the Guidelines, it is useful to start with the criteria contained within section 5. Dr Ryan agreed that these are not exhaustive of the matters to be taken into account when considering whether a sexual relationship with an ex-patient may be unethical nor should they be mechanically applied like some sort of checklist. However they are useful touchstones to a consideration of the nature and effect of the Respondent's admitted conduct.

Power imbalance

The experts agreed that during the psychiatrist-patient relationship, the power imbalance between the Respondent and the patient was stark. To what degree that differential continued after the end of the therapeutic relationship was debated. Dr Ryan said it could not be assumed that the power imbalance would flow into the post therapeutic relationship. Dr Patfield said that after the end of the professional relationship, it appeared that the patient regarded the Respondent as holding power, for example, he asked her to find and fund a barrister to represent him and he asked her for help in preparing a submission to the Mental Health Review Tribunal to seek unconditional release.

Vulnerability and dependence

The overwhelming evidence was that the patient was vulnerable and dependent on the Respondent.
Dr Ryan said that Patient A had a severe personality disorder and that patients with a history like Patient A are; "well known to be prone to impulsivity and to become involved in relationships that may be inappropriately sexualised." Dr Ryan said that the patient's vulnerabilities predisposed him to having an abnormal attachment to his treating clinician, which, he agreed was demonstrated in the letter found in the patient's cell in October 2019.
As to the patient's dependency on the Respondent, the letter written by the patient and found in his cell persuaded Dr Ryan that during the therapeutic relationship, the patient was very dependent on the Respondent. He observed that during the therapeutic relationship that the Respondent and the treating team were advocating for the patient's conditional release, a cause that was stymied by the Clinical Director and which, the Respondent said, precipitated a serious suicide attempt by the patient. When the Respondent withdrew from the patient's direct care in about July 2017, she said that the patient's mental health deteriorated to the point where he then spent the next two years in the acute ward of the hospital.
The nature of psychiatric therapy was said to be more intense and more likely to engender dependency.
The Respondent argued that her therapeutic relationship with the patient was of short duration and during those periods she did not offer him "long term emotional or psychological treatment", a proposition with which Dr Ryan disagreed even though in the second tranche of the Respondent's therapeutic relationship with the patient, his care was shared with another psychiatrist. What constitutes "long term" therapy was not explored other than Dr Ryan expressing the view that minds might differ as to what constitutes "long term". The salient point however is the nature, intensity and the effect of the therapeutic relationship on the patient.
The Respondent argued that to her, the patient, having a personality disorder, high in psychopathic traits, did not appear to be particularly vulnerable or dependent on her. She said in relation to the letter found in the patient's cell that it is not unusual for patients with a past history like Patient A, to form abnormal attachments to treating clinicians. However, she told her treating psychologist, Ms Kalra that Patient A had formed an abnormal attachment and had idealised transference towards her and possibly erotic transference.
The Tribunal accepts that the patient's vulnerabilities predisposed him to forming abnormal attachments and here, there is evidence that he had formed an inappropriate attachment to the Respondent and that there was evidence of idealised transference and possibly erotic transference. The evidence persuades the Tribunal that the patient was vulnerable to the formation of an inappropriate relationship with the Respondent and was dependent on her.

When the relationship commenced

The Respondent ceased her employment with the forensic facility in December 2019, and while she was not then directly caring for the patient she was on the staff of the hospital until her resignation in February 2020. It could be argued that the time between the end of the therapeutic relationship and the commencement of the sexual relationship was then three months. The Respondent argued it was five months, taken from the date she ceased to have input into the patient's care. Little turns on the difference. The sexual relationship between the Respondent and the patient commenced within days of his being released from the prison hospital.
The time between the end of the therapeutic relationship and the commencement of the sexual/intimate relationship is relevant to the patient's dependency on the therapist and the existence of the power differential. Dr Ryan was of the view that the dependency was unlikely to fade or dissipate within months of the conclusion of the relationship. As to the power imbalance Dr Ryan said that some of it was associated with the structure of the patient's incarceration and the Respondent's position in it. Once the Respondent was no longer within the prison system he thought part of the power imbalance would have changed significantly. Dr Patfield said that while she was no longer within the forensic facility system and not in a position of having an input into his conditional release, nevertheless it appears that the patient perceived her as wealthy and powerful, citing his request to her that she find and pay for a barrister to represent him and asking for her help in preparing a document for the Mental Health Review Tribunal to support his unconditional release.
When the Respondent left work within the forensic facility, her ability to actively advocate for the patient's unconditional release stopped. There is considerable force in Dr Patfield's opinion that the patient believed the Respondent could nonetheless help him in various ways even though no longer on staff at the hospital. While the power imbalance between the Respondent and the patient may have changed, the Tribunal concludes that from the patient's perspective, the Respondent retained power to help him.
At most, some five months elapsed between the Respondent ceasing care of the patient and the sexual relationship commencing almost immediately on the patient being conditionally released to a rehabilitation facility in the community. While the sexual relationship was conducted over three days, the romantic relationship through telephone calls persisted for some six weeks coinciding with the patient's conditional release being revoked and him being returned to a mental health facility. The telephone contact resumed in July 2020 and continued until December 2020 when the patient was returned to custody.
This period is such that it could not be safely accepted that the power imbalance had dissipated completely and there was no suggestion that the patient's dependence on the Respondent had reduced.

