Health Care Complaints Commission v Johnson

NCAT Occupational|2023-10-26|Before: Dr P

person set out in the Schedule to the Application (described as patient A in these Reasons) is prohibited. 2. If an Application is made by any person to view NCAT file no 2022/00374377, then, before access to the file is permitted, notice is to be given to the parties of that Application and the parties are to be given the opportunity to be heard on the Application, before it is determined.

REASONS FOR DECISION

This matter was before the Tribunal for the hearing of an Application by the Health Care Complaints Commission (HCCC) for disciplinary findings to be made in relation to a psychiatrist, Dr Luke Johnson.
The Application raises three issues. The first is whether Dr Johnson failed to maintain appropriate proper professional boundaries with a patient. An order has been made prohibiting the disclosure of the identity of the patient under s 64 of the Civil and Administrative Tribunal Act 2013. We have referred to her as patient A.
The second relates to his treatment of patient A including the inappropriate prescription of medication. The third is whether Dr Johnson failed to keep adequate records of his treatment of patient A.
The HCCC asks for Orders cancelling Dr Johnson's registration and preventing him from applying for a review of that Order for one - two years.
Dr Johnson does not contest every matter raised by the HCCC and accepts that his conduct dictates the imposition of a protective Order. He says that the appropriate Orders would be a reprimand with a continuation of the conditions currently imposed on his registration or alternatively suspension of his registration limited in time if there is a finding of professional misconduct.

The Practitioner

Dr Johnson was born in 1971. He graduated with MBBS from Flinders University in 2001 and obtained his FRANZCP in 2009. From 2004 to 2009, the practitioner worked as a Senior Registrar at Noarlunga Health Services in South Australia while working towards his RANZCP fellowship. Dr Johnson was registered as a psychiatrist in 2009. Since 2009, he has worked as a private psychiatrist in Wagga Wagga as a sole practitioner.
From 7 April 2016 until about June 2017 Dr Johnson provided psychiatric care and treatment to patient A.

The Oral Evidence given to this Inquiry

Dr Johnson gave evidence and was cross examined.
Patient A did not give any oral evidence.
Two psychiatrists, Dr Wright and Dr Ryan, gave expert evidence and were cross examined.
Dr O'Dea, who is Dr Johnson's treating psychiatrist, and Dr Saboisky, who was appointed Dr Johnson's supervisor pursuant to the conditions placed on Dr Johnson's registration on 15 March 2021, both gave evidence and were cross examined.

The Facts

Dr Johnson was the only witness to give oral evidence in relation to the course of his relationship with patient A.
In 2016 patient A, who was then 20, consulted a general practitioner ("GP") complaining of worsening symptoms of depression, anxiety and insomnia in the context of a long standing mood disorder. The GP referred patient A to Dr Johnson for assessment and management due to her "long standing complicated history".
While she was on Dr Johnson's waiting list, the GP saw patient A twice and recorded that she had reported overwhelming anxiety, panic attacks, intrusive thoughts and paranoia.
Patient A consulted Dr Johnson on over a hundred occasions between 7 April 2016 and late June 2017. Psychotherapy treatment was initially provided in person at Dr Johnson's practice and then via telehealth.
At the first consultation on 7 April 2016, patient A told Dr Johnson that she had struggled with depression and anxiety since she was a teenager, with a history of an eating disorder and deliberate self-harm. She was stressed by her studies, had recently experienced paranoia after drinking alcohol to excess and smoking cannabis and was experiencing insomnia, low energy and impaired judgement.
Dr Johnson diagnosed patient A as suffering from Major Depressive Disorder, Cannabis Use Disorder and Borderline Personality Disorder. Dr Johnson said his goal in treating patient A had been to assist her to develop coping skills and strategies to stop her sabotaging her own life.
Dr Johnson said that in the period leading up to the consultation with patient A on 18 October 2016, he had been under a lot of stress. Up until the end of September 2016 he had been working very long hours to be able to pay the deposit on a property. He was married but they were not getting along, and he felt they were going separate ways. His home had been the target of an attempted and unsuccessful home invasion in October 2015 after which he and his wife slept with loaded guns beside their beds. He believed that there had been a second unsuccessful home invasion on 17 October 2016 during which his wife had pointed a loaded shotgun at him.
Dr Johnson said that in October 2016 he knew it was a very serious transgression of the rules governing the conduct of psychiatrists to enter into a relationship with a patient. He knew that the College had a "zero tolerance policy" in regard to sexual boundary violations, so that once a relationship had developed, there was no way forward.
Dr Johnson said that during the consultation with patient A on 18 October 2016 he had mentioned his wife. Patient A said, "I don't want to talk about her", and shut down, and then said, "I want to talk about us". Dr Johnson said he was taken aback as the thought of a relationship with her had not crossed his mind. He replied "What do you mean" to confirm that that was what she really wanted. She replied, "I want to talk about a real relationship" and said she wanted him to move to Sydney with her. Dr Johnson said that he identified very, very strongly with her, found her attractive and saw the proposal as an escape from the various stressors he had in his life at that time.
When giving evidence before us, Dr Johnson said that during this consultation and over the next few weeks, he felt as if he was in a disconnected dream-like state which he attributed to being very stressed by all of the events which had occurred in the preceding weeks and the very recent attempted home invasion.
Dr Johnson saw patient A again on 21, 25 and 28 October 2016 and said they had both been in a daze while he was trying to work out what was happening.
The next consultation was on 1 November 2016, which he described as "Chernobyl". Patient A was continuing to express feelings for him. He said to her "If you feel like that you should cross the floor". He explained that he was calling her bluff to test whether a relationship was possible because he wanted to escape his life. She became very angry and he said that the situation escalated very quickly because she was terrified he would abandon her.
From 1 November 2016 Dr Johnson was in daily phone contact with patient A.
Dr Johnson said he still believed that he could somehow regain control of the situation. He saw her as an emergency consultation on 4 November 2016. His notes relevantly say "Progress: Expressing worsening suicidal ideation in context of move to Sydney. Describing hopelessness in face of move. Sense of unreality worsening. Mental State: Mildly dysphoric, restricted range, themes of abandonment and derealisation."
Dr Johnson used unusual language to describe to us his conduct in November and December 2016. On several occasions he said he had been trying to "contain" the situation which, he explained, meant that he paid patient A compliments and told her that he liked her, in order to be supportive, because he hoped he could get things under control. If he tried to pull back by reducing their level of contact, he said there would be "drama". Dr Johnson gave as an example the incident referred to in his note dated 7 December 2016. He said he had tried to pull back and patient A responded by using cannabis. The note relevantly says: 7/12/16 Progress: Discussed issue of boundaries. Mental state improving after cannabis induced psychotic episode over weekend….
Dr Johnson said that he had been unsuccessful and she remained in control and he was "at her beck and call" and "at her whim" even though he had been cured of the desire to escape.
Dr Johnson went to Sydney on 23 December 2016. By then patient A was living in Sydney. He said he would always tell patient A where he was to avoid an escalation. However she did not tell him that she was coming to his hotel. He said he was asleep at 9.30 when she called him from the lobby and he went down to have a drink with her in the bar. After they had the drink, she came up to his room, they kissed, she got angry and said she was going to kill herself when she left. He said he placated her by suggesting lunch the next day. She left and they did have lunch together on the following day.
They continued the therapeutic relationship by Telehealth.
Sometime in early February 2017, patient A's relative had died, which had a significant emotional effect on her. Dr Johnson was told that it was the first time she had experienced death in her immediate family.
Dr Johnson described the events leading up to the commencement of their sexual relationship in February 2017 as follows: I don't know if this is true, but it felt like to me that she would do things to essentially provoke situations and maintain my concerns, and that continued right through to the sort of peak of that when she gets drunk, takes a couple of ecstasy tablets, and … tells me that she makes a pass at a boy she's liked … I think it was early February, and then the following week, I'm going through to Adelaide to see my friends via Sydney, and that was the time in February that she comes to the hotel.
Dr Johnson continued to treat patient A until 16 June 2017. They continued their relationship after the therapeutic relationship ended. Dr Johnson said that after February 2017 he paid for everything.
On 20 July 2020 the HCCC received a complaint reporting that Dr Johnson had engaged in a personal relationship with patient A which had begun during the therapeutic relationship and continued after the therapeutic relationship had ended.
Section 150 of the Health Practitioner Regulation National Law (NSW) (the National Law) permits the Medical Council of NSW (the Council) to impose conditions on or to suspend the registration of a medical practitioner for the protection of the public or where it is otherwise in the public interest. Action taken under s 150 is interim in nature.
On 25 February 2021 delegates of the Council resolved for s 150 proceedings to be convened.
The hearing was held on 15 March 2021. Dr Johnson attended the hearing by videoconference, was legally represented and gave oral evidence.
After the hearing was completed, the delegates of the Council decided to impose conditions on Dr Johnson's registration pursuant to s 150(1)(b) of the National Law. Those conditions, which commenced on 15 March 2021, are set out in full in Appendix A to these Reasons. They included a prohibition on Dr Johnson consulting, examining, treating or performing any procedures on any female patient. A copy of the decision was provided to the HCCC.
The HCCC referred the matter to the Director of Proceedings under s 39(1)(a) of the Health Care Complaints Act 1993, to determine whether to prosecute a complaint before a professional disciplinary body.
The Application for disciplinary findings and Orders was filed on 12 December 2022.

