Health Care Complaints Commission v Huber

NCAT Occupational|2017-03-21

REASONS FOR DECISION

On 19 December 2014 the Medical Council suspended the registration of Dr Miodrag (or Michael) Huber, a general practitioner, exercising the applicable power under s 150 [NSW] of the Health Practitioner Regulation National Law (NSW) (the National Law). The Council is entitled by that law to suspend a registered health practitioner's registration for the protection of the health or safety of any person or if otherwise in the public interest.
Dr Huber has not practised since that time. He is now aged 67 years. He graduated MB BS from University of Sydney in 1976, and held registration continuously from April 1977 until his suspension. He then took steps to surrender his registration. For that purpose only, the relevant authority reregistered him on 18 October 2016. He formally surrendered his registration on 3 November 2016. His present status is unregistered.
On 8 April 2016 the Health Care Commission applied to the Tribunal for disciplinary findings and orders against Dr Huber, arising out of the conduct that led to his suspension on 19 December 2014.
As relevant to this case, 'unsatisfactory professional conduct' is defined ( by s 139B(1), 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 or purported practice of the practitioner's profession.
Paragraphs (b) to (k) of s 139B(1) deal with other specific types of conduct that are not raised by this case.
As relevant to this case, 'professional misconduct' is defined (s 139E) as: (a) unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; or (b) 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.

Background

Dr Huber's suspension derived from notifications received by the Australian Health Practitioner Regulation Agency on 30 October 2013 from a sexual assault service in Camperdown and a doctor at the Prince of Wales Hospital that a person, Patient A, had alleged that Dr Huber had engaged in inappropriate conduct towards her, including sexual conduct. (Tabs 3 and 4, Ex A1.) The notifications were referred to the Commission for investigation.
Patient A provided a formal statement to the Commission on 13 July 2014 (Tab 5, Ex A1). She stated that she had first became Dr Huber's patient at the age of 24 or 25 in April, 2007. He practised as a GP in Darlinghurst at the Darlinghurst Medical Centre. He treated her for various conditions, including depression and ADHD and other mental health issues. She referred to a history of prescription of various drugs for the treatment of sleeplessness and depression.
She said that in April 2011 she had nowhere to live after the property she had been leasing was sold, and was homeless. Dr Huber offered her accommodation in a spare room of his home, an apartment in Elizabeth Bay.
She then recounted the development of a social relationship between them. For example, when he came home from work there were drinking sessions. At the time she was taking drugs prescribed by him such as Xanax (alprazolam) and Seroquel (quetiapine). She referred to two incidents of a sexual nature that occurred after one of the drinking sessions, both initiated by Dr Huber. Ultimately, she stayed at Dr Huber's home for more than year. She moved into public housing in July 2012. She remained a patient of Dr Huber until November 2013.
In the statement she referred to an incident that occurred at Dr Huber's home on 28 April 2012. She met a man in King's Cross, and they came back to her room. She said she was drug-affected at the time, because, she said, of -prescription drugs she was taking. They had been prescribed by Dr Huber. She believed that the man tried to rape her, and she stabbed him. She was charged over the stabbing. That matter had not been resolved at the time she gave the statement.
Patient A's statement formed the basis of the Medical Council's notice to Dr Huber to attend a s 150 hearing. Dr Huber attended that hearing, held 19 December 2014 (Tab 24, Transcript). He was suspended form practice at the conclusion of the hearing. Written reasons were issued on 20 January 2015 (Tab 25, Written Reasons for Decision, issued 20 January 2015).
The conduct in issue divides into three categories: 1. the way he prescribed drugs of addiction to Patient A, and in other aspects of the management of her medications (Complaint 1, Particulars 1 to 7); 2. his involvement in an inappropriate personal, and sexual, relationship with Patient A (Complaint 2, Particulars 1, 2, 4 and 5); and 3. his provision of statements to various bodies (a hospital, the police and a court) in support of Patient A that are said to have been false and misleading insofar as he failed to reveal the nature of his relationships with Patient A (Complaint 2 Particulars 6, 7 and 8).
Dr Huber has not filed a formal statement in these proceedings. His response is confined to his Amended Reply handed up at hearing on 21 March 2017. It used as its template his Reply as originally filed, and showed the variations between that Reply and his Amended Reply. It is plain that the amendments made by the Commission to its original Complaint did respond to some of the denials he made in his original Reply, and the relevant allegations were withdrawn.
Dr Huber did not attend our hearing. He was represented by Mr S Barnes of counsel, instructed by Mr Lee, solicitor. The only evidence we have from Dr Huber is that found in the s 150 transcript, and in correspondence with the Commission during 2014.
In both his original Reply and his Amended Reply he accepted that in relation to the matters admitted by him he should be found guilty of both unsatisfactory professional conduct and professional misconduct.
Mr Barnes acknowledged to the Tribunal that his client's conduct was of a kind that would justify an order of deregistration. He noted that his client had surrendered his registration. He had been instructed that his client's current intention was not to seek to return to the practice of medicine.