Harm to the patient

The Respondent's submissions criticised the evidence of Dr Patfield on this point, observing that his view that the relationship would "likely" have caused the patient harm was speculative and should be afforded little weight. It was said that since there was no evidence from Patient A, there was no evidence of actual harm. We reject the argument that Dr Patfield's evidence should attract little weight, a topic to which we will return.
Had there been evidence of actual harm to Patient A, it may well have made the gravity of the Respondent's relationship with the patient greater. As it is, the overwhelming expert evidence is that such relationships are redolent of potential harm to the patient, harms to which Dr Ryan referred.
Dr Patfield said, in response to a question as to whether there may have been some positive outcomes for the patient from the relationship: … anything's possible. But the ‑ the broad and strong consensus is that these relationships are damaging, so we can imagine all sorts of things and ‑ and ‑ but my agreeing with you that it's speculation that could have been damaging, I mean speculation is ‑ doesn't reflect, I think, the strength of opinion against these relationships. I mean, because ‑ because people have seen time and time again how damaging it is, so I ‑ the fact that ‑ that it can't be demonstrated in a ‑ in a very clear, tangible sense that you might have an engineering proof, doesn't ‑ I don't think should dissuade us from recognising it was a damaging relationship.
Dr Ryan agreed with Dr Patfield's view that the Respondent's entering into the relationship with the patient "showed a disregard for the potential harm to the patient".
Indeed, the Respondent herself identified that range of potential harm that may have occurred to the patient through her relationship with him saying (statement 10 February 2021): I am entirely cognisant of the negative impact my relationship will have had on [Patient A]. I consider that I will have likely activated in him feelings of abandonment and isolation, self-blame, depression, anger, guilty and confusion. I have likely reaffirmed his longstanding mistrust of mental health professionals. I failed to recognise in my attempts to support him, the existing power imbalance in the relationship and his development of a level of dependency on me.
Dr Ryan was asked to comment on this assessment by the Respondent of the potential for harm to the patient from the relationship and said: I mean that's certainly the way that [the Respondent] saw it, and [the Respondent] knows Patient A better that I do so I'd put quite a lot of weight on that. I mean, there were lots of individual elements in the thing - in what you just read out to me and I'm sure that I can endorse every element. But it's not great, there's nothing good about this.
The Respondent's view of the harm to the patient we have just set out was in some contrast to her evidence before the Tribunal. When asked whether her relationship with the patient would have caused the patient harm and the Respondent said that when she commenced the sexual relationship with the patient, she believed that his pathology was not as intense or destructive as it had been earlier and that he had sufficiently improved in his pathology to be conditionally released and so it was appropriate to commence a relationship with him.
Dr Ryan did not agree the patient had improved sufficiently over the time since the end of the therapeutic relationship for a relationship to take place and said that the Respondents' view that it had, was not justified.
There were other instances in which the Respondent's evidence was markedly different from her statements made earlier in the proceedings and in her evidence before the s 150 Hearing. We do not consider that this reflects on her credibility but rather, as her counsel eloquently put it, she had "convinced herself" that the conduct of the relationship was not unethical and not potentially harmful.
The Respondent was asked: PROFESSIONAL MEMBER O'BRIEN Can I suggest that by engaging in that relationship, for a person who has such a severe personality disorder, you actually damaged him by repeating the pattern of attachment, thereby you can no longer tolerate his (indistinct), that you had the same kind of relationship as he had, and what's so bad about it is that you were someone who should have known that and could have predicted it, and experienced it throughout the relationship. RESPONDENT: I confess to a level of naivety, we have discussed with my psychologist at length, whether there was any level of rescue fantasy and I think that inevitably, on some subconscious level, there was given the interplay that I had seen him so mistreated but at - PROFESSIONAL MEMBER O'BRIEN: Even though you were not - have intentionally set out to harm him, quite the contrary. RESPONDENT: Quite the contrary. PROFESSIONAL MEMBER O'BRIEN: I would put it to you that the relationship did harm. RESPONDENT: Yes, and I think that I would agree that I believed that because I had an awareness of his pathology, I could contain it and still maintain a reasonably healthy relationship, and ultimately, I was - PROFESSIONAL MEMBER O'BRIEN: What are you basing that on? RESPONDENT: Because 90 per cent of the time, not reflected in these, he was a reasonable and decent person and those blips - I thought if he had a pro-social person around him who accepted and explained to him, you know, "This is not a reasonable way to go on -" PROFESSIONAL MEMBER O'BRIEN: (crosstalk) blurrings, isn't it, between personal relationship and therapy relationship (indistinct) going to tell what you feel to be appropriate but (indistinct). RESPONDENT: But I think every girlfriend does that with every boyfriend. Yes, I take your point, that it's exacerbated but certainly, I think you have the idea that you mould one another into an acceptable way of treating one another and I had the fantasy that he was amenable to that and that was my mistake. (crosstalk). Yes. And that's my naivety. PROFESSIONAL MEMBER O'BRIEN: How can you explain - naiveties is one explanation, but how do you make sense of the fact that you as a doctor, fully knowledgeable of the long-standing pathology of someone with personality disorder, five months after your last contact with him, can believe that you can therapeutically make such a difference that his psychopathology will be contained? RESPONDENT: Because his psychopathology had largely been contained and that's why he was released. PROFESSIONAL MEMBER O'BRIEN: And look what happened when he got released, he couldn't be contained in that environment, he went into a situation where he was accused of assault, he was then assaulted in the jail. Again, very unstable and poor regulation of his (indistinct) that lead to his impulsive behaviours. RESPONDENT: I regret it.

Telephone conversations between 10 July and 31 December 2020

While the patient was in prison, he and the Respondent spoke frequently on the telephone. The calls were recorded as is usual in that context. Transcripts of the calls were provided to both experts.
Dr Patfield said the content of the calls showed a tempestuous, sexualised relationship. Dr Ryan agreed that the conversations reveal emotional intensity and intimacy.
The Respondent argued that the conversations may have had a benefit for the patient in encouraging him to engage socially and live without violence. Dr Ryan however was taken to calls in which the Respondent criticises the patient because of his behaviour and asked for his comment. Dr Ryan said of the transcripts: [The Respondent] frequently tells Patient A that, in her opinion, he's not good, you know, in a variety of ways. But, particularly because of the relationship that he apparently - although I think he disputes this, but that she feels that he had, immediately after the relationship with her. PROFESIONAL MEMBER O'BRIEN: Do you think then that the content of that relationship instead of ameliorating his psychopathology could have further entrenched it and made him less amenable to therapeutic engagement thereafter? DR RYAN: Well, I certainly don't think it would have ameliorated it in any way, I think it's less clear that it would have further entrenched it, the - this sort of psychopathology is very long-standing, and I don't know that its necessarily further entrenched significantly by those sorts of interactions. Again, that's not to say that I think that that was - you know, all of this is happening unethically and inappropriately, so none of it's good. But is he going to being significantly further harmed, he definitely could have been, but I don't know that he was.

The Respondent's emotional needs

There can be little doubt that at the time the Respondent was treating the patient, the circumstances for her within her workplace were highly charged and emotionally draining. She said that she felt isolated and unable to talk to her colleagues for fear of there being further spurious complaints about her.
She said in a statement of September 2021, para 9.5 and reflecting on that time that her insight was clouded and she failed to step back. Her marriage had broken down and she was depressed. She said "[the patient] made me feel cared for and valued and our relationship provided him with similar supportive feelings. In a later statement dated September 2022, at page 58, the Respondent said: Sex was not the primary component of the personal relationship which developed between me and [the patient]. We developed an emotional connection because we had a shared trauma history of mistreatment at [the forensic facility]….
Both Dr Ryan and Dr Patfield considered that the relationship between the Respondent and the patient was "ultimately in the service of [the Respondent's] own emotional needs related to her loneliness and vulnerability at the time".

