Health Care Complaints Commission v Georghy [2019] NSWCATOD 50 | Case summary

NCAT Occupational|2019-03-04|Before: Dr J, Ms J

Introduction

The Respondent completed his medical training in the former Yugoslavia in or around 1976. He migrated to Australia in 1985. In 1990 he passed the Australian Medical Council examination and was first registered as a medical practitioner on 17 April 1990. During the period of the complaints the subject of these proceedings, he worked as a medical practitioner and owner of North Shore Cosmetic Medical and Dental in North Sydney, NSW ("the practice"). His wife worked in the practice as a dentist and performed other duties.
On 8 December 2016 the Medical Council of NSW ("the Council") conducted an inquiry under s150 of the National Law into alleged conduct of the Respondent and the outcome was the imposition of conditions on the Respondent's registration which included a prohibition on him dealing with female patients.
On 7 June 2018 the Applicant commenced disciplinary Proceedings in this Tribunal by the first application.
On 23 August 2018 persons authorised under s164 of the National Law entered and inspected the practice. They examined the computer appointment system, and other records and interviewed the Respondent. They took extracts from patient records.
After the inspection of the Respondent's practice on 23 August 2018 the Applicant filed a second Application on 7 February 2019 complaining in relation to the alleged breach of the conditions of the Respondent's registration and also obstruction by him of the inspection of the practice on 23 August 2018 by authorised persons.

The Complaints

By Application (File No: 2018/00179591) filed in the Tribunal dated 7 June 2018 the Applicant raised three complaints against the Respondent which are:- The Health Care Complaints Commission of Level 13, 323 Castlereagh Street, Sydney NSW, having consulted with the Medical Council of New South Wales in accordance with sections 39(2) and 90B(3) of the Health Care Complaints Act 1993 and section 145A of the Health Practitioner Regulation National Law (NSW) ("the National Law") HEREBY COMPLAINS THAT Dr Joseph Georghy ("the practitioner") of 313 Pacific Highway NORTH SYDNEY NSW 2060 being a medical practitioner registered under the National Law. COMPLAINT ONE is guilty of unsatisfactory professional conduct under section 139B(1)(a) and/or (l) of the National Law in that the practitioner has: i. engaged in conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of medicine is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience; and/or ii engaged in improper or unethical conduct relating to the practice or purported practice of medicine. Each of the particulars and each of the sub-particulars therein, of this Complaint in itself justifies a finding of unsatisfactory professional conduct. In the alternative, when two or more of the particulars are taken together, a finding of unsatisfactory professional conduct is justified. BACKGROUND TO COMPLAINT The practitioner completed his medical training in the former Yugoslavia in or around 1976 before migrating to Australia in 1985. The practitioner passed the Australian Medical Council examination in 1990 and was first registered as a medical practitioner in Australia on 17 April 1990. During the period of the complaints, the practitioner worked as a general practitioner and owner of the North Shore Cosmetic Medical and Dental in North Sydney, New South Wales. Patient A was a 53 year old female with pancreatic cancer who consulted with the practitioner on one occasion on or around 27 May 2016 for the purpose of receiving a Vitamin C and Glutathione infusion. Patient B was a 25 year old female who consulted with the practitioner on one occasion on or around 19 May 2012 for the purposing of undergoing Ultroid Therapy for the treatment of haemorrhoids. PARTICULARS OF COMPLAINT ONE Patient A 1. On or around 27 May 2016 the practitioner performed an inappropriate breast examination on Patient A in circumstances where; a. the examination was not clinically indicated; and b. the practitioner failed to provide any explanation for the examination to Patient A. 2. On or around 27 May 2016 during a breast examination of Patient A the practitioner inappropriately; a. flipped up Patient A's bra without her consent; and b. squeezed Patient A's breasts without her consent. 3. On or around 27 May 2016 prior to and during a breast examination of Patient A the practitioner; a. failed to allow Patient A to undress in private; and b. failed to provide Patient A with appropriate draping during the examination. 4. By his actions in particulars (1) to (3), the practitioner breached professional boundaries and committed sexual misconduct as defined in the Medical Board of Australia 'Sexual Boundaries: Guidelines for Doctors' published 28 October 2011 ('the Sexual Boundaries Guidelines'). 5. On or around 27 May 2016 the practitioner performed an inappropriate groin examination on Patient A in circumstances where; a. the examination was not clinically indicated; and b. the practitioner failed to provide any explanation for the examination to Patient A. 6. On or around 27 May 2016 during a groin examination of Patient A the practitioner inappropriately grabbed Patient A's underpants and jeans and attempted to pull them down without Patient A's consent. 7. By his actions in particulars (5) and (6), the practitioner breached professional boundaries and committed sexual misconduct as defined in the Sexual Boundaries Guidelines. 8. On or around 27 May 2016 the practitioner inappropriately arranged a referral for Patient A to Dr David Bell, oncologist in circumstances where; a. the sole purpose of Patient A's attendance on that day was to receive a vitamin C and glutathione infusion; b. Patient A did not request a specialist referral; c. the practitioner failed to adequately consider the scope of his role in relation to Patient A's health care, contrary to points 4.2.2 and 4.4.1 of the 'Good Medical Practice: A Code of Conduct for Doctors in Australia' (the 'Code of Conduct"); and d. the practitioner allowed his personal views to affect his care of Patient A, contrary to point 2.2.12 of the Code of Conduct. 9. On or around 27 May 2016 the practitioner inappropriately advised Patient A that she needed to arrange cancer tests with Genostics in circumstances where: a. the practitioner failed to provide Patient A with an adequate explanation for the purpose of the tests; b. the practitioner failed to disclose that the tests performed by Genostics are outside the scope of conventional medicine; c. Patient A did not request the tests; d. the practitioner said words to Patient A to the effect of "you will need to get your things in order. Sell your house if you need to. you need to have tests done that cost money. You need to do this to survive. You need to get this done today. We need to get tests sent to Germany, they need to go today"; e. there was no clinical urgency for the tests; f. the practitioner handed Patient A her mobile phone during the examination and directed her to call Genostics immediately; and g. the practitioner allowed his personal views to affect his care of Patient A, contrary to point 2.2.12 of the Code of Conduct. 10. On or around 27 May 2016 the practitioner made inappropriate comments to Patient A, including to the following effect:- a. "you need to take this seriously, you are too relaxed. People die all the time. Once you start chemotherapy, you are only a number and nobody cares"; b. "You need to lose weight as you are overweight", and c. in a phone call overhead by Patient A, referred to patient as a "terminally ill cancer patient'. 11. On or around 27 May 2016 the practitioner grossly overcharged Patient A for treatment provided on that date. 12. On or around 27 May 2016 the practitioner gave inappropriate advice to Patient A in relation to alternative therapies including curcumin therapy, laser therapy and hyperthermia for pancreatic cancer in circumstances where:- a. the treatments are not evidence-based therapies for pancreatic cancer; b. Patient A did not enquire about alternative therapies for treatment of pancreatic cancer; and c. the practitioner imposed his own views in a way that was disrespectful of Patient A's other treating doctors. Patient B 13. On or around 19 May 2012 the practitioner engaged in inappropriate behaviour of a sexual nature by inserting his finger into Patient B's vagina on three occasions without clinical indication, and in doing so committed sexual misconduct as defined in the Sexual Boundaries Guidelines. 14. On or around 19 May 2012, the practitioner performed an inappropriate vaginal examination on Patient B in circumstances where: a. Patient B did not have any symptoms which suggested a gynaecological diagnosis; b. the practitioner failed to provide any explanation for the examination to Patient B; c. the practitioner failed to obtain consent to perform the examination from Patient B; d. the practitioner failed to provide Patient B with adequate draping; e. the practitioner performed repeat digital examination without clinical indication; f. the practitioner performed a digital examination for approximately 30 seconds where there was no significant vaginal pathology; and g. by his actions in sub-particulars (a) to (f), the practitioner breached professional boundaries and committed sexual misconduct as defined in the Sexual Boundaries Guidelines. 15. On or around 19 May 2012 whilst performing Ultroid therapy on Patient B the practitioner failed to maintain professional boundaries by making inappropriate comments to Patient B, including to the effect of:- a. inquiring whether Patient B practised anoreceptive intercourse; b. saying words to the effect of "most women really enjoy anal sex. When they come in for this treatment, they tell me to move the probe here and there as they are enjoying it. If you don't like this, you would be no good at anal sex"; and c. by his actions in sub-particulars (a) and (b), the practitioner breached professional boundaries and committed sexual harassment as defined in the Sexual Boundaries Guidelines. 16. On or around 19 May 2012, the practitioner failed to maintain professional boundaries by hugging Patient B at the conclusion of the examination whilst she was dressed only in a bra and singlet, and in doing so committed sexual misconduct as defined in the Sexual Boundaries Guidelines. 17. On or around 19 May 2012, the practitioner failed to provide adequate information to Patient B in relation to the risks associated with Ultroid therapy. COMPLAINT TWO is guilty of unsatisfactory professional conduct under section 139B(1)(b) and/or (l) of the National Law in that the practitioner has: i engaged in improper or unethical conduct relating to the practice or purported practice of medicine; and/or ii contravened s133(1) of the National Law in that the practitioner advertised a regulated health service, or a business that provides a regulated health service, in a way that was misleading or deceptive or was likely to be misleading or deceptive. Each of the particulars and each of the sub-particulars therein, of this complaint in itself justifies a finding of unsatisfactory professional conduct. In the alternative, when two or more of the particulars are taken together, a finding of unsatisfactory professional conduct is justified. PARTICULARS OF COMPLAINT TWO 1. The practitioner's website contains details of the practitioner's qualification's that are false, misleading or deceptive, including:- a. that he is a Fellow of the Australian Cosmetic Physicians; and b. that he is a Fellow of the Faculty of Medicine - Australasian College of Cosmetic Surgery contrary to the AHPRA 'Guidelines for Advertising Regulated Health Services' published May 2014. 2. The practitioner's website contains misleading or deceptive information in that his advertising of 'Intravenous Nutritional Therapy' fails to disclose that this treatment is outside the scope of conventional medical practice. COMPLAINT THREE is guilty of professional misconduct under section 139E of the National Law in that the practitioner has: i. engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration, or ii engaged in more than one instance of unsatisfactory professional conduct that, when the instances are considered together amount to conduct of a sufficiently serious nature to justify the suspension or cancellation of the practitioner's registration PARTICULARS OF COMPLAINT THREE 1. Complaints one and two and the particulars thereof are repeated and relied upon both individually and cumulatively. The Respondent did not file any formal Reply to that Application. The Applicant and the Medical Council of New South Wales combined to cause an enquiry under s150 of the National Law in respect of complaints received about the Respondent which subsequently became the subject of the above proceedings. That enquiry was conducted on 9 December 2016 and as a result of the hearing the delegates decided to impose the following conditions on the Respondent's registration:- To advise the Medical Council of NSW in writing at least seven days prior to changing the nature or place of his practice; To authorise and consent to any exchange of information between the Medical Council of NSW and Medicare Australia for the purpose of monitoring compliance with these conditions. Not to consult, examine, treat or perform any procedures on any female patients. The practitioner may only provide emergency medical services to such persons in compliance with section 139C(c) of the Health Practitioner Regulation National Law. If any such event occurs, the practitioner must notify the medical Council of NSW within 2 hours and provide details of the event and any other information as requested by the Council. The Medical Council conducted a compliance audit at the surgery of the Respondent in August 2018. As a result of that audit, the Applicant commenced further proceedings in the Tribunal by an Application (File No. 2019/41575) filed 6 February 2019 The two Applications were consolidated by Consent Order made on 8 January 2019. For convenience, the complaints in the second Application will be referred to as complaints four and five which are:- The Health Care Complaints Commission of Level 13, 323 Castlereagh Street, Sydney NSW, having consulted with the Medical Council of New South Wales in accordance with sections 39(2) and 90B(3) of the Health Care Complaints Act 1993 and section 145A of the Health Practitioner Regulation National Law (NSW) ("the National Law") HEREBY COMPLAINS THAT Dr Joseph Georghy ("the practitioner") of 313 Pacific Highway NORTH SYDNEY NSW 2060 being a medical practitioner registered under the National Law. BACKGROUND During the period of the complaints, the practitioner worked as a medical practitioner and owner of the North Shore Cosmetic Medical and Dental in North Sydney, New South Wales ("the practice"). On 8 December 2016 the Medical Council of NSW ("the Council") held proceedings pursuant to section 150 of the National Law and determined to impose conditions on the practitioner's registration. The conditions relevantly included; Practice condition 3: "Not to consult, examine, treat or perform any procedures on any female patients. The practitioner may only provide emergency medical services to such persons in compliance with section 139C(c) of the Health Practitioner Regulation National Law. If any such event occurs, the practitioner must notify the Medical Council within 24 hours and provide details of the event and any other information as requested by the Council. On 23 August 2018 authorised persons under section 164 of the Health Practitioner Regulation National Law (NSW) entered and inspected the practice including by examining computer appointment system, paper records, speaking to the practitioner and taking extracts of patient records. COMPLAINT FOUR is guilty of unsatisfactory professional conduct under section 139B(1)(b), (c) and/or (l) of the National Law in that the practitioner has: i. contravened a condition to which the practitioner's registration was subject; and/or ii contravened a provision of the National Law and/or; iii engaged in improper or unethical conduct relating to the practice of medicine. PARTICULARS OF COMPLAINT FOUR. 1. Between around 14 December 2016 and 16 August 2018 the practitioner breached Practice Condition 3 of the conditions on his registration in that he consulted, examined, treated or performed procedures on female patients as set out in the schedule attached and marked A. 2. On or around 23 August 2018, the practitioner hindered and/or obstructed the inspection by authorised persons by pushing the file of Patient C into a rubbish bin for the purpose of concealing breaches of Practice Condition 3, contrary to section 164C of the National Law. 3. [The Schedule includes 30 names with consultation dates. For the first patient 15 consultations are noted and of the others one has 5 consultations, two have 2 consultation dates, two have 3 consultation dates and one has 2 consultation dates. The rest are single consultation dates.] COMPLAINT FIVE Is guilty of professional misconduct under section 139E of the National Law in that the practitioner has: i engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration, or ii engaged in more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify the suspension or cancellation of the practitioner's registration PARTICULARS OF COMPLAINT FIVE 1. Complaint four and the particulars thereof are repeated and relied upon both individually and cumulatively.
Although the Respondent was served with the second application on about 7 June 2018, he filed a Reply only to the first application and not to complaints 4 and 5 in the second application.
The Respondent's Reply to the first Application is dated 7 December 2018 and is Exhibit 4. He denies that his conduct under Complaints One, Two and Three constituted unsatisfactory professional conduct. He denies the allegation in Ground 3 that he is not suitable to hold registration as a medical practitioner.
In relation to the Particulars of Complaint One, he also denied that he is guilty of professional misconduct. In relation to Complaint One, he admits that Patient A consulted with him on 27 May 2016 but otherwise denied all the 12 Particulars to Complaint One under the heading of "Patient A".
He admitted that Patient B consulted with him on 19 May 2012 but otherwise denied all of the particulars regarding Patient B contained in Complaint One.
In his response to Complaint Two, he admitted that his website incorrectly states that he is a Fellow of Australian Cosmetic Physicians and incorrectly states that he is a Fellow of the Faculty of Medicine - Australasian College of Cosmetic Surgery, and that he is a member of the Australian Cosmetic Physicians. He says that the correct statement should have been that he is a member of the Cosmetic Physicians College of Australia. He admitted the details alleging he has a fellowship with the Cosmetic Physicians College of Australia and Australasian College of Cosmetic Surgery were incorrect as these memberships had not been renewed. He alleged that he was unaware of the lapsing of those memberships and was unaware that in that situation he could no longer state that he was a fellow of an organisation.
He also admitted that his website failed to disclose that Intravenous Nutritional Therapy is outside the scope of conventional medical practice.
In relation to Complaint Three, he denied the allegation that he was guilty of professional misconduct and relied in relation to the particulars of Complaint three upon his response to responses preceding that one.
The Respondent denies the allegation in Complaint Three that he is guilty of professional misconduct.
The Respondent denies all of the 17 Particulars to Complaint One. In relation to Complaint Two he admits the allegation in Particular 2 that his website contains misleading or deceptive information in that it fails to disclose that Intravenous Nutritional Therapy is outside the scope of conventional medical practice. In relation to Complaint Three the Respondent denies that he is guilty of professional misconduct and relies upon his preceding response.