Whether the Tribunal should have regard to Patient A's statement

In advance of the hearing, Dr Huber had required Patient A for cross-examination. She did not attend. That this might occur had been canvassed at a directions hearing in November 2016. Counsel for the Commission submitted to the Tribunal that her non-attendance was not surprising in light of the medical history revealed by the material before the Tribunal.
While acknowledging that the Tribunal is not bound strictly by the rules of evidence in making findings of fact, Mr Barnes moved that the whole of Patient A's statement made 14 July 2014 (Tab 5, Ex A1) not be received into evidence, though there were only two contested issues of fact at the hearing to which her evidence was relevant (Complaint 2, Particulars 2(a) and 2(b)).
In rejecting that application, the Tribunal noted that these proceedings have as their object the protection of the public and the maintenance of proper standards of professional practice. The way in which the evidence of an absent witness is to be dealt with is not governed by the standards that might apply to a criminal trial or civil litigation of a private character.
Patient A's statement had been known to Dr Huber for a long time, it had provided the foundation for many of the matters alleged against Dr Huber, and Dr Huber had had ample opportunity to make a statement that replied to its detail, and had not done so (other than as occurred in the s 150 hearing, and by the admissions contained in Amended Reply). A practitioner is duty-bound to co-operate with disciplinary processes, and that includes providing the relevant authorities with a candid, and comprehensive reply to complaints made against him, in this instance to the statement of Patient A relied upon by the Commission. While Dr Huber had co-operated with the s 150 proceeding, and placed his version of some matters on the record, he had not extended that co-operation to the current proceeding.
While it was not ideal that Patient A chose not to make herself available for cross examination, it does not follow that no regard at all should be given to what she had said in her statement that went beyond the matters admitted by Dr Huber. Its principal elements had, in effect, been accepted by Dr Huber's various admissions: the longevity of the treating relationship; the nature of the illnesses of Patient A and treatments and referrals provided; the existence of a personal relationship in the latter period of that time; and the occurrence of sexual contact; and there was no denial of the fact that he made the statements in her support to various authorities.
Patient A's statement was corroborated at many points by other evidence (for example, statements by Dr Huber at the s150 hearing, clinical records, hospital attendance records). At hearing counsel for the Commission took us through the corroborating material. This account was not contested by counsel for the respondent. Counsel for the Commission argued that as Patient A's statement was consistent with other evidence where corroboration could be found, we should incline to the view that the statement overall represented a genuine and honest attempt to deal with her relationship with Dr Huber, and be inclined to accept the parts of the account that were not corroborated elsewhere in the material before us.
There is ample evidence, for example, that Patient A's addictive behaviour extended to excessive consumption of alcohol, and that she and Dr Huber regularly engaged in drinking sessions.
The submission of Dr Huber's counsel was directed, in reality, to removing from view Patient A's statements as they related to the two disputed particulars regarding the events of the evening sexual contact took place.
As to those matters, counsel for the Commission pressed the Tribunal to make findings, and drew to the attention of the Tribunal contextual information that might support the making of an adverse finding. He also drew attention to the principle that a witness's failure to give evidence may give rise to an adverse inference after fair consideration of any circumstances that might reasonably explain the absence. The expectation that a practitioner should appear and give evidence, is a concomitant of the duty of a member of a profession to make full and frank disclosure of misconduct. For comprehensive discussions of these principles as they might apply in the context of the health professions, see, Health Care Complaints Commission v Wingate (2007) 70 NSWLR 323 per Basten JA at [42] to [50]; Lucire v Health Care Complaints Commission [2011] NSWCA 99 at [124]-[141] per Basten JA. See also, the discussion in Meakes v NSW Bar Association [2006] NSWCA 340 at [70]-[78] where a firm view was expressed by Tobias JA, in particular, as the gravity of a failure by a legal practitioner to appear and give his or her account to the professional disciplinary tribunal in relation to the conduct under notice.
As stated in its submissions, the Commission is required to prove the conduct alleged to the standard required in civil proceedings, the balance of probabilities, informed by the seriousness of such a finding in the case of grave allegations, referring to Briginshaw v Briginshaw (1938) 60 CLR 336 and recent examinations in the context of health discipline of the well-known observations of the bench in that case: for example, Forster v Hunter New England Area Health Service [2010] NSWCA 106; Health Care Complaints Commission v Smith [2015] NSWCATOD 85 at [131] to [134]. Moreover the Tribunal is required to deal with a complaint particular by particular. It cannot simply decide that a complaint is proven in its general terms, and not attend to some or all of the particulars. See, generally, Lucire per Basten J at [43].
While we will not exclude Patient A's evidence from consideration , we will have regard to its untested nature in the weight to be accorded to it in contested areas, despite the absence of Dr Huber, for which we have no explanation.