Challenge to Dr Patfield's evidence

In written submissions on behalf of the Respondent it was argued that in some aspects, Dr Patfield's evidence should be afforded limited weight. The submission cites a number of bases which, it was said, support this conclusion.
First, it was said that Dr Ryan commented that Dr Patfield's characterisation of the Respondent's view of her role in the patient's management as "being rather egocentric" was "unreasonably jaundiced".
Dr Patfield was asked about his view that the Respondent was being "rather egocentric" and said he was not commenting on the Respondent's emotional state but was reflecting on how she saw the patient's predicament while in a forensic hospital, that she believed he had been treated unfairly and that she felt a personal responsibility for him.
It was not suggested to Dr Patfield that the basis on which he came to that view was wrong. It was not suggested to him that his opinion was "jaundiced" or unfair to the Respondent.
Importantly, Dr Patfield's explanation for his use of the word "egocentric" was never put to Dr Ryan to see whether this caused him to reconsider his "jaundiced" label.
In any event, the submission does not say why this view of Dr Ryan would lead the Tribunal to lend less weight to Dr Patfield's opinion than it might otherwise and we reject the submission.
Next it was said that Dr Patfield was not a forensic psychiatrist and "… in forming opinions he was required to make assumptions about the nature of their relationship which he was not privy to."
As to the first part of this submission, it was not suggested to Dr Patfield that because he was not then practising as a forensic psychiatrist, he was not able to express opinions on the Respondent's conduct or there was an aspect of forensic psychiatry that was beyond his expertise.
As to whether this disentitled him to make "assumptions about a relationship to which he was not privy" this was not explained.
Next, it was asserted that because Dr Patfield had admittedly not read the Respondent's statements "as carefully as he would have wished to have done" and had not read "all of the telephone transcripts… but only a portion of them", his opinion of the likely harm that might have accrued to the patient should be given limited weight.
Again, this submission is difficult to understand. It wrongly asserts that Dr Patfield had only read a "small number" of the recorded phone conversations, a submission not supported anywhere in the evidence. It was not explained how his opinion on the "likely harm" that may have accrued to the patient would be impacted by the number of the telephone calls he read.
Dr Patfield's evidence was that relationships between psychiatrists and ex-patients are regarded as damaging. It was not suggested to him that he was incorrect. Indeed, the Respondent outlined in detail the likely harms that can accrue to a patient through a sexual relationship such as this.
Again, as with the earlier points on which this submission is based, there was no explanation or rationale as to why the conclusion contended for flowed from these bald assertions.
The submission turned to Dr Patfield's characterisation of the relationship between the Respondent and the patient as demonstrated in the telephone calls. It was submitted: Dr Patfield gave evidence that: "It seemed to be a very sexualised relationship. Very stormy, tempestuous, highly emotional" and that Patient A would have considered that the Respondent had "enormous wealth". He gave evidence that: "I think it's very likely that [Patient A] still thought she had significant influence, and imagine, perhaps fancifully, that she might be able to have a significant [ongoing] role in determining his liberty." Such opinions are speculative and not based upon fact.
The opinions were not speculative, as Dr Patfield's evidence made clear. When questioned, he provided the basis for his conclusions as to why he believed the patient might regard the Respondent as being significantly wealthy and why she might be able to assist him in obtaining his liberty. The basis for all of those conclusions were in the evidence before the Tribunal. We reject the suggestion that they were speculative or not founded in the evidence. Had they been, no doubt, counsel for the Respondent would have put it to Dr Patfield and she did not. There is no doubt that the Respondent did not accept Dr Patfield's conclusions, but that does not render them speculative or of reduced weight.
We do not accept the submission as to the weight to be attributed to Dr Patfield's evidence.
The submissions under this heading then segue to an acceptance of Dr Patfield's opinions in other areas, in particular on points which, the Respondent argued, amounted to mitigation of the gravity of her conduct.

Mitigating factors

The Respondent argued that there were matters which reduced the seriousness of her conduct. It was submitted that Dr Patfield agreed that the fact that the patient did not have a mental illness but rather a personality disorder was one such matter.
The context in which Dr Patfield was asked these questions was about the patient's capacity to consent to the sexual relationship. The Respondent had stated that the "connection established in the treating relationship did not reach any level of intensity which materially deprived either of us the capacity to choose whether to engage in a personal relationship that is entered through mutual consent." Dr Patfield did not agree with the statement about the intensity of the therapeutic relationship with the patient and said: I think it's clear that there was a high degree of intensity, but perhaps not so high that either was denied capacity to choose, which I think is an extraordinary degree to which someone would be affected by emotions, not to be able to choose.
He was asked whether it would be more serious to have a relationship with someone who was mentally unwell as opposed to someone who was "clever and had a capacity to reason and was in control of their faculties" to which he said: I think you could argue it either way, actually, because you could say, well, the person that was psychotic at the time, if you met them later and the they were no longer psychotic, they were free of those disabilities that they had and, therefore, it might be more acceptable in a way, but I mean, the thing about saying that the patient's not mentally ill, as such, not ‑ not psychotic, to put it simply, the sorts of troubles that they're having are commonly thought to be about relationships; and so, in a way, it's more serious, the infraction, with someone who is not mentally ill because who should be on the guard, because it's a personality disorder, which is what we're talking about here. It's always about problems in relationships.
We do not accept that his evidence when properly considered shows that Dr Patfield made that asserted concession.
Nor do we accept that the fact that the patient was capable of choosing to enter into the relationship is a mitigating factor.
Also said to mitigate the gravity of the Respondent's actions was the spontaneous nature of the sexual encounter, that it was initiated by the patient and it was the patient who first obtained the Respondent's telephone number to seek her out. It was suggested to Dr Patfield that in that context, the Respondent's conduct was not a "deliberate" flouting of the professional guidelines. Dr Patfield agreed that there was no suggestion that the Respondent planned the relationship while in a professional relationship, which he said would increase the seriousness of the conduct.
Dr Patfield was taken to the Respondent's statement where she said that the patient initiated the contact which she did not seek and actively tried to discourage. Dr Patfield agreed that it was mitigating that the Respondent had attempted to put physical distance between her and the patient and that he sought her out. However he said: …she had choices … he called her, there was an arrangement to meet, she chose to follow through with that arrangement and arranged to meet him on another couple of nights, so I mean they were deliberate choices.
The effect of Dr Patfield's evidence was, in the view of the Tribunal, not that these matters mitigate the seriousness of the Respondent's actions, but their reverse would have made matters much worse.
It was argued that Dr Patfield agreed that there may be some benefits to the patient in the relationship and when asked whether they would be "significant benefits" said that he did not know enough about the patient and did not know what went on in the relationship.
In fact the question was: Do you accept that there were, in fact, some significant benefits for [Patient A] in a prosocial relationship with [the Respondent]? I don't know enough about the patient. I ‑ I ‑ it's a ‑ it's a big call to say it's a prosocial relationship. I'm sure she's a very nice person but doesn't necessarily make it a prosocial relationship. I ‑ I don't know enough about it.
He did agree that the Respondent urging the patient to live a life without violence "quite possibly would have benefitted [the patient]". In the Tribunal's view, this concession falls far short of the suggestion that Dr Patfield agreed that there may be some significant benefits to the patient in the relationship.
Later, the following exchange occurred between counsel for the Respondent and Dr Patfield: And it's possible, isn't it, that there were, in fact, some positive outcomes for him from the relationship, which we don't know about? DR PATFIELD: Anything's possible. MS DWYER: But I don't mean that to sound to glib when I'm asking you. It's if you were hypothesising or speculating, you might also imagine that there was some positive aspects of being in a relationship with somebody who, like [the Respondent], who was kindly and who advised him against violence in the way that I've - DR PATFIELD: Look, I mean, anything's possible. But … the broad and strong consensus is that these relationships are damaging, so we can imagine all sorts of things and and but my agreeing with you that it's speculation that could have been damaging, I mean speculation is doesn't reflect, I think, the strength of opinion against these relationships. I mean, because- because people have seen time and time again how damaging it is, so I the fact that that it can't be demonstrated in a in a very clear, tangible sense that you might have an engineering proof, doesn't I don't think should dissuade us from recognising it was a damaging relationship.
The expert opinion was overwhelmingly of the view that the Respondent's conduct in conducting the relationship with the patient, being the sexual relationship while he was conditionally released, followed by six weeks of romantic telephone calls, was unethical whether one had regard to the RANZCP Principle 2.3 or Paragraph 5 of the Medical Board Guidelines.
The Tribunal accepts Dr Patfield's evidence (with which Dr Ryan agreed) that the conduct was a stark transgression of boundaries and showed a disregard for the potential harm for the patient and was "ultimately in the service of indulging [the Respondent's] emotional needs".
Dr Ryan agreed with Dr Patfield's description of the Respondent's conduct as a severe boundary transgression.

Did the Respondent's conduct exploit the patient?