Exhibit 1 1. Application for disciplinary findings and orders attaching formal complaint dated 7 June 2018 2. Certificate of Registration Status from AHPRA 3. Certificate of Registration Status from Medical Council of NSW 4. Letter from the Medical Council of NSW to the Commission dated 13 December 2016 5. Transcript of section 150 hearing held on 8 December 2016 (Redacted) 6. Written reasons for decision dated 13 January 2017 (Redacted) 7. Complaint from Patient A dated 19 July 2016 attaching documents 8 and 9 8. Invoices 27055 and 27056 from Dr Georghy 9. Referral to NutriPATH Pathology 10. Statement from [Patient A] to the Commission dated 31 December 2017 attaching: 1. Referral to Genostics; 2. Printout from Genostics website; and 3. Referral to NutriPATH Pathology. 1. Complaint from Patient B dated 6 December 2012 2. Statement of Patient B to the Commission dated 16 March 2017 attaching: 1. Complaint to the Commission dated 6 December 2012 1. Letter from the Commission to Dr Simon Young, general practitioner dated 5 May 2017 2. Expert report of Dr Simon Young dated 14 May 2017 attaching: 1. Susan Wearne, 'The RACGP Fellowship Examination' Vol 37(7) Australian Family Physician (2008) 2. PET-Scans http://www.breastcancer.org/symptoms/testing/types/pet accessed at 18 May 2017 3. Self-examination of breasts: John Murtagh Information Sheets http://www.nevdgp.org.au/info/murtagh/women/Selfbreastexamination.htm accessed at 18 May 2017 4. Risk factors http://www.breastcancer.org.au/about-breast-cancer/riskfactors/default.aspx accessed at 18 May 2017 5. Pancreatic Cancer Risk Factors - American Cancer Society https://www.cancer.org/cancer/pancreatic-cancer/causes-risksprevention/ accessed at 18 May 2017 6. Medicare Benefits Schedule - Item 57 7. http://www.9.heatlh.gov.au/mbs/search.cfm?q=57&Submit=&sopt=S accessed at 18 May 2017 8. Haemorrhoids: John Murtagh Information Sheets 9. http://www.nevdgp.org.au/info/murtagh/general/Haemorrhoids.htm accessed at 18 May 2017 10. Definition of Batholin's cyst - Mayo Clinic 11. http://www.mayoclinic.org.diseases-conditions/bartholin-cyst/basics/definition/con-20026333 accessed at 17 May 2017 12. Definition of Pilonidal sinus by Medical dictionary http://medical-dictionary.thefreedictionary.com/pilondial+sinus accessed at 18 May 2017 13. Medicare Benefits Schedule - Item 32135 14. http://www9.health.gov.au/mbs/search.cfm?q=32135&Submit=&sopt=S accessed at 18 May 2017 15. Documents at Tabs 39, 40 and 41 1. Letter from the Commission to Dr Young requesting supplementary report dated 7 June 2016 2. Supplementary report of Dr Simon Young dated 16 June 2017 attaching:- 1. Aziz R, et al 'Comparison between Ultroid and rubber band ligation in treatment of internal hemorrhoids' (2010) 2. https://www.ncbi.nlm.nih.gov.pubmed/?term=Taghipour%20MA%5BAuthor%5D&cauthor=true&cauthor uid=21287479 3. Medicare Benefits Schedule - Ultroid 4. http://www9.health.gov.au/mbs/search.cfm?q=ultroid&Submit=&spopt=S 5. Medicare Benefits Schedule - Low Voltage 6. http://www9.health.gov.au/mbs/search.cfm?q=low+voltage+&Submit=&sopt 1. Document at Tab 14J 2. Letter from the Commission to Dr Young requesting supplementary report dated 18 October 2017 3. Supplementary report of Dr Young dated 21 October 2017 4. Dr Young's CV 5. Letter from the Commission to Dr Andrew Sutherland, Colorectal surgeon dated 6 June 2017 6. Expert report from Dr Sutherland (undated) received on 25 August 2017 attaching: 7. A. Rivadeneria, D et al, 'Practice Parameters for the Management of Hemorrhoids (Revised 2010) Vol 54(9) Diseases of the Colon & Rectum Volume 1059 8. B. Ganz R, 'The Evaluation and Treatment of Hemorrhoids: A Guide for the Gastroenterologist' (2013) Clinical Gastroenterology and Hepatology 593 9. C. Aziz R, et al 'Comparison between Ultroid and rubber band ligation in treatment of internal hemorrhoids' (2010) 10. https://www.ncbi.nlm.nih.gov/pubmed/?term=Taghipour%20MA%5BAuthor%5D&cauther=true&cautheruid=21287479 11. Letter from the Commission to Dr Sutherland requesting supplementary report dated 20 October 2017 12. Supplementary report of Dr Sutherland dated 20 November 2017 13. Dr Sutherland's Resume 14. Dr Georghy list of qualifications and experience printed 15 June 2018 15. Dr Georghy I.V. Therapy document - 5 pages 16. Dr Georghy marketing brochure about him and services performed - 11pages 17. Letter from Commission to Dr Georghy dated 14 September 2016 18. Letter of 10 October 2016 to Commission from Dibbs Barker, solicitors for respondent appointments diary page for 27 May attached 19. Letter of 21 February 2017 from applicant to Dr Georghy 20. Letter of 24 December 2012 from Applicant to Dr Georghy 21. Letter of 11 February 2013 from Dr Georghy to Applicant with attachments 1. Promotion letter for North Shore Cosmetic Medical and Dental 2. Page from Dr Georghy's appointment book for 19 May 2016; 3. Receipt for Patient B's payment of $800.00 to Dr Georghy on19 May 2012 1. S40 letter from the Commission to Dr Georghy dated 21 August 2017 2. S40 submissions from Meridian Lawyers dated 20 September 2 3. Expert report to Respondent's solicitors by Mr Phillip Murray Lamont, Vascular and General Surgeon dated 9 July 2017 4. Statement of Ms Katya Wang (PA/receptionist of Dr Georghy) dated 2 December 2016 5. Report of Darren Gold, colorectal surgeon dated 5 February 2017 1. Letter of instructions from Dibbs Barker to Dr Gold dated 18 January 2017 1. CV of Dr Georghy (provided to the Commission in February 2013)