Prescription of Drugs to Patient A (Complaint 1)

We will deal first with Complaint 1, containing various allegations relating to Dr Huber's prescription of drugs of addiction to Patient A. There are seven Particulars.
Each of Particulars 1 to 6 refer to his administration of scheduled drugs to Patient A: three Schedule 4D drugs - diazepam (Particular 1); alprazolam (P2); temazepam (P3); and the more tightly regulated Schedule 8 drugs of addiction - oxycodone (P4), flunitrazepam (also known as, Hypnodorm and also Rohypnol) (P5 and P6). Dr Huber does not dispute the facts upon which the Commission relies. He does not dispute that he prescribed the drugs for Patient A's use over the following periods and in the quantities described in the Commission's evidence: diazepam (April 2007 to February 2012) (P1); alprazolam (August 2008 to March 2010) (P2); temazepam (October to December 2011) (P3); oxycodone (single script, 23 October 2011) (P4); and flunitrazepam (also known as Hypnodorm and also Rohypnol), June 2007 to August 2013) (P5). As to Patient A's use of flunitrazepam, there is a further allegation (P6) that he brought that medication home for her use between April 2011 and November 2013. This is not disputed.
In the case of P1 to P4, it is alleged that he administered those drugs: (a) without exercising responsible medical judgment; (b) in circumstances where consideration should have been given to possible side effects or combined effects with other medications, noting Patient A's long history of alcohol abuse.
Dr Huber denies that he had prescribed the drugs in the way suggested by allegations (a) and (b).
The Commission relied on an expert report from Dr Emery Kertesz, a highly experienced general practitioner, with substantial experience as a mentor and clinical lecturer. Dr Kertesz attended our hearing, gave evidence and was cross-examined.
We have reviewed the treatment records and the prescriptions schedule forming part of the Commission's evidence.
It is plain from Patient A's own account of her medical history (in her statement), as corroborated by the clinical records from Dr Huber's practice (Tabs 37 and 38) and other treatment records (for the period from 1 February 2011 to 30 April 2014, Tabs 39 to 44), that during the period Dr Huber treated her she had a range of illnesses, some simultaneously, and they were often of a substance abuse or mental health character. There are repeated references to her having a drinking problem, involving regular excessive consumption of alcohol.
In a report provided to the Commission for these proceedings, Dr Christopher Pollock, psychiatrist, noted that Dr Huber had initially referred Patient A to Dr Pollock in July 2011. Dr Pollock noted that at that time he formed the opinion that she suffered from Adult Attention Deficit Disorder (ADD), and had significant difficulties with anxiety and alcohol which he attributed to her Adult ADD. He said he added at that time that her alcohol use would make it difficult for her to benefit from the use of psychostimulants.
Dr Kertesz considered that a general practitioner would normally prescribe the drugs under notice in a staged manner, starting with a low dose, say 2 mg of diazepam, and increasing the amount depending on results.
In cross examination, Dr Kertesz acknowledged that the prescription records showed that Dr Huber had prescribed dosages in relation to each of the benzodiazepines that were orthodox in their amount and frequency in the case of a usual patient. He said that there was nothing inappropriate about dosages used especially because of Patient A's history of alcohol abuse. To that extent, they were each, viewed in isolation from each other, in line with usual medical judgment.
However, he queried the variety of benzodiazepines being prescribed over common periods, and found it disturbing that Dr Huber had prescribed three or four different ones without any formal plan of administration or prescribing. Moreover, there was no evidence from the treatment records that he had considered the combined effects of a prescription approach of that kind.
Dr Kertesz noted that the degree of prescribing in which Dr Huber engaged had occurred in spite of his being aware of her vulnerability to alcohol in social quantities as well as excesses. He considered that Dr Huber's conduct fell significantly below the standard of a practitioner of equivalent level of training and experience at the time in question. He gave a similar answer in relation to the occasion of the one script of Oxycodone.
In his report he noted that the benzodiazepines prescribed fell broadly into two categories - those seen to have less serious potential adverse consequences at that time (for example temazepam, diazepam, oxazepam, see P1 and P3), and those that have grave potential adverse consequences (and belong to the Sch 8 group, flunitrazepam and alprazolam), because they are highly addictive and used almost exclusively in the management of severe sleep disorder or severe panic disorder.