Establishing the Complaint - Legal Principles

The onus is on the HCCC to establish the various matters raised in the Application. To make any such finding we must be "comfortably satisfied" that the matter has been established on the balance of probabilities: Briginshaw v Briginshaw (1938) 60 CLR 336.
The HCCC asserts in its Application that the conduct described in Complaints One, Two and Three are unsatisfactory professional conduct as defined in s 139B(1). The relevant subsections are the following: (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 (Complaints One and Two). (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 (Complaint Three). (l) Any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession (Complaint One).
In relation to s 139B(1)(a), determining whether conduct is significantly below a reasonable standard requires the Tribunal to make an objective assessment with reference to the standards of the profession generally. (Lucire v Health Care Complaints Commission [2011] NSWCA 99 at [82] per Basten J). Guidance on whether a departure from that standard is significant can be taken from the established principle that the term "may in law be taken to mean not trivial, of importance or substantial" (Re A Medical Practitioner and the Medical Practice Act, (NSWMT, 3 September 2007, unrep) at [12]). The Tribunal may apply the specialist expertise of the Panel in making this determination (Health Care Complaints Commission v Bainbridge [2018] NSWCATOD 169 at [16]).
In relation to s 139B(1)(l) the terms improper conduct and unethical conduct are not defined in the National Law. They should be given their ordinary meaning (Health Care Complaints Commission v Daniel [2022] NSWCATOD 104 (at [16] - [18]).
The relevant ordinary meanings of improper include "not in accordance with truth, fact reason or rule; abnormal, irregular; incorrect, inaccurate, erroneous, wrong" (Parker v Comptroller of Customs ([2009] HCA 7). If Dr Johnson's conduct was not in conformity with standards of professional conduct and practice it may be regarded as improper (R v Byrnes (1995) 183 CLR 501 at 514-515).
Unethical conduct is arguably a more serious matter than improper conduct. "Unethical" is defined in the Macquarie Dictionary as meaning immoral or contrary to moral precepts and, secondly, as relating to contravention of a professional code of conduct.

The Complaint

There are four Complaints made by the HCCC.

Complaint One

Complaint One relates to Dr Johnson's relationship with patient A.
The HCCC says Dr Johnson is guilty of unsatisfactory professional conduct under s 139B(1)(a), and/or (I) of the National Law.
Dr Johnson denies that he is guilty of unsatisfactory professional conduct.