Exhibit 2 1. Medical Board of Australia, 'Sexual Boundaries for Doctors' (October 2011) 2. Medical Board of Australia, 'Good Medical Practice: A Code of Conduct for Doctors in Australia' (March 2014) 3. AHPRA, 'Guidelines for Advertising Regulated Health Services' (May 2014)

Exhibit 2 1. [Patient A's] medical records from Dr Georghy 2. Transcript of consultations prepared by Dr Georghy 3. [Patient A's] medical records from Mr Garth Harris 4. [Patient B's] medical records from the Dr Georghy 5. Transcript of consultations notes (Patient B) prepared by Dr Georghy 6. [Patient B's] medical records from Dr Roger Charmoun, general practitioner 7. [Patient B's] medical records from Dr Rado Andric, general surgeon

Exhibit 3 1. Application for disciplinary findings and orders attaching formal complaint dated 6 February 2019 2. Letter from Medical Council to Commission referring the matter pursuant to section 150D 3. Transcript of section 150 proceedings held on 20 September 2018 4. Written reasons for decision dated 28 September 2018 5. Report of Compliance Audit for Dr Joseph Georghy attaching 22 photographs of sections of appointment diaries, handwritten appointments, appointment software, clinical records of one patient, cupboard with temporary files, and temporary files. 6. Documents at Tabs 9-41 7. File note of Inspection prepared by Medical Council 8. S28 letter from the Commission to the Respondent (7/1/2018) 9. S40 letter from the commission to the Respondent (22/11/2018) 10. Letter to the Commission from the Respondent (20/12/2018) 11. Respondent's medical records and photographs. Photographs of Respondent's Medical Records for 33 Patients

Exhibit 4 1. Respondent's Reply of 7 December 2018 to Application dated 7 June 2018.

The Respondent did not attend the hearing. It was noted at a case conference on 8 February 2019 that the Respondent would not participate in the hearing, would not tender any evidence, and had withdrawn his instructions to his legal representatives.
Leave was also granted to his legal representatives to withdraw.
The Respondent did not make himself available for cross-examination. He did not require attendance of any of the Applicant's witnesses for cross-examination.

Unsatisfactory Professional Conduct / Professional Misconduct

"Unsatisfactory professional conduct" of a registered health practitioner is defined in sub-section 139B(1) of the National Law as including: "(a) Conduct that demonstrates the knowledge, skill or judgement possessed, or care exercised by the practitioner in the practice of the practitioner's profession is significantly below the standard reasonably expected of the practitioner of an equivalent level of training or experience" (para 139B(1)(a)); (b) A contravention by the practitioner (whether by act or omission) of a provision of this law, or the regulation under this law or under the NSW regulations, whether or not the practitioner has been prosecuted for or convicted of an offence on respect of the contravention. (c) A contravention by the practitioner (whether by act or omission) of: (i) a condition to which the practitioner's registration is subject; or (ii) an undertaking given to a National Board. (j) Engaging in over-servicing. (l) Any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession."

Improper or Unethical Conduct

In R v Byrne (1995) 193 CLR 501 the High Court held "improper" meant not in conformity with standards of professional conduct and practice.
In Health Care Complaints Commission v MacGregor [2016] NSWCATOD 85 at [41] the Tribunal referred to dictionary definitions of "unethical" as "contrary to moral precept; immoral; in contravention of some code of professional conduct" and held that that definition should be applied in disciplinary proceedings under the National Law.
Sub section 133(1) of the National Law provides: "133 Advertising (1) A person must not advertise a regulated health service, or a business that provides a regulated health service, in a way that-- (a) is false, misleading or deceptive or is likely to be misleading or deceptive; …or (d) creates an unreasonable expectation of beneficial treatment; or (e) directly or indirectly encourages the indiscriminate or unnecessary use of regulated health services. : Maximum penalty-- (a) in the case of an individual--$5,000; or (b) in the case of a body corporate--$10,000."

Professional Misconduct

Under Section 139E, for the purposes of the National Law "professional misconduct" of a registered health practitioner includes: 1. Unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; or 2. More than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration.