Dr Huber's counsel argued at hearing that in light of Dr Kertesz's replies in cross examination we should conclude, so far at least as Particulars 1 to 4 were concerned, that the Commission had not made out its case that he had failed to exercise responsible medical judgment.
In our view, Dr Kertesz's conclusions are well-founded. Patient A was a patient with a complex continuing history of alcohol abuse and mental health issues. The records do not demonstrate careful attention to the possibility of causing further addiction illness and the harmful interactions of drugs or the particular matters that justified the prescription of the Sch 8 drugs.
In the absence of any evidence on these matters from Dr Huber, we, like Dr Kertesz, are guided by the medical records, and conclude that he did not give attention to the possible consequences of his prescribing and provision of these medications to Patient A .
Moreover, we note that this is not a case that can readily be assimilated to the category of a usual doctor-patient consultation, as counsel sought to do in cross-examination. Dr Huber was in a personal relationship with the patient in the period under notice, and that of itself militated against the responsible exercise of medical judgment. It presented a conflict of interest of a substantial nature. The nature of the personal relationship is, in our view, relevant to the assessment of the practices the subject of Complaint 1, and cannot be segregated in the way suggested by Dr Huber's counsel.
Professional detachment lies at the heart of the exercise of responsible medical judgment. The practitioner must take care not to allow a personal friendship to intrude on, or impair, the exercise of professional judgment. Dr Huber failed to maintain objectivity and acceptable professional boundaries from the point when he invited his patient to move into his home. In the absence of preservation of objectivity by becoming personally involved with his patient his medical care, including prescribing conduct was compromised. What followed complicated that primary error as evidenced by inappropriate prescribing, engaging in drinking sessions with his patient and by engaging in a sexual relationship with his patient, as is dealt with later.
In the case of Particular 5 (prescription of flunitrazepam in the period June 2007 and August 2013) and Particular 6 (in the period April 2011 to November 2013 bringing medication home for Patient A, which included flunitrazepam), the allegation is that he did so: (a) without exercising responsible medical judgment; (b) for a period exceeding 2 months without obtaining an authority to prescribe drugs of addiction, contrary to s 28(2) of the Poisons and Therapeutic Goods Act 1966 (PTG Act); and (c) in circumstances where consideration should have been given to possible side effects with other medications, noting Patient's A long history of alcohol abuse.
As to part (b) Dr Huber has conceded that he should have obtained an Authority. As to parts (a) and (c) of the above we repeat our observations in relation to Particulars 1 to 4. The Particular is established.
Particular 7 dealt with a separate aspect of the treatment relationship. The allegation is: Between April 2011 and November 2013 he failed to adequately communicate, monitor, advise and liaise with and compare management of Patient A's various illnesses with treating psychiatrists in relation to: (a) Patient A's response to medication, particularly the interaction of the two medications Dexamphetamine and Flunitrazepam and their interaction with alcohol; and/or (b) possible abuse of medication.
The Particular is not admitted. In our view the Particular is established.
We have reviewed the mental health service and psychiatric records found in the Commission's bundle at Tab 39 (Royal Prince Alfred Hospital, February 2011-March 2014), Tab 40 (psychiatrist Dr Pollock's records, 8 May 2011-26 July 2013), Tab 41 (St George Hospital, 18 July 2012), Tab 42 (psychiatrist Dr Jonathan Carne's records, 19 November 2012 to 21 January 2013), Tab 43 (clinical psychologist Mr Sam Borenstein's records, 28 October 2013 to 30 April 2014). They show little to no interaction between Dr Huber and the treating services and practitioners.
As an example of the inadequacy of Dr Huber's advice to the treating services and practitioners, we refer to an example highlighted by the Commission in its written submissions. On 28 April 2012 an altercation occurred between a male visitor to Dr Huber's home and Patient A which led to criminal charges being laid against Patient A. Dr Huber referred her to the RPA Hospital for attention. Dr Huber gave advice to the psychiatric registrar at the RPA Hospital and stated that Patient A did not have any mental health concerns and was suitable for counselling. Just four weeks before he had stated in a Centrelink certificate that she was unfit for work or study for a period of 3 months, having been diagnosed with severe anxiety and significant depression, with recurrent panic attacks, poor sleeping and concentration and persistent tiredness for which she was receiving medication, counselling and psychiatric advice. He failed to give information of this kind to the psychiatric registrar. We return to this matter in dealing with Complaint 2.