Paragraph 5 of the Guideline and principle 2.1 of the Code speak of a doctor "using" the doctor-patient relationship or "exploiting" the patient.
Section 2.1 of the Code of Ethics says: Psychiatrists shall not exploit patients … sexually, emotionally.
Section 5 of the Guideline on this point is: A doctor should consider carefully whether they could be exploiting the trust, knowledge and dependence developed during the doctor-patient relationship.
What then is conduct which exploits or uses a patient?
Dr Ryan formulated it in this way, drawing on a study by S Ost & H Biggs "Exploitation, Ethics and Law: Violating the Ethos of the Doctor-Patient Relationship, London: Routledge, 2021:

When the doctor takes advantage of the patient, that is uses something inherently connected with the patient;
When the doctor misuses a patient, that is fails to respect the patient as a person; and
Does so for one's own ends; behaves as she does for her own benefit.

Both Dr Ryan and Dr Patfield adopted these three considerations when considering whether the Respondent's relationship with the patient was exploitative of him.
Once again, on this characterisation of the Respondent's conduct, the list of matters to be taken into account in the Medical Board Guidelines are helpful. The experts considered them in determining both whether the sexual relationship between the Respondent was unethical and whether it was exploitative.
Dr Patfield's opinion was that the Respondent had exploited the patient in conducting the sexual relationship with him. He said: Now, I think that she did take advantage of something inherently connected to the patient, his psychopathology, where he's a very damaged, needy, impulsive man who was very likely to easily get involved in a - in a damaging relationship. The second thing they speak of is - is failing to respect a patient as a person and I really find it hard to understand how, knowing what she knew about this patient and what might be in his best interests, how getting into that relationship could have been seen as being respectful of him as a person. The third thing that Austin Biggs (sic) talks about is the - is a doctor getting something out of the relationship and it was Dr Ryan that, you know, I think he agrees with this and I - I think I'd made the comment that it was - the relationship seemed to be about emotional gratification and I think Dr Ryan used the phrase that he felt that he could only believe that she was seeking emotional sucker (sic). So, in that sense, she was getting something out of it.
It was suggested to Dr Patfield that there was no "actual evidence" that the Respondent exploited the patient. He said: I think you're asking for hard, transparent, undeniable, black‑and‑white evidence that - that she used [Patient A]. I think it's very hard to think in those terms when we're dealing with human relations which are so often intangible, difficult to pin down, but I think we need to try. And I - and I've already explained why I think it is reasonable to say that she used him, and exploited him.
Dr Patfield agreed that it is not unusual for parties to a relationship to seek emotional succour from each other. Why then it is exploitative in a relationship between a psychiatrist and ex-patient was described by him: Because of the dangers that that represents. I mean, of course, there's nothing abnormal, unusual about her seeking a relationship and seeking emotional succour from it, but she - one would have expected a person in her position to restrain - restrain her behaviour seeking out those - the satisfaction of those needs because of the potential harm that it could cause this particular person, because of who he was and because of the dangers it represented to him and to her.
When it was suggested to him that the Respondent did not use her position as a psychiatrist to gain something emotional from the patient, he said: Not - not in a - a calculated and deliberate way but she couldn't help being who she was and he couldn't help being who he was, and she should have - I think my position is that she should have known better in her - with her position, to have known better than to become involved with him, and I think she accepts that herself.
Again, it was suggested that there was no evidence that she used any knowledge of the patient and deliberately exploited her position as a former treating psychiatrist, Dr Patfield said: I don't think that she could choose to unknow what she knew. She knew who he was. She had extensive knowledge from her training about the sort of vulnerabilities he had. She couldn't help but know - help but use that knowledge.
Dr Patfield said that a psychiatrist indulging in a sexual relationship with a former patient is not treating the patient with respect, adding that it was particularly so where, as here, the Respondent is a forensic psychiatrist and has had particular experience of the damaged lives the patients have.
Dr Patfield said that in engaging in the sexual relationship with the patient, the Respondent "showed disregard for the potential harm to the patient". There is no doubt that the Respondent in her statement of 10 February 2021 was well aware of the nature of potential harm that may have accrued to the patient. Dr Ryan said "… I am not saying that [the Respondent] is insensitive to any harm that she may have caused. Rather, it seems, that in the heat of passion, it is likely that she temporarily disregarded any potential harm to Patient A."
While the experts disagreed on whether the Respondent "used" the patient in engaging in a sexual relationship with him, there was little dispute between them on the underlying facts and their application to the considerations noted in Guideline 5.
It was argued for the Respondent that there was no "actual" evidence that the Respondent used the patient in the sense being discussed, for example, it was argued that there was no "evidence" that she used her knowledge in pursuit of the relationship. Certainly the Respondent denied she exploited the patient. Dr Ryan concluded that there was "no evidence" that the Respondent had taken advantage of the patient.
However, that is not the end of the consideration of whether the circumstances of the relationship between the patient and the Respondent admit of a reasonable conclusion that the relationship was exploitative of the patient.
Having considered the evidence as a whole and taking into account the considerations set out in Guideline 5 and the calculus adopted by the experts, we are comfortably satisfied that a reasonable conclusion flowing from that evidence is that the Respondent, in engaging in a sexual relationship with the patient exploited the "… trust knowledge and dependence that developed during the doctor-patient relationship…".
It follows, as it must, that our satisfaction that the Respondent failed to comply with the Medical Board Guidelines and Principles 2.1 and 2.3 of the RANZCP Code of Ethics, that we are satisfied that she also breached Principle 10.1 of the Code which states that "Psychiatrists shall maintain appropriate ethical standards both in their professional and personal lives". In coming to this conclusion, we note that Dr Ryan referred to her conduct in having the sexual relationship with the patient as inexcusable. Both Dr Patfield and Dr Ryan said that her conduct was unethical.