Expert Evidence

Dr Simon Young a general practitioner, was the expert engaged by the Applicant to give opinions in relation to the relevant conduct of the Respondent particularly as to whether such conduct was significantly below the standard reasonably expected from a practitioner of equivalent training or experience. Dr Young was first instructed by the Applicant by letter of 5 May 2017. That letter of instructions provided extensive detail, compared the versions of events of the Respondent and the patient. It also provided Dr Young with extensive documentation.
Dr Young has a very impressive Curriculum Vitae. He has been practising as a general practitioner since 1983 and has been a partner in private practice since 1987. He became a Fellow of the Royal Australian College of General Practitioners in 1998 and gained a Fellowship with the Australian College of Psychological Medicine in 2003. He has an Honorary Affiliate with Westmead Hospital since 1990, the New Children's Hospital since 1995 and Blacktown Hospital since 1997. He has been a clinical lecturer and associate clinical lecturer with Sydney University Department of General Practice since 1995 and with the Department of Paediatrics and Child Health since 1995.
Since 2008 he has been adjunct senior lecturer at the Sydney University Department of General Practice. He has been an examiner for the Fellowships of the Royal Australian College of General Practitioners since 2000 and a Quality Assurance Examiner with RGCGP since 2004 as well as a Clinical Teaching Visitor for GP Synergy,
Dr Young's initial report is dated 14 May 2017. On 7 June 2017 the Applicant requested Dr Young to provide a supplementary report. That was provided on 16 June and was accompanied by four relevant published research articles by other authors in relation haemorrhoids and also the question of whether there is a Medicare benefits item that corresponds with the treatment the Respondent allegedly provided to Patient B.
A further supplementary report was requested from Dr Young by the Applicant on 18 October 2017 and the report is dated 21 October 2017.
In addition, there is an expert report obtained by the Applicant from Dr Andrew Sutherland, a colorectal surgeon. It is dated 25 August 2017. Dr Sutherland qualified in Medicine and Surgery at the University of Melbourne in 1998 and has been a Fellow of the Royal Australian College of Surgeons since 2006. He underwent his RACS surgical training from 2000 - 2006 at St Vincent's Hospital in Melbourne. His post-fellowship training posts were at St Vincent's Hospital Melbourne and Christchurch Hospital in New Zealand. He has numerous post-graduate education and qualifications and has provided a list of publications and presentations by him in the period from 2002 - 2010. He presently works for the Mid North Coast Area Health Service and his current appointments since 2009 have been at Baringa Private Hospital Coffs Harbour, Mid North Coast Area Health Service at the Coffs Harbour Health Campus, Macksville Hospital and Bellinger River District Hospital.
Dr Sutherland was provided by the Applicant with copies of numerous documents to assist. His report was supported by four published articles or reports in relation to the management of Haemorrhoids. One of those articles also dealt with the issue of "Ultroid And Rubber Band Ligation in the Treatment of Internal Haemorrhoids" and was published in 2010. Dr Sutherland's report was of 14 pages plus the attached articles.
In October 2017 the Applicant requested a supplementary report from Dr Sutherland which he provided on 20 November 2017.
The Respondent did not request that either Dr Sutherland or Dr Young be available for cross-examination.
The Respondent had filed in the proceedings a report by Mr Philip Murray Lamont, a vascular and general surgeon. The report is dated 9 July 2017 after the report of Dr Young and his supplementary report and before the report of Dr Sutherland. Mr Lamont was briefed by the then solicitors acting for the Respondent. The only documents with which Mr Lamont was briefed by the solicitors were Dr Georghy's clinical records for Patient A and his typed transcript of those. He did not have the benefit of any of the statements by Patient A or Patient B, nor did he have a copy of the first Application commencing proceedings. Mr Lamont was asked to address only two questions:- 1. Was it reasonably necessary and appropriate for Dr Georghy to conduct a breast examination?; and 2. Was it reasonably necessary and appropriate for Dr Georghy to conduct a groin examination?
Mr Lamont did not receive any detail of the context in which the breast examination and the groin examination took place. His consideration of those issues was quite brief and he relied largely on published articles. He was not aware of the history of treatment of Patient A by her chosen medical practitioners, including specialists.
Whereas Dr Young and Dr Sutherland had no relationship with either party, Mr Lamont has known the Respondent since 1990 and they are friends.
Whereas Dr Sutherland and Dr Young both had read the Tribunal's Code of Conduct for expert witnesses and undertaken to comply with that Code, there was no evidence that Mr Lamont had read the Code and no evidence by him that he would comply with it.
Mr Lamont's briefing was grossly inadequate given the complexity of the facts in the matter.
Mr Lamont's report was three pages plus annexures comprising research, articles he relied upon for his 2 answers, his CV and details of publications and presentations in which he has been involved.
In justifying the breast examination and groin examination, Mr Lamont appears to have proceeded on the basis that Patient A had not had adequate investigations, tests and diagnoses. In his report that the infusion was being sought by Patient A as a "prospect of palliation", an alternative to chemotherapy and/or surgery. That was not the situation at all. She had confirmed the diagnosis of pancreatic cancer and she was considering the infusion before chemotherapy and surgery because as she thought it would assist her to cope with the chemotherapy.
His answers to the questions of whether each of the breast examination and the groin examination was necessary and appropriate did not recognise that the only purpose of the patient attending was for an infusion and she did not seek any other medical investigation, advice or treatment as she had already been advised by her medical practitioners and accepted their diagnoses and advice.
He did not entertain the issue of whether the patient had given a valid consent to either of those examinations. He did not consider the question of consent or the impropriety of the Practitioner assuming a diagnostic or treatment role when the patient already had other medical practitioners undertaking those roles and she was intending to continue those arrangements. She was not seeking second opinions from him and the evidence does not disclose any reason for doubt about the skills or competence of those practitioners.
Furthermore, the tribunal is concerned that Mr Lamont in his report, said that the Dr Georghy "only had an unproven diagnosis". That was irrelevant to the issues. He knew the patient was there only for the infusion. The patent told him the diagnosis. There is no suggestion that the practitioner needed the cancer diagnosis confirmed as a precondition of providing the infusion. There was no suggestion he needed the diagnosis confirmed by a medical practitioner before he would implement the infusion. And if he did, he could have done that by telephoning her doctor.
Mr Lamont devoted much of his report to providing material which was more suited for a character reference for the Respondent and the defence of some of the alternate medicine in which the Respondent is involved, as well as discussions about investigations of Mr Lamont's practice by the College of Surgeons when he was working in Victoria and his success in having the charges "put aside". He also talked about assisting a vascular surgeon from Perth to defend himself in a Medical Tribunal and his "feeling that professional jealousies were the underlying factors in the complaints against the vascular surgeon". He said: "On a similar element to the complaints about the vascular surgeon, those about myself, have precipitated complaints against Dr Georghy. Success can lead to all sorts of problems. Dr Georghy's success in the shadow of the Royal North Shore Hospital, I believe, led to his son, Robert, not obtaining a position on the Plastic Surgery Training Program, in spite of him obtaining the University Medal from his University in New Zealand."
The Tribunal has some concern that Mr Lamont was distracted from the issues he was asked to advise about and gave them very limited attention. He was not briefed well at all. He appeared to have a bias favouring the Respondent.
The overall impression was that Dr Sutherland and Dr Young were much more better informed of the circumstances and the issues, gave much more careful consideration to the questions Mr Lamont answered, and more detailed reports, and were not affected by bias in favour of either party.
In all the circumstances, the Tribunal preferred to rely upon the opinions of the experts Dr Young and Dr Sutherland, where they conflicted with those of Mr Lamont.

Complaint One - Particular One

This allegation is that the Respondent performed an inappropriate breast examination on Patient A because the examination was not clinically indicated and he failed to provide any explanation of the examination to Patient A.
In his Reply, the Respondent denied that he is guilty of unsatisfactory professional conduct in relation to Complaint One. He did not deny the conduct alleged. He admitted the conduct at the s150 enquiry. That admission is contained in the transcript. Patient A's evidence of the incident is at [16]-[18] of her statement of 31 January 2017. The Respondent did not ask the patient whether she had had a previous breast examination, nor is there any record of that in the clinical notes. Patient A's evidence is that she was not told why the breast examination was needed.
Particular 1 has been proved. Dr Young's opinion is that such an examination was not clinically indicated and the conduct of the Respondent on that occasion was significantly below the standard of the conduct reasonably required of a practitioner of equivalent training or experience and inappropriate. Dr Young opined that the Respondent's conduct in not obtaining consent "and subsequently forcing a patient to allow an examination to take place" was conduct significantly below the standard expected of a practitioner of an equivalent level of training or experience. It invited his strong criticism. It was therefore unsatisfactory professional conduct.

Complaint One - Particular Two

This allegation is that on or around 27 May 2016 during the breast examination of Patient A the Respondent inappropriately flipped up Patient A's bra without her consent and squeezed Patient A's breasts without her consent. Patient A's evidence includes this.
In his Reply the Respondent denied the allegation, but did not provide evidence at the hearing. In his report, Dr Young opined that the conduct of flipping Patient A's bra to reveal her breasts was conduct significantly below the relevant standard. It constituted a sexual assault, as did the conduct of squeezing each of the breasts of Patient A.
The conduct was proved by the evidence of Patient A in her statement of 31 January 2017. It was also improper and unethical conduct.
Dr Young addressed it at [44]-[47] of his report of 14 May 2017. He said the departure by this conduct from the standard invited strong criticism.
Accordingly the evidence establishes Particular 2 of Complaint One is a breach of professional boundaries, inappropriate, improper and unethical conduct. It is unsatisfactory professional conduct.