Personal and Sexual Relationship with Patient A (Complaint Two, Particulars 1, 2, 4)

Dr Huber admits Particular 1, i.e.: Around mid-April 2011, the practitioner failed to maintain proper professional boundaries when he invited Patient A to live with him in his apartment in Elizabeth Bay, a private residence.
In relation to Particular 2, he has admitted that on a date between June and July 2011 he: engaged in improper and sexual contact with Patient A during which he: (c) performed oral sex on Patient A; and (d) digitally penetrated Patient A.
He denies the following allegations, that he: (a) shared at least a bottle of scotch whisky with Patient A in circumstances where he knew of Patient A's history of abuse of alcohol and the medications that he had prescribed and provided to her; (b) received oral sex from Patient A.
Dr Huber admitted amended Particular 4, which is that: In June 2012 the practitioner failed to maintain proper professional boundaries when he provided Patient A with $6,500.

Consideration of Particulars 2(a) and (b)

Dr Huber has admitted that in April 2011 he invited Patient A to live in his private residence, and made a bedroom available to her. He has admitted that between June and July 2011 he engaged in improper physical and sexual contact with Patient A during which he performed oral sex on Patient A; and digitally penetrated Patient A.
She gives an account at paragraph [19] of her statement in relation to what occurred on the evening of 9 July 2011 is likely to be accurate. It is in this account the allegation relating to consumption of a bottle of Scotch whisky appears. She says: It was shortly after my birthday on 9 June 2011, Dr Huber came home from work in the afternoon and we had a massive drinking session. It was just the two of us. We stayed up all night drinking the alcohol from his liquor cabinet. I think at least we drank an entire bottle of Scotch. At the time I was think I was on medication, although I cannot recall exactly what I was on. I think maybe Dr Huber was giving me Xanax and Seroquel. Often these would not be prescription; he would just give them to me. I know that he has a locked drawer in his surgery where he kept the drug samples; I think this is mainly where he kept drug samples; I think this was mainly where these drugs came from.
The Particular, as pressed by the applicant, focuses on a detail of the drinking session, that they 'shared at least a bottle of scotch whisky' with its connotation that an entire bottle was consumed by them. We think we should be cautious in accepting Patient A's statement to that level of detail although her report of them drinking together is accepted to have taken place.
Patient A's account is that it was a heavy drinking session, and she was on prescription drugs at the time. Her ability to remember the detail of the occasion would, we consider, have been likely impaired, and the statement was made more than two years after the event. She used the expression 'I think' at a number of points in the statement. She was not able to be cross-examined. We do not think the evidence as it stands amounts to a proof of sufficient exactness (Briginshaw per Dixon J) to justify an adverse finding against Dr Huber on the point. Particular 2(a) is not proven.
In paragraphs [18] to [20] Patient A goes on to describe the further events of that night, which resulted in sex between Dr Huber and her.
The dispute is over whether he 'received oral sex from Patient A'. This is a reference to conduct that Patient A says occurred in the lounge room before they moved to Dr Huber's bedroom. She described receiving his penis into her mouth, and she said they engaged in fellatio. She gives further details of what occurred in paragraph [19]. Dr Huber denies that event.
He does admit the next event that is recalled by Patient A, which occurred after they had moved to his bedroom. In paragraph [20] she describes the detail of what occurred between them. Dr Huber has formally admitted that he performed oral sex on her and digitally penetrated her.
Counsel for the Commission submitted that in light of Dr Huber's acceptance of the events that occurred in his bedroom, and the accuracy of Patient A's recollection in that regard, we should be inclined to accept her account of what had already occurred in the lounge room, and prefer that to his denial.
We have to make a finding based entirely on what is said in the statement, without hearing directly from Patient A. We are asked to infer from Dr Huber's failure to attend that the evidence he had to offer would not have assisted him, and take that inference into account.
In her statement Patient A expressed some surprise as to her ability to recall anything about that night given that she was 'off the Richter scale intoxicated' over the 24 hour period.
In our opinion, her written statement alone is not sufficient for us to make a positive finding as to whether Dr Huber received oral sex from Patient A. There are similar difficulties to those that affected the allegation about the consumption of an entire bottle of Scotch whisky.
Particulars 2(a) and 2(b) are not proven. Particulars (c) and (d) are proven.
In regard to these findings, we consider, in response to a submission by counsel for Commission as to the approach we should take, that this is not a case equivalent to Health Care Complaint Commission v Marino [2016] NSWCATOD 37. There the Tribunal did proceed to make a finding that the practitioner and a patient had sex on a particular evening, even though he had appeared at the Tribunal, denied the allegation, given evidence, was cross-examined, and she had not made herself available to give oral evidence and be cross-examined. The Tribunal decided that at [81] there were 'so many instances where her statement on matters that were able to corroborated has been corroborated hat we are prepared to accept her unsworn and untested statement' as to the sexual encounter. In our opinion this is not a case of that degree.

