Health Care Complaints Commission v Khan - [2019] NSWCATOD 1 - NSWCATOD 2018 case summary — Zoe

NSWNSWCATOD

Health Care Complaints Commission v Khan

[2019] NSWCATOD 1

NCAT Occupational|2018-12-06

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At a glance

Source facts

Court

NCAT Occupational

Decision date

2018-12-06

Source

Original judgment source is linked above.

Judgment (56 paragraphs)

[1]

REASONS FOR DECISION

The Health Care Complaints Commission (HCCC) has filed a complaint against the respondent, Dr Khan. The complaint has been brought in accordance with s 39(2) and with s 90B (3) of the Health Care Complaints Commission Act 1993 (NSW) ("the HCCC Act") and in accordance with s145A of the Health Practitioner Regulation National Law (NSW) (the "National Law") by the Director of Proceedings, HCCC ("the complaint"). The complaint contains ten individual complaints alleging unsatisfactory professional conduct by the respondent under section 139B (1) (a) and (l) of the National Law.
Complaint Eleven alleges that the conduct engaged in by the respondent referred to in complaints One to Ten, either by themselves, or when considered together, constitutes professional misconduct under section 139E of the National Law, and constitutes conduct of a sufficiently serious nature to justify the suspension or cancellation of the respondent's registration.
Each of complaints One to Ten alleges that the respondent engaged in conduct with female patients, anonymized as Patients A to I inclusive, which demonstrated that the judgement possessed, or care exercised, by the respondent in the practice of medicine was significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience; and alternatively or in addition, the respondent engaged in improper or unethical conduct relating to the practice or purported practice of medicine.
Each of the patients referred to in complaints One to Ten were between 20 and 45 years of age who attended the Mayfield Medical Practice at which the respondent practised as a general practitioner. The attendances were between 2013 and 2015.

[2]

[3]

The Hearing

It is necessary to refer to the events preceding the hearing date. The respondent departed Australia to return to Pakistan on or about 18 July 2016 when his visa was cancelled. On 19 January 2018 the Tribunal made an order for substituted service providing that service be effected by forwarding the Complaint by email to the email address of the respondent. Service was effected in accordance with the order on 25 January 2018. On 23 March 2018 the respondent was again served by email via a secure document share link.
On 20 April 2018 a Directions hearing took place as notified in advance to the respondent. By this date the respondent had not downloaded documents sent on 28 March 2018.
On 23 May 2018 the respondent informed the HCCC and the Tribunal by email that he had not yet viewed the documents sent to him. Accordingly on 28th of May 2018 the HCCC again sent the documents and supporting material to be relied upon via a secure document share link. On 18 June 2018 the respondent forwarded an email to the HCCC advising that due to the festive season of fasting and then Eid, he was unable to access the document link.
On 20 June 2018 the HCCC again sent their documents via a secure document share link. On 2 July 2018 the HCCC received confirmation that the respondent's email had been accessed and documents downloaded from the document share link.
On 20 July 2018 a Directions hearing, which had been notified in advance to the respondent, was held by the Tribunal. The respondent did not appear by video link
On 12 October 2018 a Case Conference was held by the Tribunal and again the respondent was invited to attend by video link. The respondent did not do so, although he had notified his intention to do so.
On 23 November 2018 both the HCCC and the Tribunal received an email from the respondent which acknowledged that he was aware of matters relating to the hearing of which he had received notice and in respect of which he was invited to appear by video link.
On 30 November 2018 the Tribunal forwarded an email to the respondent's email address again reminding him that the hearing was to take place on 3 December commencing at 10 am Australian Eastern Standard Time and providing codes for him to participate.
At 10 am on 3 December 2018 the respondent did not join the video link facility. Accordingly an email was sent to him reminding him that the hearing had commenced and that if he wished to participate it was necessary for him to telephone within the ensuring hour. No response was received. The Tribunal also attempted to telephone the respondent but was unable to gain access to the respondent. The link remained open for the remainder of the first sitting day December 3rd and the first half of the second sitting day December 4th, but no communication was received from the respondent.
The Tribunal is empowered by s 165J of the National Law to proceed ex parte if it is satisfied that the respondent has had notice of the hearing. On the application of the HCCC that the proceedings be heard ex parte, and as the Tribunal was satisfied that the respondent had notice of the hearing via the numerous emails sent to the address nominated by him, it elected to proceed ex parte. During the hearing a communication was received from the respondent, from his nominated email address, containing information which is discussed hereunder. By virtue of the receipt of such information, the Tribunal was confirmed in its belief that the respondent was fully aware that the hearing was taking place.