Particulars of Complaint One

The HCCC says that: 1. on 18 October 2016, Dr Johnson failed to maintain appropriate professional boundaries with patient A in that, during a consultation, he inappropriately discussed with patient A the prospect of commencing a personal relationship. Dr Johnson admits particular (1). 1. Dr Johnson failed to maintain appropriate professional boundaries with patient A when on numerous occasions from about October 2016 to June 2017, he inappropriately contacted patient A by telephone and on Skype without any therapeutic purpose. Dr Johnson admits particular (2), except for the allegation that he contacted patient A by Skype which is not admitted. 1. Dr Johnson failed to maintain appropriate professional boundaries with patient A in that from about December 2016 to February 2017, he inappropriately engaged in a personal relationship with patient A, in circumstances where there was an ongoing therapeutic relationship between him and patient A. Dr Johnson admits particular (3). 1. On 23 December 2016, Dr Johnson failed to maintain appropriate professional boundaries in that: 1. he inappropriately agreed to meet patient A at a hotel without any therapeutic purpose; 2. he inappropriately consumed alcohol at a bar with patient A; 3. he inappropriately allowed patient A to come to his hotel room; 4. he kissed patient A. Dr Johnson admits particular (4). 1. Dr Johnson failed to maintain appropriate professional boundaries with patient A in that from about February 2017 to June 2017, he inappropriately engaged in an intimate and/or sexual relationship with patient A, in circumstances where there was an ongoing therapeutic relationship between him and patient A. Dr Johnson admits particular (5). 1. From about October 2016 until June 2017, Dr Johnson failed to: 1. terminate the therapeutic relationship with patient A; 2. consult a senior colleague for advice, 3. in circumstances where: 1. on or about 18 October 2016, patient A had expressed romantic feelings towards him; 2. from around December 2016 to February 2017, he had engaged in a personal relationship with patient A; 3. from around February 2017 to June 2017, he had engaged in an intimate and/or sexual relationship with patient A. Dr Johnson admits particular (6). 1. From on or about late June 2017 until July 2020, Dr Johnson inappropriately engaged in a personal and sexual relationship with patient A, in circumstances where the practitioner had recently been in a therapeutic relationship with patient A. Dr Johnson admits particular (7) save as to whether or not the therapeutic relationship was "recent".
The HCCC says that the conduct in any of particulars 1 to 7 of Complaint One is relied upon individually or in combination as a course of conduct amounting to unsatisfactory professional conduct.

Findings of fact

The only significant factual dispute with respect to Complaint One concerns particular 1, that is whether, during the consultation on 18 October 2016, Dr Johnson discussed with patient A the prospect of commencing a personal relationship.
There was no evidence from patient A.
There is no reference to such a discussion in Dr Johnson's notes for this consultation.
Counsel for Dr Johnson submitted that the boundary violation only occurred later in October 2016. However, we are satisfied that the evidence establishes that this occurred at this consultation on 18 October 2016. In making this finding we have taken into account the following: 1. Dr Johnson's evidence in the s 150 hearing was ambiguous - that at the consultation on 18 October 2016 he "responded by seeking confirmation that that's what she really wanted". 2. In cross-examination at the hearing before us, Dr Johnson denied that he said "OK" to patient A at that consultation. However, as we have already noted, Dr Johnson also said that at around this time he felt as if he was in disconnected dream-like state and his memory of the events was fragmented. 3. Dr O'Dea's notes of his consultation with Dr Johnson on 18 November 2020 state that he did agree to patient A's proposition: Tuesday 18 Oct 2016 (patient A) said to run away with me That was when I made my catastrophic mistake Said OK Did something completely out of character 1. The evidence relating to the consultations on 21, 25 and 28 October 2016 is consistent with an ongoing discussion from 18 October 2016 about running away together. For example, Dr Johnson told the s 150 hearing that at the consultations on 18, 21 and 25 October, the sessions "were supercharged, basically contemplating what this would look like, and obviously the more I was thinking about this, the worse it looked, and I was starting to recover from what happened, but it was too late." 1. Dr Johnson told us that on 18 October 2016 he had been highly sceptical about whether patient A was attracted to him, and they explored this at the next two consultations, interrogating the desire for a relationship. 2. Dr O'Dea's notes of 25 November 2020 state that Dr Johnson described the following three sessions as "sexual charged". 3. It is admitted in Dr Johnson's reply.
We are satisfied that the evidence stablishes, to the requisite standard, that on 18 October 2016 Dr Johnson did either agree to or encourage patient A into thinking that a personal relationship was possible.
Further, Dr Johnson admits, and we accept, that he failed to maintain appropriate professional boundaries with patient A when: 1. on numerous occasions from October 2016 to June 2017, he inappropriately contacted patient A without any therapeutic purpose. 2. from December 2016 to February 2017, he inappropriately engaged in a personal relationship with patient A while they had an ongoing therapeutic relationship. 3. on 23 December 2016 he met patient A at a hotel without any therapeutic purpose, consumed alcohol at a bar with her, allowed her to come to his hotel room and kissed her. 4. from February 2017 to June 2017, he engaged in an intimate and/or sexual relationship with patient A when they had an ongoing therapeutic relationship. 5. from 18 October 2016 until June 2017, he failed to terminate the therapeutic relationship with patient A and/or consult a senior colleague for advice in circumstances where patient A expressed romantic feelings towards him on 18 October 2016, he engaged in a personal relationship with her from December 2016 to February 2017 and he engaged in an intimate and/or sexual relationship with her from February 2017 to June 2017. 6. From late June 2017 until July 2020, he inappropriately engaged in a personal and sexual relationship with patient A, when he had been in a therapeutic relationship with her.

Expert evidence

It is common ground that there is an absolute prohibition on the breaching of sexual boundaries between a psychiatrist and a current or former patient.
Dr Wright considered that all of Dr Johnson's conduct set out in Complaint One fell significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience, being the test set out in s 139B(1)(a) of the National Law.
Dr Ryan said he did not have enough information to form a view about particular 1 but, with respect to the other particulars, he agreed that Dr Johnson's failure to maintain appropriate professional boundaries fell significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience on the basis, among other things, that it is unethical for a psychiatrist to enter into an intimate relationship with either a current or former patient.