Statements to Authorities in support of Patient A (Complaint Two, Particulars 5, 6, 7 and 8)

Particular 5 is admitted, i.e.: Between December 2011 and February 2013 the practitioner inappropriately completed Centrelink medical certificates for Patient A, attesting to her unfitness for work or study for 3 months at a time, on a continuous basis in circumstances Patient A had commenced living with him in April 2011.
Detail as to the contents of the Centrelink certificate are given in Particular 6.
Particular 6 is that: On 28 April 2012 the practitioner gave advice to the psychiatric registrar at RPA Hospital which was false or misleading when he stated that Patient A did not have any mental health concerns and was suitable for counselling, in circumstances where the practitioner completed a Centrelink medical certificate for Patient A on 27 March 2012 in which he stated that she was unfit for work or study for a period of 3 months having being diagnosed with severe anxiety and depression, with recurrent panic attacks, poor sleeping and concentration and persistent tiredness for which se was receiving mediation, counselling and psychiatric treatment.
Dr Huber admits he provided a Centrelink certificate but denies the balance of the Particular.
This Particular and the two that follow have as their context an event at Dr Huber's home in the early hours of 28 April 2012. Patient A had brought home a man that she had met in King's Cross. There had been an altercation (according to Patient A, he had attempted to rape her), and Patient A stabbed the man. According to his statement to police made 29 April 2012 (see P7, below), Dr Huber had left for work when all this happened. The police attended the scene, around 7am. She was later taken to the RPA Hospital to be examined as a sexual assault patient. Dr Huber furnished the information to which this Particular refers to the psychiatric registrar when Patient A was admitted. She was later charged with the offence of malicious wounding. She was found guilty at the Local Court. There was an appeal to the District Court. Its outcome is not revealed by the material before us.
In his reply, he said that in the course of his discussion with the psychiatric registrar he did raise these matters and her health history, and they 'agreed' that as at the date of presentation she did not have mental health concerns amounting to a mental illness and she was suitable for counselling and ongoing therapy with her treating psychiatrist, Dr Pollock.
We have no direct evidence from Dr Huber as to his account of the discussion between him and the registrar.
Patient A's medical history as recorded in the material before us demonstrated, as at 28 April 2012, serious addictive behaviours (alcohol and the abuse of medications), and concurrent conditions of a kind that would, in the mind of a competent practitioner, raises concerns as to her state of mental health, and the need for mental health assessment and treatment. It is plain, we think, that Dr Huber had himself recognised that in his Centrelink certificate given only a few weeks before.
Dr Huber's statement was, clearly, misleading. As he did in relation to the two Particulars that follow, he contested any finding that his statement was false in the sense that he intended at the time to make a false statement. We think it is more likely than not that Dr Huber knew what he was saying was filtered, and false because it was so far from the truth of the matter. In our view, it is sufficient to dispose of this point by making a finding that the statement was false in the sense that it would be seen by a reasonably minded person, conversant with the circumstances and history of Patient A, as false, whatever the subjective state of mind of Dr Huber may have been.
We therefore find the statement to have been both false and misleading.
Dr Huber accepts the factual detail of Particulars 7 and 8. The Particulars are: 7. On 29 April 2012 the practitioner made a statement to the NSW Police in connection to a criminal matter concerning Patient A, which was false and/or misleading, in that he described Patient A as his 'friend', and did not disclose his personal relationship with Patient A. 8. On 11 October 2012 the practitioner wrote a character reference for Patient A addressed to the Presiding Magistrate at Kogarah Local Court which was false and/or misleading, in that he did not disclose that Patient A was living with him or that he was her treating general practitioner.
In our view, the allegations are made out. A medical practitioner is expected to behave in an ethical and responsible way in the statements that they furnished to authorities. His relationship with Patient A amounted to more than that of a 'friend'. He should have given a brief description at least of the nature of the relationship, so as to assist the police in making an assessment of the weight and value of the statement. By being evasive on the matter, he placed any prosecution case at the risk of a surprise attack from the defence on the value and weight to be given to his statement. Similarly, his failure to inform the magistrate of the true nature of his relationship meant the magistrate could not make a fully informed evaluation of the strength and value of his reference. The statements were false (at least in the sense we have explained the matter in connection with P6) and misleading insofar as they concealed the true extent of his relationship with Patient A.
As the Commission submitted, his behaviour on the three occasions referred to in P6, P7 and P8 compromised the candour that he should have had, both with a treating psychiatrist, the Police and the Courts.