Particular 4

Here it is alleged that between July 2020 and December 2020, the practitioner failed to observe professional boundaries with Patient A in that the practitioner: 1. Inappropriately engaged in telephone contact with Patient A; 2. Used aliases when she contacted Patient A on the phone in an attempt to avoid identification by [name of government agency deleted]; 3. Prepared a written submission for Patient A which was provided by Patient A to the Mental Health Tribunal (sic) to support Patient A's unconditional release.
The Respondent admitted sub-particular (a).
After the patient was returned to custody, the Respondent and the patient spoke frequently on the telephone. The calls in this period all emanated from the patient because he was then in custody.
It is in this context that sub-particulars (b) and (c) arise.
The transcripts of the telephone calls demonstrate that Patient A referred to the Respondent as "[name deleted]" a pseudonym to which she answers. At one point (l on 6 August 2020) the Respondent referred to herself in the third person.
That the Respondent acquiesced to the patient's use of a pseudonym for her is undoubted. It is also undoubted that the Respondent was anxious in the conversations that her identity in the relationship between the two of them not become apparent. The Respondent understood that the telephone calls were recorded although not listened to at the time of their being made. She said that she acquiesced to the use of a different name because she was concerned that her relationship with the patient did not come to the attention of the forensic facility. Given the evidence before the Tribunal of the history of complaints being made about the Respondent, that is understandable.
However, we are comfortably satisfied that in the conversations, the Respondent acceded to the Patient's use of an alias for her and that the purpose of that was, as she said not to bring their relationship to notice. We find this sub-particular made out.
Sub-particular (c) asserts that the Respondent prepared a submission to the Mental Health Review Tribunal for the patient. The Respondent contended that she helped him prepare it but did not write it.
The patient had been assaulted in custody and was seriously injured. Commencing on 28 October 2020 the Respondent and patient discussed the assault and the extent of the patient's injuries and the patient's attempts to inform the Mental Health Tribunal that he was not getting proper treatment in his present circumstances to secure his unconditional release.
The Respondent discussed with the patient what he should say in the submission to the Tribunal. The next day in a call between them, the patient asked the Respondent to type a letter for him that day because he wanted to send it to the Tribunal. On 30 October 2020 the Respondent said to the patient: "let me read this letter, because I want to send it, okay". The Respondent then read a letter addressed: "Dear Mental Health Tribunal president". At one point the patient interrupted the narrative and asked the Respondent to put into the letter something about the assault, she says "hold on…its coming." The patient asked the Respondent to remove a sentence about him having a broken jaw because it was an existing injury and to take out a reference to broken bones because he said that they were suspected breaks. The call ended and was immediately recommenced with the Respondent reading from the letter she had written.
The Patient asked the Respondent whether she could send the letter to the NSW Ombudsman and she suggested that she copied the Ombudsman into the letter.
The patient asked the Respondent to send the letter to a person named "Calem" who seems to be a lawyer and the patient said: Email that to him, telling him on an additional little note for him is to say that we have sent that to the tribunal - I have send (sic) that to the tribunal already, all right, through my sister…through [name deleted]. … Then you've got to text [name deleted] and tell her that's what we've done okay?
The Respondent replied "Yes, okay, no worries". The Respondent then said to the patient: "They're going to ask you where you're getting legal help because the wording is legalised". The patient replied; "yeah because my sister has got fucken Aboriginal Legal Service fucking talking to me, okay?"
Finally, the patient asked the Respondent what she understands and she said: So, I've got to get it to the New South Wales Ombudsman, Calem, text Sandra and let her know that it's through the Aboriginal Legal Services, she has emailed it and you want to add that you're seeking footage to take legal action and that we're going to remove the thing about broken bones.
In her evidence, the Respondent agreed that the terms of the letter were such that the patient could not have written it himself and could not have articulated what was in the letter.
The Respondent was unable to say whether what she did was a breach of professional boundaries. She said: That's a difficult one to answer. It's not illegal, it's also not ideal. But it's not deceitful and it's not illegal. Is it unethical? Well ‑ I mean, now the framework I look at it at is the whole relationship was unethical, so is unethical.
Reasonable minds might well differ as to whether what the Respondent read out to the patient over the phone was a letter written by her or whether she was merely assisting him to write such a letter however, in the result, little turns on that. The Tribunal accepts that for the Respondent to assist the patient in this way was, as she said, unethical and we are satisfied that it was in breach of professional boundaries.
The Commission also asserts that the Respondent's conduct was improper or unethical in the practice of medicine.

Improper and unethical conduct

The assessment of whether a practitioner has engaged in improper or unethical conduct must be read in the context of s 139(B)(1) that is relating to the practice of the practitioner's profession. In Health Care Complaints Commission v Sare [2018] NSWCATOD 190, the Court considered the dictionary meaning of both improper and unethical. The Court accepted (at [31]) "improper" as bearing the meaning "not in accordance with propriety of behaviour…" and "unethical" as "contrary to moral precept, immoral …".
Here, the conduct could not be described as other than improper and unethical.
Thus the Tribunal is comfortably satisfied that the Commission has made out Complaint 1 and its supporting particulars and find that the Respondent' conduct amounts to unsatisfactory professional conduct under s 139B(1)(a) and (l) of the National Law.

Complaint 2

Here the Commission complains that the Respondent is guilty of professional misconduct under s 139E of the National Law in that she has: 1. Engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration, and/or 2. Engaged in more than one instance of unsatisfactory professional conduct, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify the suspension or cancellation of the practitioner's registration.
In Chen v Health Care Complaints Commission [2017] NSWCA 186, Basten JA (Leeming and Payne JJA agreeing) said at [19]: The term 'professional misconduct' does not have a specific meaning; it is merely a category of 'unsatisfactory professional conduct' which is sufficiently serious to justify suspension or cancellation… there is no category of unsatisfactory professional conduct which is not capable, depending on the circumstances, of giving rise to professional misconduct and hence engaging the power of either suspension or cancellation of registration. The only requirement is that it be "sufficiently serious" to justify such an order, a characterisation which must depend upon an evaluative judgment made by the Tribunal.
In Health Care Complaints Commission v Karalasingham [2007] NSWCA 267, the NSW Court of Appeal held at [67] that the definition of 'professional misconduct' is focused on the nature of the conduct, which must have the capacity to justify an order to suspend or cancel a practitioner's registration, whether or not such an order should be made in the particular circumstances.
In Pillai v Messiter (No 2) (1989) 16 NSWLR 197, Kirby P said at 200 that something more is required to satisfy the test for professional misconduct and: It includes a deliberate departure from accepted standards or such serious negligence as, although not deliberate, to portray indifference and an abuse of privileges which accompany registration as a medical practitioner.
A finding of professional misconduct clearly by its terms, speaks to serious conduct.
The overwhelming evidence before the Tribunal is that the Respondent's conduct in having a sexual relationship with the patient was a "stark transgression of boundaries". Whether it was prolonged is a matter of degree however the conduct was not limited to the sexual contact but was followed by the romance continuing through telephone calls and once the patient was reimprisoned, it can be seen that the conversations between them were intimate and tempestuous.
We accept the evidence of Dr Patfiled in particular that the Respondent's conduct showed disregard for the potential harm to the patient and served to meet her emotional needs.
In this regard we note the evidence of Dr Patfield that her transgression was 'severe" because; "…She was not only a psychiatrist, she's a forensic psychiatrist… one would have expected much more from someone in that position."
The Tribunal is satisfied that the Respondent' conduct was such that it falls squarely within the definition of professional misconduct and the Tribunal is comfortably satisfied that the Respondent is guilty of professional misconduct.