Complaint One - Finding

We have found all of the particulars of Complaint One have been proven.
Paragraph 2.3 of the RANZCP Code of Ethics says: 2.3 Sexual relationships between psychiatrists and their current and former patients are always unethical.
RANZCP Ethical Guideline No.12 (March 2016) says: Good medical practice relies on trust between doctors and patients and their families. It is always unethical and unprofessional for a doctor to breach this trust by entering into a sexual relationship with a current or former patient, regardless of whether the patient has consented to the relationship or not. In psychiatry, the obligation to avoid unethical or unprofessional behaviour is particularly important because of the intense therapeutic relationship with patients and the powerful emotional forces that can be released during treatment. The RANZCP has a zero tolerance policy to proven sexual boundary violations ... Zero tolerance means that the RANZCP will not tolerate a proven sexual boundary violation of any kind between psychiatrists and their current, or former patients, regardless of whether they were consensual.
We find, bearing in mind the expert evidence and the RANZCP ethical principles, that Dr Johnson's conduct from 18 October 2016 to July 2020 in relation to patient A as set out in particulars (1) - (7) was unsatisfactory professional conduct under both subss 139B(1)(a) and (I) of the National Law.

Complaint Two

Complaint Two relates to Dr Johnson's conduct after his therapeutic relationship with patient A ended in 2017.
The HCCC says that Dr Johnson is guilty of unsatisfactory professional conduct under section 139B(1)(a) of the National Law.
Dr Johnson denies that he is guilty of unsatisfactory professional conduct.

Particulars of Complaint Two

The HCCC says that: 1. In or around June 2017, following the termination of his therapeutic relationship with patient A, Dr Johnson failed to appropriately transfer care of patient A to patient A's treating practitioners, including that he: 1. failed to inform patient A's treating or referring GP or other treating practitioner of the termination of his therapeutic relationship with patient A; 2. failed to provide to patient A's treating or referring GP or other treating practitioner a summary of treatment provided by him to patient A; 3. failed to provide to patient A's treating or referring GP or other treating practitioner a plan for mental health treatment for patient A. Dr Johnson admits particular (1). 1. On 2 June 2017, Dr Johnson arranged for a Magnetic Resonance Imaging (MRI) scan for patient A. He failed to: 1. appropriately communicate with any other practitioners regarding the suitability of the MRI investigation; 2. appropriately communicate with any other practitioners in relation to whether any further follow up consultation was appropriate. Dr Johnson admits particular (2). 1. On each of the following dates, Dr Johnson inappropriately prescribed the Schedule 4 drug Hydroxychloroquine to patient A: 1. 12 February 2020; 2. 12 March 2020 on two occasions; 3. 13 March 2020; 4. 14 March 2020; 5. 15 March 2020, in circumstances where: 1. his scope of practice was in psychiatry and the prescribing of this drug was not for purposes within his scope of practice; and 2. his therapeutic relationship with patient A had ceased in June 2017 and he was in a current sexual relationship with patient A. Dr Johnson denies particular (3). 1. On each of the following dates, the Dr Johnson inappropriately prescribed the Schedule 4 drugs listed below to patient A: 1. Fluoxetine on 19 March 2020; 2. Metoclopramide on 22 May 2020; 3. Diazepam on 10 July 2020, in circumstances where his therapeutic relationship with patient A had ceased in June 2017 and he was in a current sexual relationship with patient A. In answer to particular (4), Dr Johnson: (a) admits paragraph (i); (b) does not admit paragraph (ii); (c) denies paragraph (iii).
The HCCC says that the conduct in any of particulars 1 to 4 of Complaint Two is repeated and relied upon individually or in combination as a course of conduct amounting to unsatisfactory professional conduct.

Complaint Two particular 1

Dr Johnson does not dispute, and we find, that he did not transfer the care of patient A to alternative treating practitioners in June 2017.
The effect of the evidence of Dr Johnson was that, early in their relationship, he suggested to patient A that he would transfer her care to a psychiatrist in Sydney but she declined. After that conversation there was no further discussion concerning the transfer of care, the subject was "done and dusted" because she had "all the power in the relationship".
It was the evidence of Dr Wright that the standard of practice accepted by the majority of Dr Johnson's peers includes a requirement to arrange alternative care at the earliest recognition that sexual boundaries are under threat or have been breached. If the patient declines the referral the doctor should insist that the therapy will be terminated whether or not a further referral to a specialist is accepted and with communication to the patient's treating doctor.
In Dr Ryan's opinion, in a situation where professional boundaries have been breached, a doctor should cease treating the patient, and take steps to transfer the patient to another therapist. If the patient resists transfer to another therapist the involvement of another practitioner, such as a GP, could assist in getting the patient to change therapists. He agreed that, subject to the consent of the patient, the doctor should at least inform the patient's GP of the termination of the therapeutic relationship.
Dr Johnson did not inform any other doctor that he had terminated his therapeutic relationship with patient A in June 2017. There is nothing in his notes to suggest that he had formed the view that there was no need for ongoing therapy.
We are satisfied Dr Johnson's failure to inform the treating GP in June 2017 that he had terminated the therapeutic relationship with patient A was conduct significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience and thus unsatisfactory professional conduct.