Assessment

We have found proven all the particulars of the complaints as relied upon by the applicant in the proceedings, but for Particular 2(c) and 2(d) of Complaint 2.
It is clear that Dr Huber breached appropriate professional boundaries in a very serious way. He does not deny that. He accepts that his conduct justifies a finding of professional misconduct. He has given up the practice of medicine. His disagreements, as these reasons have noted, were with aspects of the particulars, most significantly the allegations relating to kind of sexual contact that occurred between him and Patient A on the evening of 9 June 2011.
Dr Huber would, we think, like all medical practitioners, have been aware of the standards to be observed in their relationship with patients. It is always the responsibility of the treating practitioner to maintain the professional boundary with their patient. Medical practitioners should not view their patient as potential participants in personal relationships. Ethical considerations emphasise as a priority the need to preserve professional boundaries. It would appear that Dr Huber had developed a level of closeness in his personal relationship with Patient A by 2011 that should have led him to refer her to another doctor. He did not do that. Then the relationship developed to the extent that he invited into his home to live, and they socialised there, leading two months later to the drinking session and sexual contact that was the subject of Complaint 2. Patient A was 30 years younger than Dr Huber, about 29 or 30, when she moved into his home. She had very serious health problems, as we have noted, primarily alcohol abuse. This was not a relationship of equals, she was in a highly vulnerable situation, and her feelings and emotions were easily able to be manipulated.
As noted by Brennan, Deane, Toohey and Gaudron JJ in R v Byrnes (1995) 183 CLR 501 at 514-5: Impropriety consists in a breach of the standards of conduct that would be expected of a person in the position of the alleged offender by reasonable persons with knowledge of the duties, power and authority of the position and the circumstances of the case.
In Richter v Walton (NSW Court of Appeal, 15 July 1993, unreported), Priestley JA said: The degree of trust, which patients necessarily give to their doctors may vary according to the condition which takes the patient to the doctor. Even in regard to the most commonplace medical matters the trust a patient places in a doctor is considerable. In some cases, ... the patient's trust cannot help but be almost absolute. The doctor's power in regard to the patient in such cases is also very great. I do not mean power in an abstract way, but as a matter of fact; the extent of the power will vary according to the temperament of the patient, but the doctor with some patients and for limited periods, because of the relationship in which they are temporarily placed, is in a position to do whatever the doctor wants with the body of the patient. This is one of the reasons why doctors are subject to correspondingly great obligations, and are expected to maintain very high standards: all this being very much in the public interest.
It is not necessary to have any close knowledge of the detail of the various policies and guidelines that have been issued to medical practitioners in relation to observation of appropriate professional boundaries to understand that the conduct the subject of these proceedings was so inappropriate and unethical that it amounts to professional misconduct.
The relevant policies and guidelines were in the material presented to the Tribunal, and included: Medical Council of New South Wales, Policy, Sexual Misconduct (as in force 4 December 1991 to 8 November 2011); Medical Board of Australia (MBA), Sexual Boundaries: Guidelines for doctors (28 October 2011); and MBA, Good Medical Practice: A Code of Conduct for Doctors in Australia (March 2014).
Similarly the failures identified in relation to his prescription of the scheduled drugs were repeated, spread over many years, and continued after Patient A had moved into his home. They were of a degree and frequency that a finding of professional misconduct would be warranted in relation to Complaint 1, alone.