Complaint One - Particular Three

This allegation is that on or around 27 May 2016 prior to and during the breast examination of Patient A the Respondent failed to allow her to undress in private and failed to provide her with appropriate draping during the examination. The allegation is established by evidence of Patient A contained at [16]-[18] of the statement of Patient A dated 31 January 2017. Dr Young at [41] and [42] of his report of 14 May 2017 discusses this conduct. The conduct was inappropriate, improper and unethical and therefore was unsatisfactory professional conduct related to his purported practice of medicine under para 139B(l) of the National Law.

Complaint One - Particular Four

This ground alleges that the conduct in Particulars 1 - 3 of the Respondent breached professional boundaries and committed sexual misconduct as defined in the Medical Board of Australia 'Sexual Boundaries: Guidelines for Doctors' published 28 October 2011.
"Sexual Misconduct" is defined in the Guidelines as:- "Engaging in sexual activity which includes engaging in sexual activity with a current patient regardless of whether the patient consented to the activity or not, making sexual remarks, touching patients or clients in a sexual way, making sexual remarks or touching patients in a sexual way, or engaging in sexual behaviour in front of a patient."
It also includes:- "Inappropriate disrobing or inadequate draping for a physical examination when conducting intimate examinations without adequate prior explanation (and thus without informed consent)."
The conduct referred to in Particulars 1, 2 and 3 was proved by the statement of Patient A. It was conduct that was not clinically indicated or justified. The Tribunal is satisfied that the conduct was sexual conduct by the Respondent which amounted to sexual misconduct. It was also improper and unethical conduct related to his purported practice of medicine. It was, under para 139B(1)(l) of the National Law, unsatisfactory professional conduct.

Complaint One - Particulars Five, Six and Seven

It is alleged that around 27 May 2016 the Respondent performed an inappropriate groin examination on Patient A in circumstances where such examination was not clinically indicated and the Respondent failed to provide any explanation for the examination to Patient A. The evidence establishing this complaint is contained in the statement of Patient A of 31 January 2017. It is established that it constituted sexual misconduct under the Sexual Boundaries Guidelines. The groin examination was inappropriate and an assault. It was unethical. It was therefore unsatisfactory professional conduct.
One allegation is that during the groin examination of Patient A the Respondent inappropriately grabbed Patient A's underpants and jeans and attempted to pull them down without Patient A's consent. The alleged conduct is established by the evidence of Patient A at [18] of her statement of 31 January 2017. Patient A did not consent to the conduct of the Respondent and indeed her conduct indicated clearly that she did not want to remove the clothing any further. She was holding her underpants and jeans at a level where they covered her vagina. When the Respondent tried to pull them down further, she screamed at him "No". He then desisted. His attempt to remove her jeans and underpants constituted a sexual assault in accordance with the Sexual Boundaries document and was sexual misconduct under the Sexual Boundaries.
The conduct described in Particulars 5 and 6 have been proved.
The Respondent did not explain the reason for the groin exanimation to the patient before his conduct the subject of Particular 6. It was done without her consent. It was clearly inappropriate conduct. Dr Young's opinion was that in conducting the groin examination the Respondent's conduct fell significantly below the standard expected of a practitioner, the conduct was inappropriate, as was the conduct in grabbing Patient A's underpants and jeans and attempting to pull them down without her consent. It was inappropriate conduct and unethical, and also breached professional boundaries by being sexual misconduct as defined by the Guidelines. Accordingly, Particulars 5, 6 and 7 of the Complaint have been proved.
Dr Young in his report gave evidence that the conduct of the Respondent in grabbing Patient A's pants, and pulling down her pants, and conducting a groin examination without her consent, amounted to sexual assault, was inappropriate, was unethical and was significantly below the standard reasonably expected of a practitioner of similar training or experience. He said that such conduct invited his strong criticism. Each of those acts was unsatisfactory professional conduct.

Complaint One - Particular Eight

It is alleged that around 27 May 2016 the Respondent inappropriately arranged a referral for Patient A to Dr David Bell, Oncologist, in circumstances where:- 1. Her sole purpose of attending on the Respondent that day was to receive a glutathione infusion; 2. Patient A did not request a specialist referral; 3. The Respondent failed to adequately consider the scope of his role in relation to Patient A's health care, contrary to Points 4.2.2 and 4.4.1 of the 'Good Medical Practice: A Code of Conduct for Doctors in Australia' (the 'Code of Conduct'); and 4. The Respondent allowed his personal views to affect his care of Patient A, contrary to Point 2.2.12 of the Code of Conduct.
The evidence of Patient A establishes the facts alleged in Particular 8 paragraphs (a) and (b). Paragraphs (c) and (d) referring to the Code of Conduct are verified by the Code of Conduct, which is in evidence.
Dr Young's opinion about the conduct of the Respondent was that the patient is entitled to nominate which of her doctors does what. She had not expressed any dissatisfaction with her nominated GP, surgeon or oncology specialist. He said: "59. A respectful doctor would only provide a second opinion referral at the patient's request. 60. This domineering act by Dr Georghy also fails to consider issues around teamwork as outlined in the preamble, especially 'acknowledging and respecting the contribution of all healthcare professionals involved in the care of the patient, and understanding your particular role in the team and attending to the responsibilities associated with that role'. 61. Dr Georghy also does not meet the standard in relation to 'decisions about patient's access to medical care need to be free from bias and discrimination', nor 'ensuring that your personal views do not adversely affect the care of your patient'. 62. A competent doctor would respect other doctors; work within the clinical role assigned to them by the patient; and not place their own views before those of the patient."
The conclusion of Dr Young is that the conduct of the Respondent in the circumstances by arranging an unwanted referral for Patient A to consult with an oncologist, fell "significantly below the standard expected of a practitioner of an equivalent level of training or experience". He said that the departure from the standard invited his strong criticism.
The conduct was unsatisfactory professional conduct.

Complaint One - Particular Nine

This Particular is that on or around 27 May 2016 the Respondent inappropriately advised Patient A that she needed to arrange cancer tests with Genostics in circumstances where:- 1. He failed to provide an adequate explanation for the purpose of the test; 2. Failed to disclose that the tests performed by Genostics are outside the scope of conventional medicine; 3. Patient A did not request the tests; 4. The Respondent said words to Patient A to the effect: "You will need to get your things in order. Sell your house if you need to. You need to have tests done that cost money. You will need to do this to survive. You need to get this done today. We need to get tests sent to Germany, they will need to go today."; 1. There was no clinical urgency for the test; 2. The Respondent handed Patient A her mobile phone during the examination and directed her to call Genostics immediately; and 3. The Respondent allowed his personal views to affect his care of Patient A contrary to Point 2.2.12 of the Code of Conduct.
Apart from paragraph (e) the listed paragraphs are proved by the evidence of Patient A at [19]-[20] of Patient A's statement of 31 January 2017. There is no evidence of clinical urgency. The conduct was in breach of 2.2.12 of the Code of Conduct as alleged. Particular 9 is proved.
Dr Young said that his comments in relation to Particular 8 similarly applied in relation to Particular 9. He noted that Patient A did not request the tests and felt pressured to follow the Respondent's orders. He said that the Respondent displayed a "dictatorial attitude" that did not respect Patient A or her existing medical team. "He was imposing his views on her, including the immediate need for testing, without any explanation or consent when clinically there was no urgency". He concluded that the conduct of the Respondent under Particular 9, by arranging unwanted tests with Genostics, without informed consent, and bullying [Patient A] fell significantly below the standard expected of a practitioner of an equivalent level of training or experience and invited his strong criticism.
The conduct described in Particular 9 was unsatisfactory professional conduct.

Complaint One - Particular Ten

The allegation is that on or around 27 May 2016 the Respondent made inappropriate comments to Patient A including to the following effect:- "(a) You need to take this seriously, you are too relaxed. People die all the time. Once you start chemotherapy, you are only a number and nobody cares"; (b) You need to lose weight as you are overweight"; and (c) In a phone call overheard by Patient A referred to Patient A as a "terminally ill cancer patient".
The evidence establishing this Particular is contained in the statement of Patient A of 31 January 2017. Dr Young considered all of those comments were inappropriate. He said that by making them, the Respondent "displayed a lack of patient-centredness, he "imposed his views on the patient"; he was "disparaging and disrespectful of other doctors involved in [Patient A's] care"; "he brought up irrelevant and demeaning health issues"; He also said the Practitioner prejudiced his patient's care because of his belief that a patient's behaviour had contributed to her condition; and he gave Patient A inaccurate and menacing information". He compared a competent doctor as being "patient-centred, considerate, empathetic to the patient's plight and emotional state, respectful and takes care with their communication".
Dr Young found that the conduct described in Particular 10 was proved. Dr Young's opinion was that it was significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience and invited strong criticism. It was therefore unsatisfactory professional conduct.