Complaint 3 - Impairment

By this complaint the Commission asserts that pursuant to s 144(d) of the National Law, the Respondent has an impairment as defined in s 5 of the National Law, being a physical or mental impairment, disability, condition or disorder (including substance abuse or dependence) that detrimentally affects or is likely to detrimentally affect a person's capacity to practise the profession.
The Commission particularised the complaint that the Respondent suffers from major depression and alcohol use disorder. In the background facts to the complaint, it asserts that she was admitted to a mental health facility on three occasions, 3 April 2021 and 27 June 2021 with suicidal ideation and on 13 April 2021 for stress.
The Respondent admits the admissions to a mental health facility and the reasons but does not admit that she suffers from depression and/ or alcohol use disorder. She disputes that she has an impairment.
On 10 February 2021, an urgent Hearing was convened pursuant to s 150 of the National Law in response to a complaint made to the Medical Council about the Respondent's relationship with the patient.
The Panel set out the Respondent's written submissions which relevantly said: The situation was … a culmination of dealing with life stressors which overwhelmed my capacity to cope, and which were predominantly driven by the workplace bullying. The workplace bullying commenced in 2017 and continuing up to the point where I terminated my employment with [the forensic facility] in January 2020. I felt vilified, undermined and devalued for a protracted period in the workplace. I developed a severe and intractable depression with suicidal ideation, and a brief problem with my alcohol intake. My marriage broke down and I ultimately lost access to my children due to geographical separation. At the point where I identified myself as vulnerable to boundary transgressions with [the patient] I felt unable to seek any clinical support from my organisation, due to fear of persecution.
The panel said in its written reasons under the heading: Is the practitioner posing a risk to the public health and safety due to impairment? While the delegates were not able to formally assess [the Respondent's] current mental health there is considerable evidence that she has been suffering from depression, anxiety and was self treating these symptoms with alcohol during the unfolding of her dysfunctional relationship with [Patient A]. These disturbances may have clouded her capacity to make appropriate decisions. There is also clearly a commitment on her part to take up psychiatric and psychological treatment to work through the reasons for her poor decision making and boundary transgression. Therefore some health conditions may be appropriate to ensure the development of [the Respondent's] insight to ensure that she is psychiatrically well and does not repeat her mistakes.
In the result, the Panel imposed conditions restricting the Respondent's practice to non-clinical roles and that she practise under Category C supervision. Health Condition 11 required the Respondent to attend on a Council appointed psychiatrist on a six monthly basis. On 23 May 2022 the practice condition was amended to permit the Respondent to undertake roles in which she supervises or trains other practitioners and has indirect oversight of clinical cases.
In her written submissions to the s 150 Inquiry dated 10 February 2021, the Respondent also said: I realised a long time ago that my reasoning was deeply flawed. My reasoning was clouded after what I perceived to be protracted ill treatment of both me and the patient in the forensic setting and my resultant disillusionment with the forensic system and forensic care delivery.
Dr Murray Wright was appointed by the Medical Council to see the Respondent.
Dr Wright first saw the Respondent on 4 May 2021 and he noted that she said that around the time of the investigation of her conduct she was feeling depressed with suicidal thoughts and she was drinking too much. She began seeing Ms Purna Kalra a clinical psychologist who arranged for the Respondent to be admitted to a clinic in mid March 2021 under Dr Tanaghow.
Dr Wright's history taken from the Respondent recorded that she had had episodes of depression throughout her life; at 17 when her parents divorced, at 25 after the breakdown of a romantic relationship and one after each of the birth of her two children.
Dr Wright noted the Respondent as saying that she did not fully appreciate the unethical nature of her relationship with the patient and thought that it may have been partly because of her deteriorating mental health and because of a lack of understanding of boundary issues.
Dr Wright concluded that the Respondent was impaired and said that there may have been underlying personality vulnerabilities contributing to the development of a severe depressive illness and boundary breach.
Dr Wright continued to see the Respondent and maintained his opinion that she is impaired because she is vulnerable to recurrent depression at times of significant personal and professional stress and the risk of that recurrence adversely affecting her ability to practise.
Dr Wright prepared a report dated 20 September 2022 for the Tribunal hearing. He said that the Respondent's mental state had remained stable over the last occasions on which he saw her and noted no evidence of depression or anxiety. He said that she is well supported by her clinical psychologist in managing day to day stresses and preparing for future difficulties. She remains in contact with Dr Tanaghow.
Dr Wright said: In my opinion, [the Respondent's] past history of recurrent depression and associated Alcohol Use Disorder, which arose in the context of work related and relationship stresses, is in remission. … In my opinion, her condition of Major Depression and Alcohol Use Disorder (in remission) does constitute an impairment as per the National Law, and that it is appropriate for her to remain in the Impaired Program for now.
In his evidence to the Tribunal, Dr Wright said that while when he first saw the Respondent she did meet the criteria for a co-existent alcohol use disorder, that disorder fell away and his opinion as to her impairment rested on her depressive illness. Dr Wright said that the Respondent's treatment and management is aimed at managing and preventing recurrence of depression and in ensuring stability of her mood, it will substantially reduce any risk of recurrent alcohol use disorder.
The Tribunal had before it several reports from Dr Tahaghow.
In a report dated 13 July 2021, Dr Tanaghow details the Respondent's hospital admissions under his care on 3 April 2021, 13 April 2021 and 27 June 2021.
In relation to the admission on 3 April 2021, Dr Tanaghow noted that the Respondent was severely depressed with suicidal thoughts, she had poor sleep poor concentration and anxiety. She was discharged on 9 April 2021.
She was readmitted on 13 April because she said she became overwhelmed by stress and could not cope. She requested re-admission.
He said that the Respondent's admission in July 2021 was as a response to several telephone consultations he had with the Respondent during which she expressed suicidal thoughts.
In relation to these admissions, Dr Tanaghow said that the Respondent responded well to psychotherapy.
Dr Tanaghow said: In my opinion [the Respondent] suffers from symptoms of Major Depressive Disorder since she perceived pressure stress and bullying at work around 2019
In his opinion, the Respondent is not impaired.
Dr Wright maintained his opinion that the Respondent was impaired and said she met the definition of impaired because she has a condition that is likely to detrimentally affect her professional performance. While he agreed that the Respondent's depressive disorder was in remission, he said that a depressive disorder can recur and in the Respondent's case, the most important factor is past history.
He said: When I'm making that assessment in somebody who is suffering from a mental health condition, whether it's depression or some other condition, obviously if they are in remission I look to the potential risk for recurrence and whether that, if it were ‑ if it were to occur the likelihood then that it might impact on professional performance. And in ‑ depressive disorder can be a recurrent condition, and the way in which I formed that opinion in [the Respondent's] case is to look at a number of factors. The most important factor for me in making that assessment is past history, and in [the Respondent's] case the history that she gave me was of four previous episodes of depression, all of which occurred in the ‑ in a context of significant life stress. But previous episodes do give us a ‑ an indication of the risk of future episodes. Furthermore, there is a family history of depressive disorder, so family history is also a significant factor in making a judgment about whether there might be a risk of recurrence in the future.
Dr Wright further said that it was relevant that the depression came on because of stress and if the Respondent experiences unpredictable stress, she could again become depressed.
Dr Wright rejected the Respondent's contention that there was no connection between her inappropriate conduct and her depression and observed that she herself told him that she probably did not appreciate the unethical nature of the relationship partly because of her deteriorating mental health.
When asked about the Respondent's insight, he said it was a matter of degree and that the Respondent is "absolutely more aware of the professional boundary issues…and her own personal vulnerabilities to depression as a result". However, the Respondent's view that there was no connection between her depression and her mental state and impaired judgment at the time of the boundary transgressions, suggested to Dr Wright that the Respondent has an insufficient depth of understanding of the impact of depression on judgment, problem solving and decision making.
He did not agree with the Respondent that she needs no further engagement with a regulatory or medical council process.
Dr Wright was taken to Dr Tanaghow's report supporting the making of a non-disclosure order to ensure that the Respondent is not identified through these proceedings. In his report Dr Tanaghow said: In my opinion the publications of NCAT decision may result in increase probability of unmanageable risks on [the Respondent]. Her mental health may be seriously affected causing devastating results.
Dr Wright said that the concern expressed in the report that the Respondent might suffer a relapse in her mental health was an acknowledgment of her vulnerabilities to external stressors.
Although asked to distinguish between whether a relapse of the Respondent's major depression was "possible" but not "likely", Dr Wright said: I don't know what the distance is between "possible" and "likely", but there is in my opinion a significant risk given the ‑ the likelihood of first off professional stress and the very real risk of recurrence in that circumstance.
Although Dr Wright agreed that in the time between his last consultation with the Respondent and the Tribunal hearing, the Respondent had experienced personal and professional stresses, he did not agree that it suggests that further stress is unlikely to impact on her capacity to practise. He said: I know for sure that under certain kinds of professional and personal stressors she has experienced repeated episodes of depression. And least in the last one that episode of depression impacted her professional judgment. And that ‑ so those ‑ the ‑ the fact that she's been able to ‑ with the support of her psychiatrist and psychologist navigate some tricky times in the last 18 months is a good sign. But it doesn't necessarily tell me that it's not going to happen in the next 18 months.
Dr Wright said that a person can be in appropriate treatment and still have a relapse of depressive illness.
In short, in reiterating his position that the Respondent meets the definition of impairment according to s 5 of the National Law, Dr Wright said: So a period of non‑relapse is obviously crucially important, but I also give significant weight to a period of predictability, stability both in personal and professional life. And when ‑ when seeing someone who is part of the impairment program, who is suffering a condition which is in remission, one of the judgments that we make is that if that person is both well engaged, as [the Respondent] is, and has remained well for a considerable period of time, and [the Respondent] has been well for a period of time, and there is ‑ there are no significant current or immediately foreseeable stressors, then those all impact on the ‑ on that kind of judgment of whether or not they still satisfy those criteria as per the National Law.
Dr Tanaghow believes that the Respondent's risk of relapse was "very remote". He said she had "great" insight and has engaged with therapists and has support systems around her. He also said that even if she did relapse, it would not impair her capacity to practise because she will seek help.
Importantly, Dr Tanaghow did not believe that the major depression experienced by the Respondent caused or contributed to her boundary violation because he accepted the Respondent who said that she believed the relationship was allowed. He put the violation down to a misunderstanding of the ethical guidelines.
Dr Tahaghow said that the "unmanageable" risks to which he was referring in his report in support of the Non-Publication Order would not be a "normal relapse of illness". He agreed that the Respondent is at risk of relapse being triggered by external stresses but said it was "very unlikely".
It was submitted by the Respondent that the Tribunal would prefer Dr Tanaghow's opinion to that of Dr Wright, citing the hours he has spent with the Respondent in the course of their therapy.
We do not accept that submission. The amount of time spent with the Respondent does not operate to cause us to prefer Dr Tanaghow's opinion over that of Dr Wright.
When asked whether Dr Tanaghow's opinion should be given weight, Dr Wright said: I have been working with impaired practitioners for 27 years and have a significant experience both as a treating psychiatrist for health practitioners and giving evidence in regulatory processes. And I also sit on one of the committees for the Medical Council which reviews medical practitioners. I believe I've got an expertise in making what is ultimately a judgment, because we are talking about a kind of a risk of some future occurrence based on current and past issues. So I respectfully give significant weight to that experience that I've had in the past in trying to judge whether ‑ whether a person meets that ‑ that definition.