Complaint Two particular 2

Dr Johnson does not dispute, and we find, that he referred patient A for an MRI on 2 June 2017.
Dr Johnson's notes do mention patient A's ongoing complaints of back pain. Dr Johnson told us that he wanted patient A to have her back condition sorted out and treated and that he was routinely asked for MRI referrals by patients on advice from their GP. Of course this was not the case in relation to patient A, - Dr Johnson did not write the referral on advice from a GP.
At the s 150 hearing Dr Johnson said that MRIs ordered by GPs are expensive but MRIs ordered by psychiatrists are cheap. He was aware that patient A was seeing other doctors and that her GP could have referred her to an orthopaedic surgeon or a neurosurgeon, but he "had completely lost control of the therapeutic relationship by then, and did not feel I was in any position to contact anyone" about patient A.
Dr Wright's opinion was that the investigation, assessment and management of patient A's back pain fell outside the scope of practice and expertise for a psychiatrist, and the majority of psychiatrists of similar training and background would not play any role in the investigation or management of their patient's back pain. At most, he would expect a psychiatrist to raise any concerns about the investigation of back pain with the patient's treating GP or arrange referral to a more appropriate specialist to conduct a more appropriate examination and investigation. He was of the view that Dr Johnson arranging the investigation fell below but not significantly below the standard of accepted practice because on occasions psychiatrists do arrange investigations for matters outside their expertise as a matter of expediency. However Dr Johnson's failure to communicate with a GP and/or a more appropriate specialist regarding the suitability of the investigation, or further follow up, was significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience.
Dr Ryan, in his report, said there are situations where a psychiatrist might reasonably and legitimately order an investigation that would normally be ordered by a GP or specialist in the relevant field, such as where a psychiatrist feels that the result of the investigation might help to clarify the patient's psychiatric presentation. That, however, is not the evidence in these proceedings - Dr Johnson did not say that the result of the MRI might help to clarify patient A's psychiatric presentation.
Dr Ryan then said that further complicating the situation was that, by this time, Dr Johnson was in an intimate relationship with patient A. It was unwise, but common, for doctors to organise relatively straightforward investigations for those with whom they are in intimate relationships, most often as a matter of convenience. In most such cases, communicating the outcome of the investigation to other practitioners in relation to whether any further follow-up consultation is appropriate. Again, this is not the evidence in these proceedings - there is no evidence of Dr Johnson communicating the outcome of the investigation to any other practitioner.
In cross examination in these proceedings Dr Ryan agreed that the conduct breached Cl 3.14 of Good Medical Practice: A Code of Conduct for Doctors in Australia published by the Medical Board of Australia and that the Code applied to Dr Johnson. It says: Personal relationships: Whenever possible, avoid providing medical care to anyone with whom you have a close personal relationship. In most cases, providing care to close friends, those you work with and family members is inappropriate because of the lack of objectivity, possible discontinuity of care, and risks to the doctor and patient. In some cases, providing care to those close to you is unavoidable. Whenever this is the case, good medical practice requires recognition and careful management of these issues.
We find that Dr Johnson did not communicate with any other treating doctor either before or after the investigation in circumstances where patient A's back pain could have been caused by a number of different medical conditions. Thus the decision as to whether an MRI scan was needed could only be made by a medical practitioner familiar with the differential diagnoses, the investigations already undertaken (if any) and the appropriateness of an MRI scan at that time. In addition, the outcome of the MRI (and the scans) had not been provided to any other doctor qualified to treat patient A's back condition to assist them with diagnosis and management.
Lastly, this was not a situation where it was unavoidable for the medical care to be provided as outlined in the Code of Conduct for Doctors.
We find that Dr Johnson's conduct in arranging the MRI scan for patient A and not communicating with any other practitioners regarding either the suitability of the investigation before it was done or the outcome of the investigation after it was done is conduct significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience and thus unsatisfactory professional conduct.

Complaint Two particulars 3 and 4

Dr Johnson does not deny prescribing Hydroxychloroquine, Fluoxetine, Metoclopramide and Diazepam to patient A, although he says he does not remember prescribing Metoclopramide. The prescribing is established by the documents in evidence.

Hydroxychloroquine

The HCCC accepted that the Hydroxychloroquine had been prescribed by Dr Johnson at the commencement of the COVID lockdown when there were concerns around potential shortages and that it had been previously prescribed for patient A by her rheumatologist. The HCCC did not make submissions in relation to this particular.
We decline to find that Complaint Two particular 3 has been proven.

Fluoxetine

Fluoxetine is an antidepressant and belongs to a group of medicines known as selective serotonin reuptake inhibitors (SSRIs).
Dr Johnson said he had prescribed Fluoxetine on 19 March 2020 at the start of the COVID-19 lockdowns, as his family were subject to significant stressors and he wanted to have the medication on hand if required. It was never used. He accepts this was not appropriate prescribing conduct.
This evidence discloses that Dr Johnson wrote a prescription in the name of patient A but intended to provide the medication to his then family members which did not include patient A.
We agree with Dr Wright when he said that such conduct is a deception. We do not accept that it was incumbent on counsel for the HCCC to put this to Dr Johnson in cross examination - the fact comes from Dr Johnson's statement dated 13 October 2023.
We are satisfied that this is conduct which demonstrates that the judgment possessed by Dr Johnson is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience and is thus unsatisfactory professional conduct.
Complaint Two particular 4 (i) has been established.

Metoclopramide

Metoclopramide is a dopamine receptor antagonist and is used to treat nausea and vomiting.
As we have already said, Dr Johnson does not remember prescribing Metoclopramide. He said he regularly prescribed it during his internship and residency. Dr Johnson accepts that this was not appropriate prescribing conduct.
Dr Wright said that the generally accepted standard of care for all medical practitioners, including psychiatrists, is that prescriptions should not be provided to friends, colleagues, family members or intimate partners. Once the therapeutic relationship had ended it was inappropriate for Dr Johnson to prescribe any medication for patient A, and his prescription of these medications is conduct that falls below the standard reasonably expected of a practitioner of an equivalent level of training or experience, given that such prescribing may have further inhibited patient A's willingness to engage appropriately with other health practitioners.
Dr Wright did not consider the conduct to be significantly below the relevant standard.
We note that it was a single prescription for a commonly used medication.
We decline to find that this conduct is significantly below the relevant standard and thus Complaint Two particular 4 (ii) must fail.

Diazepam

Diazepam is a fast-acting, long-lasting benzodiazepine commonly used to treat anxiety disorders and alcohol detoxification, acute recurrent seizures, severe muscle spasms, and spasticity associated with neurologic disorders.
Dr Johnson said that patient A had been bitten by a redback spider and was agitated and in considerable pain. After consultation with a nurse practitioner at a hospital Emergency Department, he prescribed Diazepam to patient A, as he was told that symptomatic management was the primary mode of treatment. He said he regarded this as an emergency prescription.
There has been some evidence as whether Diazepam is an appropriate medication for pain relief. However, accepting the evidence of Dr Johnson that he did it on advice from staff at an Emergency Department of a hospital we consider that this is permitted by the Guidelines as it was in the nature of an emergency.
Accordingly the HCCC has not established Complaint Two particular 4 (iii).