Complaint One - Particular Eleven

This Complaint is that on 27 May 2016 the Respondent "grossly overcharged" Patient A for treatment provided on that date. The evidence of Patient A is that she went to the Respondent that day at about 8:00 am for a glutathione infusion. She made the appointment for that purpose and when she attended she took with her blood tests results. The Respondent asked her what she wanted to achieve by the appointment and she told him she wanted the infusion.
He spent some time talking about his expertise in dealing with cancer patients and told her that he had the biggest clinic in Australia and "I am the best doctor in Australia. I have many years' experience. I have many cancer patients. If this is not true I am either mad or senile. As I am neither, it has to be true. You are lucky to get an appointment today".
He inspected the blood test results and then went through them individually asking her whether she knew what each item was and explaining them. He Googled the items in front of her and told her she needed to know what each of the tests were for. Eventually he confirmed that the results indicated that a glutathione infusion was suitable for her. Then he spent some considerable time asking her questions about her medical history, including the dates of her hospital admission, the tests she had undergone, who performed the tests and the results of the tests. She had her relevant records with her at the consultation. There were about 30 pages and she used these to answer some of his questions. When she could not recall the date or had difficulty finding the specific details he requested in the records, she said he appeared to be annoyed with her and said words to the effect of "You need to take this seriously, you are too relaxed. People die all the time. Once you start chemotherapy you are only a number and nobody cares".
He subsequently subjected her to various physical examinations and also questioned her at length. The consultation before the infusion lasted for two hours. He charged her $650.00 for the consultation and $650.00 for the infusion. She subsequently had further infusions elsewhere and they have cost her only $150.00 each.
Apart from checking the blood tests, the examinations and questions he put to her in the "consultation" were not necessary for him to proceed with the infusion. He did not explain to her why it was necessary for him to give her a referral to Genostics or Dr Bell. She did not at any stage indicate to the Respondent that she wanted a second opinion from an oncologist, but he still gave her a referral to Dr Bell and telephoned his rooms and informed them that he was sending her with a referral. He also provided details to them and asked them to contact Patient A directly to arrange the appointment.
Dr Young's opinion as to the appropriateness of the fees charged by the Respondent for her consultation on 27 May 2016 was that it was "opportunism in relation to an over-long consult". In 2012 Patient B had been charged $150.00 for her initial consultation, but Patient A was charged $650.00 in 2016. Both were categorised as Item 57s for Medicare. The MBS rebate for an Item 57 is $61.00. Dr Young reported "It is hard to see the fee charged as anything but grossly overcharging a patient in a vulnerable and emotionally challenged state". The patient had been given a diagnosis she had cancer of the pancreas and came to have the infusion because it was likely to assist her cope with the impending chemotherapy.
Dr Young said that even accepting that Patient A was told previously about the charge for the infusion, he could not be sure "about the transparency of the cost of the initial consultation". He said: "As noted in the preamble, informed consent encompasses ensuring that your patients are informed about your fees and charges".
He repeated his comments about opportunism in relation to an over-long consult. He said that informed consent encompasses ensuring that the patient is informed about the fees and charges. He concluded that in relation to the fees charged by the practitioner to Patient A his opinion was that the practitioner's conduct was overcharging and fell significantly below the standard expected of a practitioner of an equivalent level of training or experience and the departure from the standard invited strong criticism.
The conduct was unsatisfactory professional conduct.

Complaint One - Particular Twelve

Particular 12 of Complaint One alleges that on or around 27 May 2016 the Respondent gave inappropriate advice to Patient A in relation to alternative therapies including curcumin therapy, laser therapy and hyperthermia for pancreatic cancer in circumstances where:- 1. The treatments are not evidence-based therapies for pancreatic cancer; 2. Patient A did not enquire about alternative therapies for treatment of pancreatic cancer; and 3. The Respondent imposed his own views in a way that was disrespectful to Patient A's other treating doctors.
The facts alleged in the Particular are established by the evidence of Patient A. She attended for the purpose of having an infusion only. She did not seek advice for other treatments or referrals. Dr Young at pp 28 - 29 of his report of 14 May 2017 expressed concerns about the respondent's conduct in relation to the advice he gave Patient A during the consult, particularly the advice about alternative therapies, including curcumin therapy, laser therapy and hyperthermia. He reported:- "109. These are not evidence-based therapies for pancreatic cancer. 110. As well, the reason for encounter was solely for a glutathione infusion, not to discuss alternative therapies. 111. It could be viewed that Dr Georghy was acting as in an opportunistic fashion as presumably he would have delivered these therapies. 112. By offering alternative therapies without patient enquiry, Dr Georghy displayed a lack of patient-centredness; he imposed his views on the patient; and he was disrespectful of other doctors involved in [Patient A's] care. 113. I believe that he did not ensure that his personal views did not adversely affect the care of his patient. 114. A competent doctor is patient-centred, and respectful of the medical treatment that the patient had chosen to follow, even when they do not agree with the treatment. In relation to offering alternative therapies without patient enquiry, it is my opinion that Dr Georghy's conduct fell significantly below the standard expected of a practitioner of an equivalent level of training or experience. This departure from the standard invites my strong criticism."
Accordingly, the conduct in Particular 12 was unsatisfactory professional conduct.

Complaint One - Patient B - Particulars Thirteen and Fourteen

This allegation is that on around 19 May 2012 the Respondent engaged in inappropriate behaviour of a sexual nature by inserting his fingers into Patient B's vagina on three occasions without clinical indication, and in doing so committed sexual misconduct as defined in the Sexual Boundaries Guidelines.
The allegations in Particular 14 are that on or around 19 May 2012 the Respondent performed an inappropriate vaginal examination on Patient B in circumstances where:- 1. Patient B did not have any symptoms which suggested a gynaecological diagnosis; 2. The Respondent failed to provide any explanation for the examination to Patient B; 3. The Respondent failed to obtain consent to perform the examination from Patient B; 4. The Respondent failed to provide Patient B with adequate draping; 5. The Respondent performed repeat digital examination without clinical indication; 6. The Respondent performed a digital examination for approximately 30 seconds where there was no significant vaginal pathology; and 7. By his actions in sub particulars (a) - (f) the Respondent breached professional boundaries and committed sexual misconduct as defined in the Sexual Boundaries Guidelines.
The evidence to establish the physical conduct of the Respondent alleged is set out in Patient B's statement of 16 March 2017 particularly at [7]-[24].
The Respondent in a s40 Response to the Applicant set out details of his "Ultroid Therapy of Haemorrhoidal Disease". At p 7 of the s40 Response he stated: "All female patients, including [Patient B] are offered a vaginal examination. There is a possibility that their symptoms could be ano-genital or gynaecological. The history indicates that she is on a contraceptive pill and has been administered antibiotics for infected haemorrhoids. Ano-genital thrush is very common in woman (sic) taking the pill and particularly taking the pill together with antibiotics."
But later he denied to the applicant the suggestion that all female patients were offered a vaginal examination and said that was a mistake in the document.
He later said that Patient B gave a history of vaginal discharge. However, in his typed transcript of notes of her consultation on 19 May 2012 there is no suggestion or report of any complaint or observation of a discharge and nor is there any record of any other symptom that would justify a vaginal examination. Dr Young at p 29 of his report and Dr Sutherland are both of the opinion that on the evidence there was no justification for a vaginal examination. Dr Sutherland's evidence was that examination of the abdomen and vagina are not routinely required in the assessment of haemorrhoids and most anal conditions. He said: "It would not be expected that a practitioner familiar with treating haemorrhoids would examine the vagina at all in women presenting with symptoms related to the anus".
The factual allegations in Particular 14 of Complaint One have been proved. Both Dr Sutherland and Dr Young were of the opinion that the Respondent's conduct alleged in Particular 14 was conduct that was significantly below the relevant standard reasonably expected of a practitioner with equivalent training or experience and merited serious criticism.
The conduct is also improper and unethical conduct. Accordingly the conduct the subject of this particular is unsatisfactory professional conduct under both paragraph 139B(1)(a) and paragraph 139B(1)(l) of the National Law.