Was there a connection between the Respondent's major depressive illness and the boundary violation?

There can be no doubt that the Respondent had a major depressive illness and a past history of depression by her own account. A significant area of dispute was the effect, if any of her experiencing that depression and her boundary transgressions.
Dr Tanaghow was firmly of the view that the boundary violation was reflective not of impaired judgment but by the Respondent making a mistake about whether such a relationship was allowed.
However, the Respondent herself said that at this she was in the throes of a "severe and intractable" depression and her reasoning was "deeply flawed" and "clouded". Dr Wright recorded her as saying that she believed her being unaware of the unethical nature of the relationship may have been "partially because of her deteriorating mental health."
Ms Purna Kalra, a clinical psychologist with whom the Respondent was in therapy from January to September 2019, seeing her 18 times over that period. Ms Kalra believes that the Respondent's judgment was clouded at the time of the boundary violations and that her depressive illness played a part in that clouding of her judgment.
In a report of October 2021, Ms Kalra said that at the time of writing, the Respondent's "insight is no longer impaired around the ethics of Doctor Patient relationship".
Ms Kalra said that during their sessions in 2019, she and the Respondent discussed the Respondent's concern that she was in losing her objectivity and over identifying with the patient. Ms Kalra was surprised when she found out about the inappropriate relationship between the Respondent and the patient because she thought that the Respondent had developed a good degree of understanding through therapy.
The Respondent submitted that there was no evidence that the earlier depressive illnesses affected the Respondent's professional capacity and thus it could not be said in this event, that the depression was causative of the inappropriate behaviour but rather the boundary violations were precipitated by the workplace and emotional stress on the Respondent at the time.
We accept Dr Wright's evidence that the precipitating causes of the depression may have been the Respondent's workplace stress and the stress of her marriage breakdown. However, we do not accept that the Respondent's boundary transgressions were entirely unrelated to her then depressive illness or that the illness had no effect on her judgment. We are supported in that conclusion by Dr Wright's evidence of the strong association of depression on decision making, problem solving and judgment and by Ms Kalra's opinion.

Is there a risk that the Respondent might suffer a relapse of her depressive illness in the future?

Although Dr Tanghow said the risk of relapse was "very remote" he premised that conclusion on his understanding that the Respondent was engaged with therapy had benefitted from his therapy with her. While Dr Tanaghow acknowledged that the risk of relapse of depressive illness increases with the number of previous illnesses, he was not prepared to indicate to what degree that increase risk might be measured and said that, in any event, the Respondent's account of experiencing depression in her adolescence and young adulthood were, perhaps not really depressive illnesses.
We are unassisted by Dr Tahaghow's opinion in this regard and prefer the opinion of Dr Wright whose analysis of the risk factors of relapse was both careful and detailed.
We accept Dr Wright's opinion that there are factors in the Respondent's circumstances which reflect a risk of relapse, those including as we have already discussed, previous episodes and family history. We accept his evidence when it was suggested to him that relapse of the Respondent's depressive illness was not likely: … what I see as a strong pattern of recurrent depression in circumstances of personal and professional stress, and the occurrence of impaired judgment, professional judgment in the context of one of those episodes. And the ‑ the current issue, which is that there are professional and personal instabilities ongoing, and in spite of ‑ and in spite of I think good engagement and ongoing stability with treatment, I am uncomfortable with the idea of saying that it's not likely.
When asked by the Respondent's counsel about the risk of relapse, Dr Wright said the risk was "significant".

Would any relapse into depressive illness likely to detrimentally affect the Respondent's capacity to practise her profession?

Dr Tanaghow said that even if the Respondent's depressive illness did relapse, she would not become impaired because she has great insight and would seek out help.
There is no doubt that having engagement with therapists and ongoing treatment would assist the Respondent were her condition to relapse however we are mindful that notwithstanding considerable therapeutic involvement with Ms Kalra, the Respondent disengaged from therapy and did not seek out help from Ms Kalra until after the sexual boundary violations had occurred.
The risk of relapse into a depressive illness together with the undoubted effects of depression on decision making and judgment and the clear impact the Respondent's earlier depression had on her insight and judgment persuades us that in the event that she did have a relapse of her depressive illness, there is a likelihood that it would affect her capacity to practise.
Dr Wright again, when it was suggested to him that even if the Respondent did suffer a relapse of her depressive illness, it would not detrimentally impact her capacity to practice, disagreed and said: I know for sure that under certain kinds of professional and personal stressors she has experienced repeated episodes of depression. And least in the last one that episode of depression impacted her professional judgment. And that ‑ so those ‑ the ‑ the fact that she's been able to ‑ with the support of her psychiatrist and psychologist navigate some tricky times in the last 18 months is a good sign. But it doesn't necessarily tell me that it's not going to happen in the next 18 months.
We thus conclude that the Respondent has a disorder being a depressive disorder that is likely to detrimentally affect her capacity to practise her profession and thus meets the definition of impairment as set out in s 5 of the National Law and thus find Complaint 3 made out. We do not find that the Respondent has an Alcohol Abuse Disorder

