Health Care Complaints Commission v Jangodaz

Relevant Law

The Tribunal was not required to make findings for each particular because they were conceded in writing: s 165H National Law. The disciplinary powers under the National Law were enlivened because the complaints were admitted: s 149(b). The Tribunal was independently satisfied that the complaints were made out to the civil standard in Briginshaw before then proceeding to determine the appropriate protective orders.
The professional members of the Tribunal are entitled to apply their own specialist experience to the evidence in forming opinions about whether there has been a departure from the relevant standard of conduct, with appropriate attention to the expert evidence if there is a genuine difference of view: HCCC v Fraser [2014] NSWCATOD 29 at [238].
'Unsatisfactory professional conduct' is defined in s 139B of the National Law as including: (a) 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. (b) A contravention by the practitioner (whether by act or omission) of a provision of this Law, or the regulations under this Law or under the NSW regulations, whether or not the practitioner has been prosecuted for or convicted of an offence in respect of the contravention. … (l) Any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession.
'Professional misconduct' is defined in section 139E of the National Law 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.
In making a finding of professional misconduct the Tribunal must determine whether "when the respondent's contraventions are considered as a whole, they are of a sufficiently serious nature to justify suspension or deregistration": HCCC v Perroux [2011] NSWDC 99 at [18].
The jurisdiction exercised in making orders is often referred to as 'protective' not punitive: Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 637. In determining the appropriate orders, the paramount consideration is the protection of the health and safety of the public: s 3A of the National Law.
As observed by Basten JA in Prakash v HCCC [2006] NSWCA 153 at [91], and applied by the then Pharmacy Tribunal in HCCC v Lau [2011] NSWPHT 2: The purpose of any order consequent upon a finding that a complaint has been proved, is said to be protective of the interests of the public at large, but more particularly patients or potential patients of the practitioner concerned. However the public interests include indirectly, the standing of the medical profession and the maintenance of public confidence in the high standards...of practitioners. There is also an element of deterrence or, to put it more positively, encouragement to other practitioners to recognize the importance of complying with professional standards and the risks of failing to do so. The powers of a Tribunal having two members of the medical profession should, at least in relation to professional standards be accorded a degree of flexibility which might not necessarily be accorded to a Tribunal differently constituted.
Whether the gravity of the misconduct was such that there is no appropriate alternative to cancellation is a matter of degree and interpretation: Sabag v Health Care Complaints Commission [2001] NSWCA 411 at [82].
Demonstrated current unfitness, not a determination of probable permanent unfitness, is required to justify deregistration: Health Care Complaints Commission v Jamieson [2014] NSWCATOD 56 at [102]; HCCC v Della Bruna [2014] NSWCATOD 31.