Complaint One - Particular Fifteen

This Particular alleges that on or around 19 May 2012 while performing Ultroid Therapy on Patient B, the Respondent breached professional boundaries by making inappropriate comments to Patient B, including comments to the effect of:- 1. Enquiring whether Patient B practised anoreceptive intercourse; 2. Saying words to the effect of "Most women really enjoy anal sex. When they come in for this treatment, they tell me to move the probe here and there as they are enjoying it. If you don't like this, you would be no good at anal sex"; and 3. By his actions in Particulars (a) and (b) the Respondent breached professional boundaries and committed sexual harassment as defined in the Sexual Boundaries Guidelines.
The facts alleged in particular 15 are established by the evidence of Patient B at paragraph [16] of the statement of Patient B of 16 March 2017 and the admission of the Respondent in his Response to the Commission of 11 February 2013 confirmed that he asked Patient B whether she engaged in anoreceptive intercourse.
Dr Young's evidence in relation to this Particular is:- "136. A complete sexual history is only appropriate when dealing with a sexually transmitted disease consult, or a Mental Health consult. Even then, a competent doctor may be selective about the questions asked of a patient as good communication aims at minimising offence. 137. It was not appropriate to enquire about anal sex in the clinical setting of haemorrhoids. In a non-pregnant woman, chronic constipation is the most likely cause; anal sex has nothing to do with causality. 138. As well, asking about anal sex during a procedure oversteps boundaries; such a personal question if deemed important should have been asked during the history taking phase of the consult. 139. The Sexual Boundaries Guidelines for Doctors under the "Sexual Misconduct" heading is clear in managing sexual boundaries a doctor should be aware that: Sexualised behaviour includes any words or actions that might reasonably be interpreted as being designed or intended to arouse or gratify sexual desire; Sexual harassment is unwelcome behaviour of a sexual nature including, but not limited to … comments about sexual history that are not relevant to the clinical issue."
Dr Young concluded that the Respondent had overstepped the boundaries and displayed sexual misconduct. He concluded:- "It is my opinion that Dr Georghy's comments to [Patient B] regarding anal sex during the course of the treatment displayed conduct that fell significantly below the standard expected of a practitioner of an equivalent level of training or experience. This departure from the standard invites my strong criticism."
In his report of 1 September 2017 Dr Andrew Sutherland, the colorectal surgeon, said that the comments, according to Patient B, by the Respondent about anal sex were made whilst he had the probe in Patient B's rectum. He said that it might be appropriate to ask questions about anoreceptive intercourse "If a diagnosis of a sexually transmitted infection is being considered". In this case a simple 'yes or no' to that question is all that is required. He said that some surgical techniques for the management of haemorrhoids are "relatively contraindicated in patients who engage in anoreceptive intercourse" but he said that from the description of Ultroid therapy, "This is not a concern for this therapeutic technique". Also he said that if the Respondent had considered it relevant to ask whether the patient engaged in anoreceptive intercourse, then the question should have been asked tactfully during the consultation prior to the examination. He said: "It is not appropriate to make comments about anal sex and especially whilst the Ultroid probe was in [Patient B's] rectum. It is absolutely inappropriate to tell [Patient B] that most women enjoy anal sex or that she would be 'no good at anal sex'".
Dr Sutherland also agreed that the conduct described in Particular 15 departed significantly from the standard reasonably expected of a practitioner with his training and experience at the time of the incident. He said: "Dr Georghy made inappropriate and sexually suggestive comments about anal sex to [Patient B] and made those comments whilst he had the Ultroid probe in her rectum. This performance is significantly below the expected standard and warrants strong criticism".
The Guidelines define sexual harassment as:- "Unwelcome behaviour of a sexual nature including, but not limited to gestures and expressions. The doctor's intention in behaving in this way does not minimise the seriousness of the behaviour. However, if they intend to offend, humiliate or intimidate the patient, then the behaviour would be regarded more seriously. Sexual harassment includes:- (a) Making an unsolicited demand or request whether directly or by implication, for sexual favours; … (b) Irrelevant mention of a patient's or doctor's sexual practices, problems or orientation; … (d) Comments about sexual history that are not relevant to the clinical issue; (e) Requesting details of sexual history or sexual preferences not relevant to the clinical issue;
Accordingly, the conduct alleged in Particular 15 has been proved and was sexual harassment and sexual conduct. It breached sexual boundaries and constituted unsatisfactory professional conduct.

Complaint One - Particular Sixteen

It is alleged that the Respondent failed to maintain professional boundaries on about 19 May 2012 by hugging Patient B at the conclusion of the examination, whilst she was dressed only in a bra and singlet. It is alleged that in so doing he committed sexual misconduct as defined in the Sexual Boundaries Guidelines. The evidence of this conduct is contained in the statements of Patient B. It is proved.
The opinion of Dr Young is that doctors would not initiate a hug without some degree of consent. The evidence of Patient B was that there was no consent. Dr Young was of the opinion that a hug should never take place if the patient was unclothed. He referred to the sexual boundaries which state under 'Sexual Misconduct':- "Sexual assault ranges from physical touching (or examination without consent) to rape …"
Dr Young reported:- "According to [Patient B's] version of events Dr Georghy hugged her spontaneously without her initiation or consent before she was fully dressed. Such physical touching constitutes sexual assault."
Dr Young's opinion is that the conduct of hugging the patient without her consent whilst she was dressed only in a bra and singlet, was conduct significantly below the standard expected of a practitioner of an equivalent level of training or experience and invited strong criticism. The conduct was unsatisfactory professional conduct.

Complaint One - Particular Seventeen

This alleges that on or around 19 May 2012 the Respondent failed to provide adequate information to Patient B in relation to the risks associated with Ultroid therapy.
The Respondent's website advertised "Painless" non-surgical treatments for haemorrhoids that required "no down time". The evidence of Patient B is that the Respondent orally confirmed to her that the treatment was "pain-free" and she would be a lot better after the treatment.
But Patient B found the treatment was extremely painful and her condition significantly deteriorated after the treatment. Her evidence is that the Respondent did not discuss with her an anal tear until a few days after the procedure when she telephoned him. He then offered Botox treatment for her anal tear after she reported bleeding, plus discharge and anal pain. She sought medical assistance from elsewhere in July 2012 and later.
The Respondent proceeded to perform Ultroid therapy in circumstances where he had diagnosed that Patient B had an anal tear. He documented that he offered her many anaesthetic options to get around the pain of the anal tear, but general anaesthetic was not on the list. He also did not offer her the option of not going ahead with the procedure and returning to her usual doctors. It was in his personal financial interests that she go ahead with the procedure and it could be argued that he exploited Patient B's fear of conventional treatment. Dr Young also reported:- "181. It was also in Dr Georghy's financial interest that she go ahead with the procedure, and it could be viewed that he exploited [Patient B's] fear of conventional treatment. 182. Treating a patient with respect at all times is at the core of good patient care, as outlined in the preamble … maximising the patient's comfort is an extension of this respect. 183. Competent doctors also give priority to … treating patients on the basis of clinical need and effectiveness of the proposed … treatment. 184. Although Dr Georghy believes that Ultroid therapy is an evidence-based treatment, NO OTHER doctor in Australia shares his view. Safe doctors practice within an ACCEPTED evidence-base. 185. Competent doctors as well do not mislead their patients; they provide informed, balanced information. 186. [Patient B] read on the Northshore Cosmetic website that it was a painless procedure, and had this confirmed when she made a telephone enquiry about the Ultroid Therapy. She was also told that there was no side effects or risks associated with the procedure. 187. Dr Georghy in his response to the s150 hearing on 8 December 2016 asserted that the only discomfort felt by patients related to the 'insertion of the rectoscope'. 188. I am also concerned that Dr Georghy proceeded with the Ultroid therapy when one of his provisional diagnoses was 'Ano-rectal fistula' - most competent doctors would have arranged further investigation to explore this diagnosis, not gone ahead with the procedure. 189. It is my opinion that Dr Georghy's use of an unconventional therapy (lacking traditional evidence base), especially in the presence of an anal tear requiring local anaesthesia; his misleading [Patient B] about the pain and possible side effects from the procedure; and his financial exploitation of Patient B; displayed conduct that fell significantly below the standard expected of a practitioner of an equivalent level of training or experience. This departure from the standard invites my strong criticism."
Dr Sutherland said that the standard letter from Dr Georghy to the patient regarding Ultroid therapy described it as a 'walk in - walk out' procedure with 'no down time'. That document did not claim the procedure was painless. However, his practice website stated that the haemorrhoid treatment offered caused 'no down time or post-treatment discomfort'.
In a Response to the Commission, Dr Georghy stated that: "Ultroid therapy 'is used to treat painlessly and non-surgically internal haemorrhoids'".
Dr Sutherland reported: "Whilst it is difficult to be certain based simply on the notes, it appears likely that at the time [Patient B] consulted Dr Georghy she was in fact suffering from an anal fissure rather than haemorrhoids (See 5.1.0 below). In the presence of an anal fissure a digital rectal examination typically causes significant pain, as occurred with Patient B. Insertion of a rectoscope, both harder and larger than a finger, causes even greater pain. In [Patient B's] case it was not possible to insert the rectoscope without applying local anaesthetic to the area. Insertion of the rectoscope would be expected to exacerbate the anal fissure by increasing the tear or split in the anal skin. This would then lead to increased pain once the anaesthetic had worn off. A second consequence of the misdiagnosis is that the treatment of haemorrhoids would not resolve [Patient B's] anal pain if haemorrhoids were not the cause of the pain in the first place. In addition to an anal fissure, [Patient B] apparently also developed a perianal abscess following the Ultroid therapy. This abscess was apparently located in the intersphincteric space and was not thought to be a consequence of the anal fissure/fistula according to (Dr) Rado Andric. A chronic anal fissure may lead to the development of a fistula. This would be expected to be a subcutaneous fistula, rather than involving the intersphincteric space. An anal fissure is a split in the skin that may extend in depth to the internal sphincter. Even a severe fissure would not be expected to extend through the internal sphincter in to the intersphincteric space. I believe that the abscess was most likely subcutaneous from Rado Andric's description of the procedure to repair it. Identifying the exact anatomy of the anal canal can be difficult in the setting of acute pathologies and with prior procedures. As such the abscess described as intersphincteric may have in fact been subcutaneous. A second possible explanation for the development of an intersphincteric abscess and fistula is that the Ultroid therapy caused a perforation of the anal canal. This could occur if the current applied during treatment was too great and caused extensive cautery of the anal canal extending deeply into the anal sphincter. I believe that this is unlikely to have occurred. An abscess and fistula resulting from such an injury is likely to be large and extremely difficult to manage and would likely require multiple procedures. A third possible explanation for the intersphincteric abscess is that it occurs spontaneously and was unrelated to the Ultroid therapy. I believe that this is an unlikely coincidence and that the most plausible explanation is that the anal fissure resulted in a perianal abscess. I believe that the most likely cause of poor outcome [Patient B] had from treatment with Dr Georghy is related to misdiagnosis of her condition and inappropriate performance of an invasive procedure which exacerbated an anal fissure. I do not think that the poor outcome is related to Ultroid therapy specifically, nor is there evidence that the Ultroid procedure was performed incorrectly in itself. I cannot comment on the effectiveness of Ultroid therapy in general nor can I comment on the complication rate associated with Ultroid therapy as I am not familiar with the device and I was unable to find significant published data on the technique."
Dr Sutherland's opinion was that in making an incorrect diagnosis of haemorrhoids in the presence of a fissure Dr Georghy's conduct was below the standard expected of a practitioner with his level of experience and training and particularly in view of his special interest in haemorrhoids.
The Tribunal is satisfied that it has been proved on the balance of probabilities that the Respondent failed to provide adequate information to Patient B in relation to the risks associated with Ultroid therapy.
The Tribunal finds on the basis of the evidence of Dr Young and Dr Sutherland the conduct of the Respondent in that regard was significantly below the standard reasonably expected of a practitioner of a similar level of training or experience and invited strong criticism.
The Tribunal is satisfied that the conduct described in Particular 17 constituted unsatisfactory professional conduct.