Protective Orders

There is no better starting point for a discussion about what consequences should flow from our finding the complaints proven than that which Meagher JA said in Health Care Complaints Commission v Do [2014] NSWCA 307 at [35]: The objective of protecting the health and safety of the public is not confined to protecting the patients or potential patients of a particular practitioner from the continuing risk of his or her malpractice or incompetence. It includes protecting the public from the similar misconduct or incompetence of other practitioners and upholding public confidence in the standards of the profession. That objective is achieved by setting and maintaining those standards and, where appropriate, by cancelling the registration of practitioners who are not competent or otherwise not fit to practise, including those who have been guilty of serious misconduct. Denouncing such misconduct operates both as a deterrent to the individual concerned, as well as to the general body of practitioners. It also maintains public confidence by signalling that those whose conduct does not meet the required standards will not be permitted to practise.
In Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [91] Santow JA said that orders not only protect and maintain high standards but: "There is also an element of deterrence or, to put it more positively, encouragement to other practitioners to recognise the importance of complying with professional standards and the risks of failing to do so".
We adopt what was said in Prakash v Health Care Complaints Commission [2006] NSWCA 153 that the work of the orders following a finding that a complaint has been made out is to be, "…protective of the interest of the public at large, …. However, the public interests include, indirectly the standing of the medical profession and the maintenance of public confidence in the high standards of medical practitioners".
In Director-General, Department of Ageing, Disability and Home Care v Lambert [2009] NSWCA 102 at [83] Basten JA said: … As is well-established in the disciplinary jurisdiction generally, including with respect to legal and medical practitioners, the specific purpose for which orders are made is protective in the public interest and is not punitive with respect to the individual: That is not to deny that such orders may be punitive in effect, a matter which may have particular significance in respect of the privilege against self-incrimination: Nor does it necessarily follow that punitive effects may not be relevant in formulating a protective order. For example, the fact that there are such punitive effects may remind the Court that a protective order should be limited to that which is reasonably necessary to provide the required level of public protection (reference to weighing the punitive effects in the balance should be understood in context as limited to the purpose identified here). Further, the punitive effects may be directly relevant to the need for protection. Thus, in a particular case, there may be a factual finding that the harrowing experience of disciplinary proceedings, together with the real threat of loss of a livelihood may have opened the eyes of the individual concerned to the seriousness of his or her conduct, so as to diminish significantly the likelihood of its repetition. Often such a finding will be accompanied by a finding that the person concerned has achieved a level of insight into his or her own character or misconduct, which did not previously exist. (citations omitted)
It is against this context that we turn to consider what protective orders should flow from the Tribunal's finding the complaints established.
The commission submitted that the Tribunal would have hesitation in finding that the Respondent was remorseful or had insight into her misconduct. The submission points to the many statements of the Respondent in which, it could reasonably be said, she attempted to minimise the effect of her conduct on the patient and to portray the relationship as a sexual relationship between two consenting adults.
The Respondent's evidence to the Tribunal and her later written submissions certainly have that character however they are in significant contrast to the statements she provided the Medical Council early in the investigation. For example in her statement of February 2021, the Respondent reflects on her conduct, how she regarded her judgment to have been clouded and sets out the potential for harm to the patient from her breach of boundaries.
In written submissions it was argued for the Respondent that she was "unaware" of the blanket ban on sexual relationships with former patients imposed by the Code of Ethics propounded by her governing body. How it could be that the Respondent did not know of this ban, that she "missed" it or overlooked it was not explained. However, given her retraining necessary to qualify for registration in Australia followed by her studies and examinations necessary to become a Fellow of the Royal Australian and New Zealand College of Psychiatrists, it is difficult to understand how she could have been unaware of the Code. Neither was it explained why she focussed not on the Code of her own profession but on a broad-based Guideline developed for medical practitioners generally. If she was ignorant of the clear prohibition contained in the Code whatever the cause of her ignorance of it, does not amount to a mitigating factor in considering the gravity of her conduct.
In closing argument counsel for the Respondent submitted that the Respondent had "persuaded herself" that there was a lacuna in the guidelines which might condone her conduct, that it was not a relationship of harm to the patient and that she overlooked the line in the Code which said sexual relationships with former patients is always unethical. By this we understand not that the Respondent has no insight or remorse but that it was not well expressed in her evidence to the Tribunal. We are comforted in this conclusion by reference to the exchange between the Respondent and Dr O'Brien about the impact on the patient of the relationship in which the Respondent candidly agreed with the harm potentially done and said: "I regret it".
There is sufficient evidence before the Tribunal to the effect that the Respondent is remorseful and if not complete, has developed some insight into her conduct and how it came about.
Neither can the Tribunal find that this type of boundary violation would occur again even were the Respondent's depressive illness relapse and her judgment be impaired. We come to that view because of her evidence and the effect of the evidence of Dr Wright of his consultations with the Respondent that the devastating effect this has had on the Respondent, her family and her career is of itself likely to prevent such boundary violation occurring in the future.
None of these factors however should be seen to diminish the seriousness and significance of the Respondent's misconduct of engaging in a sexual and romantic relationship with a former patient with all the concomitant potential harms for this particular patient and in failing to maintain the high standards of conduct expected from a psychiatrist in the Respondent's position. Her conduct was reprehensible.
The practitioner has voluntarily removed her name from the AHPRA's register of medical practitioners and it is unclear whether she has any intention of seeking re-registration.
In submissions, it was argued for the Respondent that an order cancelling her registration for a period longer than 1 year would be punitive not protective. We do not agree. The Respondent's departure from her ethical and professional standards was significant and we are satisfied that an order that reflects a 2 year cancellation of her right to practise will properly fulfill the role that protective orders must play.
Were the practitioner still registered, the Tribunal would have cancelled her registration. Given the gravity of the conduct which supports the complaints, the Tribunal considers that the period of cancellation would be for a period of 2 years from the date of the making of these orders.
The Tribunal will request that the National Board record the fact that had the practitioner still been registered it would have cancelled her registration.

Costs

The Respondent is to pay the Commission's costs as agreed or assessed.

Orders

The Tribunal makes the following orders: 1. Pursuant to the Health Practitioner Regulation National Law (NSW) Schedule 5D clause 7(1)(b)(iii) the disclosure of the name of the Respondent and any other identifying information as provided in clause 7(10)(4) be restricted to the parties and their representatives, and to any other persons or bodies where disclosure is necessary for the effective implementation and administration of the orders made in the proceedings. 2. Pursuant to s 149C(4)(a) of the National Law that if the practitioner were still registered the Tribunal would have cancelled her registration pursuant to section 149C(1)(b) of the National Law. 3. Pursuant to section 149C(4)(b) of the National Law the practitioner is disqualified from being registered in the medical profession for two years from the date of these orders. 4. Pursuant to s 149C(4)(c) of the National Law that the National Board is required to record the fact that if the practitioner were still registered, the Tribunal would have cancelled her registration in the National Register kept by the Board. 5. The practitioner pay the Commission's costs as agreed or assessed.

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: 08 April 2024

At a glance

Court

Decision date

Before

Source

Judgment (29 paragraphs)

Parties

Cases Cited (10)