Findings and Reasons

The Tribunal is independently satisfied that Complaints Two, Three and Four are established and considered alone each one reaches the standard of unprofessional conduct. We find that the sexual relationship particularised in Complaint One if taken alone is of such a serious nature that it would be sufficient to establish professional misconduct, but that in any case the complaints taken together are of such severity as to cumulatively amount to professional misconduct.
All of the matters complained of flowed from, or were directly related to, the improper sexual relationship.
Dr Jangodaz's evidence was that at the time the relationship commenced he did not appreciate that this was a breach of his professional obligations and that, by ceasing treatment, he did not view Patient A as his patient any longer during the majority of the time the personal relationship was occurring.
Counsel for the practitioner submitted that the therapeutic relationship was brief, most of the relationship occurred after treatment had ended, the patient was not especially vulnerable, and the practitioner did not seek to exploit her. Thus Counsel for the practitioner argued that although unprofessional conduct and misconduct were conceded, this matter should be viewed at the lower end of the scale of seriousness compared to other cases involving a sexual relationship.
Given that the patient in question was plainly socio-economically disadvantaged, that the practitioner's own evidence was that the patient disclosed to him in their second treatment session that she had been subject to domestic violence, and his notes reveal that he thought she was "crazy", the Tribunal rejects the submission that the patient was not especially vulnerable.
Counsel drew attention to the case of HCCC v Eftimoski [2015] NSWCATOD 51 where the HCCC peer expert gave the opinion that "there was nothing in the [dental] code of conduct preventing a sexual relationship with a client" (at [23]), and in which the Tribunal held that the sexual relationship between the dental practitioner and patient, in the circumstances of that case, was unprofessional conduct but not misconduct.
The Dental Board of Australia Code of Conduct ("DBA Code of Conduct" as it was in force in 2013) provides at 3.2 that a good partnership between a practitioner and the person he or she is caring for requires high standards of personal conduct which involves: (g) recognising there is a power imbalance in the practitioner-patient/client relationship and not exploiting patients or clients physically, emotionally, sexually or financially.
The DBA Code of Conduct further provides at 8.2 under "Professional boundaries": Professional boundaries refers to the clear separation that should exist between professional conduct aimed at meeting the health needs of patients or clients and a practitioner's own personal views, feelings and relationships which are not relevant to the therapeutic relationship. Professional boundaries are integral to a good practitioner-patient/client relationship. They promote good care for patients or clients and protect both parties. Good practice involves: (a) maintaining professional boundaries; (b) never using a professional position to establish or pursue a sexual, exploitative or otherwise inappropriate relationship with anybody under a practitioner's care… (c) recognising that sexual relationships with people who have previously been a practitioner's patient or client are often inappropriate, depending on the extent of the professional relationship and the vulnerability of a previous patient or client.
Professional boundaries are not further defined in the Dental Code, but at 1.1 it is noted that: This code is not an exhaustive study of professional ethics or an ethics guide. It does not address the standards of practice within individual health professions or disciplines. These standards of practice are found in documents issued by the relevant boards and/or professional bodies.
Policy Statement 6.5.2 of the Australian Dental Association, "Professional Boundaries" says in its "definition" section (emphasis added): 1.6 Professional Boundary is implicit or explicit demarcation separating the professional relationship with a patient from other personal or business dealings; 1.7 Boundary Crossing occurs when a dentist initiates a behaviour or allows a behaviour to persist in a relationship that compromises or sets a future course that compromises the dentist's relationship with his or her patient. 1.8 Boundary Violation occurs when the nature of the therapeutic relationship moves from a professional relationship to a damaging personal interaction or behaviour, including sexual and non-sexual misconduct… And further, in the "Principles" section (emphasis added): 2.1 Professional boundaries are integral to the practitioner-patient relationship. They promote quality care for patients and protect both parties. 2.2 Boundary violations do not always occur at a single point in time. They can be the cumulative outcome of boundary crossings over a period of time. … 2.5 A boundary crossing may be a subtle event in which the professional either initiates or allows conduct in which there may be a temporary excursion across appropriate professional lines… 2.8 The consent of the patient is never a defence of a violated boundary. And under "Policy": 3.1 Dentists must be aware of their responsibilities regarding professional boundaries and ensure that those boundaries are maintained.
The Tribunal rejects the view that dentists are under any lesser obligation than other health professionals concerning sexual boundary violations with patients. We reject any interpretation based upon isolated wording in the Code (such as "pursue" or "exploit") that suggests "something more" is required of unprofessional conduct through boundary violation in dentistry than the abuse of power which inheres in the professional relationship.
A sexual relationship between practitioner and patient that arises through the therapeutic or clinical relationship is in and of itself inappropriate and a breach of professional boundaries. This is by virtue of the power imbalance which exists between the parties, and the trust that the public must be able to have that their treating health practitioner is motivated by concern for, and attention to, their health care, rather than by another factor, such as sexual or personal gratification.
For the avoidance of doubt the Tribunal emphasises here that our reading of the Code, and of health practitioner standards of professionalism more broadly, is that a sexual relationship between practitioner and patient is prima facie exploitative conduct on the part of the practitioner. And indeed that was the specific finding of the HCCC peer expert in this case, whose evidence was not contradicted, and was also the view of the panel based on the specific agreed facts of this case.
Evidence of a patient's additional vulnerabilities is not required to establish a breach of the professional code or to transform unprofessional conduct into misconduct. Nor is the claim that a patient sought out, initiated, or consented to such an improper relationship germane to the question of whether the standard has been breached. It is the health professional's duty to ensure that such relationships do not occur.
The practitioner's failure to ensure the completion of Patient A's dental work, or continuity of care with another dentist following termination of the treating relationship, is a direct result of his focus upon the personal relationship rather than upon the patient's health care. The practitioner's inappropriate record keeping can also be characterised in this way. The practitioner's attempt to influence the patient to withdraw her claim also demonstrated the blurring of the personal and professional boundaries: although it was clear that Mr Jangodaz was concerned about his livelihood, he was also concerned about his family relationships and personal standing rather than considering the importance of behaving as a professional and upholding the standards required of a health professional - including for example duties of fidelity to one's professional association and candour in legal processes.
The practitioner's failure to take any real responsibility for his professional misconduct was a clear theme that emerged from his evidence.
The practitioner did not express concern about the impact of what had occurred upon Patient A. When outlining his understanding of how to address boundary issues in the future, Dr Jangodaz repeatedly focused only upon protecting his own professional position, not upon ensuring that the patient's care was prioritised.
While the practitioner expressed himself as willing to commit to a course of professional mentoring, undertake training in ethics and boundaries, or pursue psychological counselling, he had not actually done any of these things by the time of the hearing, some two years after the complaint. A single session with a communication coach and speech therapist, undertaken shortly before the hearing, and a commitment to professional development courses more generally, does not address the issues raised.
Dr Jangodaz nominated a named dental practitioner as a mentor whom he consulted, and who would support and assist him, but when questioned acknowledged that this practitioner knew nothing of the complaint or the subject proceedings.
Counsel for the practitioner was at pains to point out that he no longer worked in isolation, as he had at the time of the relevant events, but now had peer support and supervision available to him as part of his practice. However all of these practitioners in his current practice work for Dr Jangodaz, and none are in a supervisory capacity. Moreover none of them are aware of what occurred, or of these proceedings. Indeed Dr Jangodaz's evidence was that he had told no one at all about what had occurred, nor did he plan to do so.
In these circumstances, although the practitioner expressed himself as willing to continue practice under conditions, the Tribunal could have no confidence that such conditions would be met.
While he claimed that his "stupidity" and lack of judgment in entering into the relationship with Patient A arose because he was stressed and over-worked, Dr Jangodaz had not put in place any personal or professional support measures to address his stress or work hours.
In these circumstances the Tribunal was unable to find that the practitioner had taken responsibility for what occurred, or taken steps to ensure that it would not reoccur.
The severity of the misconduct means that deregistration of the practitioner is the only appropriate order to protect the public. Deregistration is required both because of the need to set a clear standard for the profession and clear message to the public about the seriousness of the past conduct, and because the practitioner's inability to demonstrate any real insight or remedial action by the time of hearing, over two years later, gives rise to concern about the practitioner's future conduct.
A period of one year before the practitioner can re-apply for registration is required because anything less would not enable the Tribunal to be satisfied that the practitioner had addressed the issues as identified in this decision.

At a glance

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Judgment (6 paragraphs)

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Legislation Cited (2)

Cases Cited (11)

Cited By (4)