Complaint Three

Complaint Three is concerned with Dr Johnson's medical records.
Schedule 4 to the Health Practitioner Regulation (New South Wales) Regulation 2016 provides in clause 3: (1) In general, the level of detail contained in a record must be appropriate to the patient's case and to the medical practice concerned. (2) A record must include sufficient information concerning the patient's case to allow another medical practitioner to continue management of the patient's case.

Particulars of Complaint Three

The HCCC says that: 1. on or about 19 April 2016 until about 22 June 2017, Dr Johnson failed to make and keep adequate records in relation to patient A, including: 1. failing to keep a record of a treatment plan for patient A; 2. failing to keep a record of any formal communications with treating practitioners; 3. failing to record an appropriate level of detail of the treatment provided to patient A.
Dr Johnson denies that he failed to make and keep adequate records.
The submissions by the parties were directed to the 48 entries which were made while Dr Johnson had both a therapeutic and personal relationship with patient A - ie from 18 October 2016 to 22 June 2017.
We find firstly that the records from 18 October 2016 to 22 June 2017 are obviously incomplete as there is no reference to the relationship.
We accept the submission made by counsel for the HCCC that the notes from 18 October 2016 onwards suggest the continuation of a typical course of therapy, with general progression by patient A, which does not reflect the reality of what had occurred. It would give no indication to another practitioner reviewing the file of the significant boundary breaches that were ongoing.
Counsel for Dr Johnson submitted that we should accept the opinion of Dr Ryan and find that the insufficient record keeping was part of a "flow-on" effect of the original ethical breach, and should not be considered as a separate failure of a standard of practice.
We decline to accept this characterisation of Dr Johnson's conduct. Dr Johnson failed to keep records which included sufficient information concerning patient A's case to allow another medical practitioner to continue management. His motive for doing so is irrelevant.
In addition to the failure to refer at all to the relationship, we accept the opinion of Dr Wright and find that Dr Johnson's records from 18 October 2016 are scant and inadequate overall. The documentation of treatment plans is lacking substance and detail and there is no evidence of any formal communication with other treating practitioners. This would be a further factor preventing another practitioner who takes over the care of patient A from being able to sufficiently understand the nature and progress of treatment with patient A.
We also agree with Dr Wright's view that Dr Johnson's failure to communicate in writing with patient A's GP or any of her other treating doctors, or in the alternate, to document in the file any instances of verbal communication with her GP or other practitioners, is conduct that falls significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. We understand from the evidence of Dr Johnson that at some stage he felt as if he had completely lost control of the therapeutic relationship and did not feel he was in any position to contact anyone about patient A.
We find that the state of the records from 18 October 2016 does not comply with the standard set out in the Health Practitioner Regulation (New South Wales) Regulation 2016. It is thus unsatisfactory professional conduct.

Complaint Four

Complaint Four asserts that Dr Johnson is guilty of professional misconduct under section 139E of the National Law. That section provides: For the purposes of this Law, "professional misconduct" of a registered health practitioner means- (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 Chen v Health Care Complaints Commission [2017] NSWCA186 at [20], Basten JA explained: There is no category of unsatisfactory professional conduct which is not capable, depending on the circumstances, of giving rise to professional misconduct and hence engaging the power of either suspension or cancellation of registration. The only requirement is that it be "sufficiently serious" to justify such an order, a characterisation which must depend upon an evaluative judgment made by the Tribunal. Some, perhaps all, categories include conduct which may reveal a defect of character as to which the Tribunal may conclude that the person should not be allowed to practise his or her profession unless at some future date the practitioner is able to satisfy the Tribunal that the defect has been overcome. Incompetence or inadequate care may in some circumstances be remediable by specific steps; in other circumstances the Tribunal may be concerned that the carelessness, for example, is such as to cast doubt on the suitability of the person to practise medicine. Each of the criteria for cancellation or suspension may be analysed in this way. Each case will depend upon an evaluative judgment to be made by the Tribunal as to the nature and seriousness of the conduct.
Dr Johnson accepts that the conduct in Complaint One could form the basis of a finding of professional misconduct.
Counsel for Dr Johnson submitted that we should not make such a finding because Dr Johnson has sought to be honest and truthful.
We find that Dr Johnson is guilty of professional misconduct for the following reasons.
As we have already said, the RANZP has a zero tolerance policy on sexual boundary violations. The Guidelines spell out why this conduct is unethical and harmful. Doctors are expected to act in their patient's best interests and not use their position of power and trust to exploit patients physically, sexually, emotionally or psychologically. Breaching sexual boundaries is always unethical and usually harmful for many reasons including the power imbalance which arises because the doctor-patient relationship is inherently unequal. The patient is often vulnerable and in some clinical situations may depend emotionally on the doctor. To receive healthcare, patients are required to reveal information that they would not reveal to anyone else and may need to allow a doctor to conduct a physical examination. A breach of sexual boundaries in the doctor-patient relationship exploits this power imbalance.
In relation to Dr Johnson's conduct, even without the benefit of patient A's evidence, it is clear from the medical records that he knew that she was an extremely vulnerable patient with longstanding mental health issues.
There was also a significant age gap which we consider was likely to have exacerbated the inherent inequality in their relationship.
In addition, Dr Johnson's capacity to provide objective specialised advice and support to patient A for her potentially chronic relapsing conditions with significant risk of morbidity, ceased when they developed a personal and then, later, a sexual relationship.
We accept the evidence from Dr Wright that, for a variety of reasons it is not uncommon for a patient who has been involved in an inappropriate sexual relationship with a previous therapist to disengage from appropriate treatment. Indeed the evidence of Dr Johnson suggests that this has occurred in this case.
We also accept the evidence of Dr Wright that a patient may also lose confidence that future clinical needs will be treated appropriately, reflecting a loss of trust in the medical profession, to the detriment of his or her overall health. We do not know whether this has in fact occurred. But Dr Johnson's conduct did lead to a risk of this occurring.