Appropriate Orders

Dr Huber was aged 57 and a practitioner of 30 years' standing when he began treating Patient A. As noted in Patient A's statement, he had treated Patient A's mother in the past. Patient A was 24 or 25 years old when he began treating her. Dr Huber's early career had an emphasis on child health and paediatrics with a particular interest in children with physical and learning disabilities. His early career included a period working in those fields in London, UK. He has a research and publication record in these fields.
He then moved to general practice. He practised as a solo GP at Epping in Sydney from 1987-2004. He took up practice at the Darlinghurst Medical Centre in 2004, and treated Patient A there. There is no evidence before us of any prior disciplinary history.
Dr Huber does not oppose the Commission's submission that orders be made as follows:

that if he were still registered, the Tribunal would have cancelled his registration (National Law, s 149C(4)(a)).
that he be disqualified from being registered and not become eligible for application for reregistration for a period of three years from the date of these orders (s 149C(4)(b)).

He submitted that the period of disqualification should start from the date of his suspension, with the result that it would end on 19 December 2017 rather than at a date in or around May, 2020 that is three years from the date of the making of these orders.
He made no submission in relation to the following proposed orders:

that the National Board record the fact that his registration would have been cancelled if he were registered (s 149C(4)(c).
that he pay the Commission's costs of the proceedings.

The Commission also sought in its submissions at hearing a Prohibition Order pursuant to s 149C(5)(a), that he be prohibited from providing any health service as defined in s 4 of the HCCC Act while his not registered as a medical practitioner (s 149C(5)(a)).
In its disciplinary application the Commission did list the possibility of a prohibition order in a catalogue that mentioned several possible disciplinary sanctions. The Commission did not in preparation for the proceedings make it clear that it would press at hearing for such an order, and did not give Dr Huber an opportunity to respond. As it is an order that is not usually sought in disciplinary proceedings, we think it should have provided greater notice.
Mr Barnes submitted that the treatment aspects of the matter were not significant enough to warrant a prohibition order.
We note that there is, however, evidence in this case of predatory conduct by Dr Huber. It may be that that factor and other considerations provide a basis for a prohibition order.
However, there were no detailed submissions in support of that case. Nor was there any evidence, beyond the matters the subject of this case, which might allow us to find comfortably that Dr Huber might be likely in future to engage in forms of work, for example to seek to take advantage of his prior status as a registered medical practitioner, such that it may pose 'a substantial risk to the health of members of the public' (s 149(5) and (5A)).
The final matter is whether to backdate the disqualification. If we were to accede to his submission, he would be able to apply for reregistration as from the end of this year.
Disciplinary orders serve the purpose of public protection. They also provide a marker for the profession of the level of disapproval that will be attached to the conduct found proven in the proceedings. In this instance there was a serious violation of the trust of a young, vulnerable woman with significant problems of addiction. There were clear failures in the practitioner's decision making in relation to the prescribing of medications. His entry into a personal relationship with her was unethical and improper. It was a serious boundary violation in its own right, compounded by the kind of socialising in which they engaged at home, and the particular events of the evening of 9 June 2011. While Patient A lived in his home for another year after that, clearly she remained in a vulnerable and dependent relationship to him. This kind of arrangement with any patient, let alone one who is vulnerable and dependent in the way we have described, is to be condemned, and needs to be condemned in severe terms, as a warning to all practitioners.
We have nothing from Dr Huber that might suggest he is on a path that might justify an earlier consideration of his case for reregistration were he to pursue that course in future.
The usual approach is that disqualification orders run from the date of the final orders in proceedings of this kind. We see no reason to depart from that approach. We see no reason to fix a lesser period of disqualification than 3 years. We think a disqualification of that duration is in the public interest. We are mindful, given Dr Huber's age, that this may well mean that he has no realistic possibility of being able to return to the profession, given the currency of experience requirements that face practitioners wishing to return to the profession after an extended period of absence.
There is no reason not to make the usual order for costs. Orders The Tribunal finds the respondent guilty of professional misconduct. If the respondent were still registered the Tribunal would have cancelled his registration (see s 149C(4)(a) of the National Law).
The respondent is disqualified from being registered in the health profession and is not eligible to make application for reinstatement to the register for a period of three years from the date of these orders (s 149(4)(b)).
The National Board with which the respondent was registered is required to record the fact that the Tribunal would have cancelled the respondent's registration in the National Register kept by the Board (s 149C(4)(c)).
The respondent is to pay the applicant's costs of the proceedings, 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: 09 May 2017

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Judgment (10 paragraphs)

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Cases Cited (8)

Cited By (2)