Complaint Two

Complaint Two is that the unsatisfactory professional conduct found under Complaint One justifies a finding that the Respondent has:- 1. Engaged in improper or unethical conduct relating to the practice or purported practice of medicine; and/or 2. Contravened s133(1) of the National Law in that the Respondent advertised a regulated health service, or a business that provides a regulated health service, in a way that was misleading or deceptive or was likely to be misleading or deceptive.
Section 133(1) of the National Law prohibits advertising a regulated health service in a way that is false, misleading or deceptive or is likely to be misleading or deceptive. The maximum penalty for an individual is a fine of $5,000.00 and for a company $10,000.00.
The proof of the matters found in respect of Complaint one establishes that the Respondent has breached the subsection by advertising a regulated health service, namely Ultroid therapy, in a way that was likely to be misleading or deceptive.
It was also improper and unethical conduct relating to the purported practice of medicine. The conduct was unsatisfactory professional conduct because it fell within both of para 139B(1) (b) and para 139B(1)(l) of the National Law.

Complaint Two - Particular One

This Particular alleges that the Respondent on his website stated false, misleading or deceptive information about his qualifications, particularly stating:- 1. That he is a Fellow of the Australian Cosmetic Physicians; and 2. That he is a Fellow of the Faculty of Medicine - Australasian College of Cosmetic Surgery.
It is alleged that is contrary to the AHPRA "Guidelines for Advertising Regulated Health Services" published in May 2014.
The Respondent admitted that the allegation in this particular is true and that at the time of the display the information listed in Particular 1 was stated on the website but was false. He claimed that he had previously been a Fellow of each of the organisations, but in each case such Fellowship had lapsed and he was not a Fellow at the time of the website statements.
The Respondent admits that the statement in question is erroneous and says:- "This was an administrative error and the correct name for what he described as Australian Cosmetic Physicians is "Cosmetic Physicians College of Australia" and that the date of the Application for disciplinary proceedings and orders was membership with both organisations had not been renewed."
He alleged in his Reply that he was "unaware that in the event of his membership with the … organisations were not renewed, he could no longer state that he was a Fellow of them".
The AHPRA Guidelines for advertising regulated health services repeat that under s133(1) of the National Law false advertising is prohibited. The maximum fine for an individual breaching that requirement is a fine of $5,000.00.

Complaint Two - Particular Two

Particular 2 of Complaint Two is that the Respondent's website contains misleading or deceptive information in that the advertising of "Intravenous Nutritional Therapy" fails to disclose that the treatment is outside the scope of conventional medical practice. The respondent admitted this in his Reply.
The conduct complained of in Particulars 1 and 2 of Complaint Two in each case constitutes an offence under s133 of the National Law. It is therefore unsatisfactory conduct under paragraph 139B(1)(b) of the National Law.

Complaint Three

Complaint Three is that the Respondent is guilty of professional misconduct under s139E of the National Law.
The Applicant relies upon Complaints One and Two and the Particulars thereof.
The evidence establishes the findings of unsatisfactory professional conduct by the Respondent are so extensive and so serious that when taken together they amount to conduct of a sufficiently serious nature to justify the suspension or cancellation of the Respondent's registration.
Accordingly they together constitute professional misconduct as defined in s139E of the National Law. The Respondent is guilty of professional misconduct.

Complaint Four - Background

The background to Complaint Four is established by evidence in the Applicant's case.

Complaint Four - Particular One

It is alleged in this Particular that between around 14 December 2016 and 16 August 2018 the Respondent breached Practice Condition 3 of the Conditions of his registration in that he consulted, examined, treated and performed procedures on female patients as set out in the schedule attached to the Application and marked "A".
Schedule "A" lists 30 patients and the Applicant's evidence by way of clinical notes and other records proves Particular 1, which was a breach of a condition of his registration. It was also therefore conduct within para 139B(1)(c) of the National Law and included in the definition of unsatisfactory professional conduct ("a contravention by a practitioner, whether by act or omission, of a condition to which the practitioner's registration is subject).
The Particular has been proved and constitutes conduct which is unsatisfactory professional conduct.

Complaint Four - Particular Two

This allegation is that the Respondent on or around 23 August 2018 hindered and/or obstructed the inspection by authorised persons by pushing the file of Patient C into a rubbish bin for the purpose of concealing breaches of Practice Condition 3 contrary to s164C of the National Law. This allegation is proved by the evidence being the transcript of the s150 hearing on 20 September 2018 and the decision of that hearing to suspend the Respondent's registration. There is also further evidence, being supporting evidence before the s150 hearing of photographs of documents and records, a file note of inspection, correspondence between the Applicant and the Respondent and medical records of 33 patients.
That evidence establishes the fact of the entry and inspection of the practice by authorised persons under s164 of the Health Practitioner Regulation.
The evidence includes that when the authorised persons attended the Respondent was observed to push the file of Patient C into a rubbish bin and the reasonable inference is that this was done in order to conceal breaches of Practice Condition 3. Section 164C prohibits a person from hindering or obstructing an authorised person in the exercise of a function conferred or imposed on the authorised person under Division 9 of the National Law which sets out enforcement powers.
The evidence establishes Complaint Four - Particular 2. The conduct also was within the definition of "unsatisfactory professional conduct" in s139B of the Act. Paragraph 139B(1)(b) includes in the definition:- "A contravention by the practitioner (whether by act or omission) of a provision of this law … whether or not the practitioner has been prosecuted for or convicted of an offence in respect of the contravention."
Accordingly the Tribunal finds the conduct in this Particular is proved and constitutes unsatisfactory professional conduct.

Complaint Five

Complaint Five is that the Respondent by virtue of the Particulars of Complaint Four is guilty of professional misconduct.
The nature and number of the breaches in particular 1 of Complaint Four of the Respondent's Practice Condition 3 are serious. The nature and seriousness of the conduct in Particular 2 of Complaint 4 is also serious. Together they constitute proof that the Respondent has engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify cancellation of the Respondent's registration. The Tribunal finds together Complaints Four and Five are established and each constitutes serious professional misconduct. Together they establish that the Respondent has engaged in such serious professional misconduct that his registration should be cancelled.

Conclusions

The combination of the findings in respect of Complaints One to Five require that the practitioner's registration as a medical practitioner be cancelled.
Given that the Respondent is extensively practising in alternate areas of health care, he should be prohibited from providing any health services while unregistered.

Review Application

The findings as to serious professional misconduct required that pursuant to s149C(7) of the National Law the Respondent not be able to apply for a review of the cancellation decision before 4 March 2022.
This Tribunal should be the review body for any such application.

Non-Publication Order

For protection of the privacy of Patient A and Patient B and other patients of the Respondent, a non-publication order should be made.

Costs

The Tribunal's power to award costs is in Cl 13 of schedule 5D of the National Law. It provides that generally costs follow the event (See Health Care Complaints Commission v Philipiah [2013] NSWCA 342). In these proceedings the Applicant sought an order that the Respondent pay the Applicant's costs. The Applicant has succeeded in the proceedings.
Accordingly, there should be an order for the Respondent to pay the Applicant's costs.

Orders

The orders were: 1. The Respondent's registration as a medical practitioner is cancelled pursuant to s149C(1)(b) of the Health Practitioner Regulation National Law (NSW) ("the National Law"). 2. The Respondent may not apply for review of the cancellation order before 4 March 2022 (pursuant to s149C(7) of the National Law). 3. This Tribunal is the review body for any such application. 4. The Respondent is prohibited from providing any health services while unregistered. 5. Broadcast or publication without the leave of the Tribunal of the name or other identifying information of Patient A, Patient B or any patient of the Respondent referred to in the proceedings is prohibited. 6. The Respondent must pay the Applicant's costs of or incidental to the proceedings as agreed or assessed. 7. The Registrar is requested to notify the Medical Council of New South Wales and the Australian Health Practitioner Regulation Authority of these orders as soon as practicable.

I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 April 2019

Health Care Complaints Commission v Georghy

At a glance

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Judgment (39 paragraphs)

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Legislation Cited (1)

Cases Cited (3)