Protective Orders

We have found Dr Johnson guilty of professional misconduct and therefore the range of protective orders which can be made include suspension or cancellation of his registration (s 149(C)(1)(b) of the National Law).
However the fact that we have found that Dr Johnson's conduct was of a sufficiently serious nature to justify suspension or cancellation of his registration does not mean it must be suspended or cancelled.
The purpose of disciplinary orders is protective rather than punitive. (Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630, at 637).
The protection of the health and safety of the public is a paramount consideration (s 3A of the National Law).
In Health Care Complaints Commission v Do [2014] NSWCA 307 at [35] the Court held: The objective of protecting the health and safety of the public is not confined to protecting the patients or potential patients of a particular practitioner from the continuing risk of his or her malpractice or incompetence. It includes protecting the public from the similar misconduct or incompetence of other practitioners and upholding public confidence in the standards of the profession. That objective is achieved by setting and maintaining those standards and, where appropriate, by cancelling the registration of practitioners who are not competent or otherwise not fit to practise, including those who have been guilty of serious misconduct. Denouncing such misconduct operates both as a deterrent to the individual concerned, as well as to the general body of practitioners. It also maintains public confidence by signalling that those whose conduct does not meet the required standards will not be permitted to practise.
In Director-General, Department of Ageing, Disability and Home Care v Lambert [2009] NSWCA 102 at [83] the Court held: As is well-established in the disciplinary jurisdiction generally, including with respect to legal and medical practitioners, the specific purpose for which orders are made is protective in the public interest and is not punitive with respect to the individual … That is not to deny that such orders may be punitive in effect…Nor does it necessarily follow that punitive effects may not be relevant in formulating a protective order. … Further, the punitive effects may be directly relevant to the need for protection. Thus, in a particular case, there may be a factual finding that the harrowing experience of disciplinary proceedings, together with the real threat of loss of a livelihood may have opened the eyes of the individual concerned to the seriousness of his or her conduct, so as to diminish significantly the likelihood of its repetition. Often such a finding will be accompanied by a finding that the person concerned has achieved a level of insight into his or her own character or misconduct, which did not previously exist.
As to the setting of a period in which an application for re-registration is prohibited, the Tribunal in Health Care Complaints Commission v Luque [2019] NSWCATOD 129 noted at [94]: The setting of a non-review period is not to punish the practitioner but to protect the public. NSW Court of Appeal jurisprudence has indicated that the fixing of a period of non-review has a 'twofold operation' in that it firstly indicates a minimum period within which the Tribunal considers the person should not be able to practise their profession, thus serving both an individual and general deterrence purpose by sending a message to the practitioner, the public and the profession about professional standards and the seriousness of the breach; and secondly it holds open to the practitioner the possibility of return to the profession at a later time: Chen v HCCC [2017] NSWCA 186; HCCC v Do [2014] NSWCA 307.
However, any protective orders made by the Tribunal should not result in "more serious consequences for the practitioner than is reasonably necessary in execution of the protective purpose of the legislation" (NSW Bar Association v Meakes [2006] NSWCA 340 at [114]).
In determining the appropriate protective Orders we have taken the following matters into account: 1. Our findings as to the seriousness of Dr Johnson's conduct in engaging in a relationship with patient A when we determined Complaints One and Four. 2. A boundary violation is an abuse of the doctor-patient relationship. It undermines the trust and confidence of patients in their doctors and of the community in the medical profession and can cause significant and lasting harm to a patient. 3. This is not a situation where the practitioner has failed to act in accordance with expected standards or depart from ethical standards on only one occasion. 4. Dr Johnson has not shown us that he has any meaningful insight into the harm his behaviour could cause to a person in the position of patient A. Dr Johnson knew on 18 October 2016 that the Code of Conduct prohibited a sexual relationship with a patient. Dr Johnson must also have known, as a psychiatrist, of the potential for harm to a vulnerable patient if he entered into a personal relationship with that patient. Dr Johnson's initial reaction was to blame external causes, being the various stressors in the months leading up to 18 October 2016, for his behaviour. That is evident from his evidence at the s 150 hearing. We find that Dr Johnson still blames external causes and has not moved on to accept responsibility for his behaviour and feel empathy for the potential consequences of his behaviour on patient A. This is also the view of his treating psychiatrist Dr O'Dea who said that Dr Johnson needed to move from allocating blame to external stressors to himself to achieve insight. He felt narcissism was playing a role. The entry in Dr O'Dea's notes on 24 June 2021 relevantly says "Limited insight. Poor grasp of narcissism. Discussed narcissism." Dr O'Dea described Dr Johnson, in his report dated 6 September 2023, as speaking about his predicament in a self-focused manner which, he told us, was a reference to narcissism. He described Dr Johnson as more focused on his own needs so that he was likely to put his own needs first. He said that discussing a shift in Dr Johnson's focus to the impact on patient A had been a theme in their sessions. He believes that Dr Johnson is still in the process of gaining insight. We consider that the language used by Dr Johnson in his description of the relationship with patient A is also consistent with his lack of insight. We have already mentioned some of this evidence earlier in these Reasons. He spoke of the relationship as not being a "love fantasy" but rather that he initially used patient A as "a means to an end" because he "wanted to escape". Later on she gained control and manipulated him and, by the time he came to his senses, it was far too late. He was "resigned to ending up with her" by the end of 2016. We accept the submission made by counsel for the HCCC that the effect of this language was to blame patient A for the boundary violation. While, on occasions, Dr Johnson said he was remorseful, he did not speak of any concern for the impact his behaviour might have had on patient A. 1. Dr Johnson, by omitting any reference to his relationship with patient A in his notes, was acting to protect his own interests and not those of patient A. 2. Dr Saboisky is supportive of Dr Johnson and considers that he is no longer in need of supervision. However it was clear when Dr Saboisky gave evidence, that his conversations with Dr Johnson were focused more on supporting Dr Johnson rather than focusing on Dr Johnson's conduct in relation to patient A. 3. Other practitioners are entitled to see the standards of their profession upheld. In addition a purpose of the protective Orders is to encourage other practitioners to recognise the importance of complying with professional standards and the risks of failing to do so. 4. There was a reference in evidence from Dr England, a psychiatrist. He has known Dr Johnson for 14 years over which they have frequently interacted in a peer group. Dr England knew of the specific terms of the Complaint. He believes that Dr Johnson is remorseful and committed to re-establishing stability in his own life. 5. There was also a reference in evidence from Dr Suttie, a senior clinician with expertise in ethics, law and medicine. He has worked with Dr Johnson over eight years. He expressed an opinion about Dr Johnson's character which we do not accept because he was not made aware of the gravity of the Complaint as he was told that there had been a boundary violation with a patient which was an isolated incident. 6. We accept that Dr Johnson has taken steps to improve his mental health by engaging regularly in meditation, working shorter hours and consulting Dr O'Dea. 7. There is no evidence of any other boundary violation by Dr Johnson.
Counsel for Dr Johnson put the following matters in relation to this issue: 1. Dr Johnson said that he stopped work for a time on 19 August 2020 because he became very stressed by a series of events involving family members. Counsel for Dr Johnson submitted that this shows that Dr Johnson then understood that being stressed could impact on his judgement. We do not accept this submission. Dr O'Dea recorded that Dr Johnson told him: Stopped working wed 19 Aug at midday I just couldn't keep going PP 4 days 300 active cases Went on urgently Still on sick leave Calvary private hospital visiting for consulates 2 complaints to HCCC about leaving As pointed out by counsel for the HCCC, a sudden decision to stop work is not evidence of a planned mental health break. Counsel for the HCCC did concede that the evidence of Dr O'Dea disclosed that Dr Johnson's condition had improved since August 2020. We are of the view that there remains a risk that, from time to time, Dr Johnson will feel emotionally overwhelmed and this will impair his decision making. 1. Dr Johnson is not now impaired in the medical sense. We do not find this submission relevant, as it has not been suggested that Dr Johnson had a diagnosable medical condition, at the time the conduct occurred. 2. Any risk could be managed by continuing the condition on Dr Johnson's registration that he only treat male patients. We accept the submission by counsel for the HCCC that a condition imposed on an ongoing basis following a final hearing that prevents a practitioner from treating entire class of persons is strongly suggestive of unfitness. (Health Care Complaints Commission v Wingate [2007] NSWCA 326 at [61]). In any event, as explained elsewhere in these Reasons we are of the view that the gravity of Dr Johnson's conduct means that cancellation of his registration is the appropriate Order. 1. That a cancellation of Dr Johnson's registration would lead to the loss of an experienced and competent practitioner from a rural area where there is no alternative practitioner to take up the role. We do not accept this submission. There is no evidence before us from which we could reliably conclude that Dr Johnson would continue to practice in Wagga Wagga if he remained registered.
We consider that Dr Johnson should not return to practice until he can show that he has gained insight into his conduct. For this reason, we do not consider suspension of Dr Johnson's registration for a set period is appropriate. Cancellation of Dr Johnson's registration means that, at the expiration of the period of cancellation, Dr Johnson must re-apply for registration and show that he has addressed the issues giving rise to the cancellation and should be permitted to resume practice.
We agree with the submission made by the HCCC that two years is a reasonable period for Dr Johnson to continue therapy and gain insight into his conduct. It is also an appropriate consequence for his behaviour.

Costs

The parties have invited us to indicate what we consider to be the appropriate Costs order after which the parties will be given an opportunity to make submissions if they do not agree with the proposed Order.
We propose to order that Dr Johnson should pay the costs of the HCCC for the whole of the proceedings as the HCCC was successful in almost every aspect of the Complaint and costs should follow the event.
In the event a party wishes to make submissions in relation to the proposed Order, it must file and serve written submissions within 14 days. Those submissions should also address whether the decision can be made on the papers as permitted by s 50(2) of the Civil and Administrative Tribunal Act 2013 or whether there should/must be oral submissions.
If after 14 days no written submissions are filed, the foreshadowed costs Order will be made.

Orders

We make the following Orders: 1. Pursuant to s 149C(1)(b) of the Health Practitioner Regulation National Law (NSW), Dr Johnson's registration as a medical practitioner is cancelled. 2. Pursuant to s 149C(7) of the Health Practitioner Regulation National Law (NSW), Dr Johnson may not apply for a review of Order (1) for a period of two years from the date of this decision. 3. Dr Johnson to pay the costs of the Health Care Complaints Commission for the whole of the proceedings. 4. Order (3) is stayed for 14 days to enable any party seeking a different Order in relation to costs to file and serve submissions in relation to his or its proposed Order within those 14 days. The submissions are also to address whether the decision on costs can be made on the papers as permitted by s 50(2) of the Civil and Administrative Tribunal Act 2013 or whether there should/must be oral submissions. If submissions are filed within 14 days, then Order 3 will continue to be stayed until a final decision in relation to costs has been made by the Tribunal.

Appendix A (1) To advise the Medical Council of NSW in writing at least seven days prior to changing the nature or place of his practice. (2) Not to consult, examine, treat or perform any procedures on any female patient. 1. The practitioner may only provide emergency medical services to such persons in compliance with section 139C(©) of the Health Practitioner Regulation National Law. 2. If any such event occurs, the practitioner must notify the Medical Council of NSW within 24 hours and provide details of the event and any other information as requested by the Council (3) To practise under category C supervision in accordance with the Medical Council of NSW's Compliance Policy - Supervision (as varied from time to time) and as subsequently determined by the appropriate review body. (a) The terms of the Council's Compliance Policy - Supervision are varied so that the practitioner is to: 1. authorise the Council-approved supervisor to provide reports to the Council (in a Council-approved format) every 3 months (b) At each supervision meeting the practitioner is to review and discuss his practice with his approved supervisor with particular focus on: 1. Self-care 2. transference and countertransference 3. maintaining professional boundaries 1. To authorise the Medical Council of NSW to provide proposed and approved supervisors with the decision which imposed this condition. (4) To submit to a random audit/inspection of the practitioner's medical practice by a person or persons nominated by the Medical Council of NSW: (a) The audit/inspection is to be held as required by the Council to assess his compliance with the conditions imposed on his registration. The auditor(s) may: 1. Inspect medical records; 2. Access, copy or retrieve appointment diaries, patient booking schedules and contact details. (b) To authorise the auditor(s)/inspector(s) to provide the Council with a report on their findings. (c) To meet all costs associated with the audit(s)/inspector(s) and any subsequent reports. 1. 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.

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: 15 November 2023

At a glance

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