[6]

Particulars of Complaint One: Patient A 1) During a consultation with Patient A on 15 July 2015, the practitioner conducted a chest examination on Patient A: a) without appropriate clinical reason or justification in circumstances where he had already conducted an appropriate chest examination on Patient A earlier in the consultation; b) for which he asked Patient A to remove her shirt and loosen her bra in order to conduct the examination which was not necessary; c) and failed to give or offer Patient A privacy to remove her shirt and watched her undress. 2) On 15 July 2015, the practitioner prescribed Seroquel 25mg to Patient A with the prescription stating the script was for 'Bipolar I disorder' and 'the treatment must be maintenance and therapy' in circumstances where there was no clinical basis for that diagnosis or treatment. 3) Between 1 July and 19 July 2015, the practitioner failed to maintain appropriate professional boundaries with Patient A in that he sent Patient A approximately 232 text messages of a personal nature; 4) On 16 July 2015, the practitioner failed to maintain appropriate professional boundaries in that he telephoned Patient A and during the course of the conversation: a) discussed his personal circumstances including: b) his marital problems; c) his feeling of isolation and depression; d) repeatedly requested to meet with Patient A in person at his house or at the park. 5) On 18 July 2015, the practitioner failed to maintain appropriate professional boundaries in that he telephoned Patient A and during the course of the conversation: a) said words to the effect of "I have unconditional love for you"; b) said words to the effect of "if you ever want to be with me, I'm ready for you"; c) said words to the effect of "I've really liked you ever since I first saw you"; d) said words to the effect of "I wanted you the first time I saw you"; e) requested to talk to Patient A in person. 6) On 18 July 2015, the practitioner inappropriately used confidential information disclosed by Patient A during a professional consultation with the practitioner in that he sent a number of text messages to Patient A which referred to Patient A's boyfriend having "cheated" on Patient A: (a) for which there was no proper therapeutic or clinical reason to do so; (b) for a purpose which was personal including attempting to influence Patient A to enter into a personal and/or sexual relationship with the practitioner.

[12]

Response

As to particular 1: The respondent asserts that the medical records of this patient show that when she visited for her consultation, she stated that she "can see and hear things which others cannot". The respondent submits that he made his psychiatric diagnosis over several visits based on her symptoms.
As to particular 2 (a): the respondent states that the patient phoned him on his mobile phone and not the practice landline: such call occurred on his birthday and the patient knew it was his birthday. The patient states that she called to make an appointment for her neighbour. The respondent appears to question this assertion.
As to particular (b): The respondent acknowledges he visited the home of patient C and removed his shoes and sat on the floor and drank coffee.
As to particular 2(c): The respondent does not address this allegation directly. He states that "At that time, I needed emotional help and feeling of not being lonely and not physical intimacy."
As to particular (d): The respondent does not refer to the allegation in this particular;
As to particular 2(e) and 2(f): The respondent denies that he sat close to the patient on the couch and denies he said words contained in particular 2(e). The respondent states he never touched any of his patients "as I never sought anything physical including touch. At that time, I needed emotional help and feeling of not being lonely and not physical intimacy. Kindly refer to patient's own statement in this regard, though I challenge that as well".
In the section 150 proceedings the respondent agreed that he visited the home of the patient, sat on the floor and had coffee with her but denies that he made comments relating to an "open extra marital relationship". However the respondent gave confusing evidence indicating that the matter may have been raised "to the doctor and the doctor made her realise that it was inappropriate". [The term "The Doctor" appears to relate to the respondent.] The respondent said then "I think she mentioned it to the doctor". The respondent then stated that he thought that the patient "got carried away…" The respondent acknowledged that he provided her with his mobile number. The respondent acknowledged that it was "not my intention to pursue anything beyond friendship. Irrespective of my motivations for contacting them, what I did (indistinct) fundamental breach of trust and abuse of my position as their doctor. Although I have explained the stressors that were impacting me at the time, I accept that they didn't adequately explain my conduct which was selfish and extremely damaging to the patients."

[25]

Particulars to Complaint Ten: Medicare Claims 1) The practitioner inappropriately claimed Medicare Item 2713 - "GP Mental Health Treatment" for consultations with Patient A, on the dates set out below, in circumstances in which an extended consultation (a minimum of 20 minutes) where the primary treating problem is related to a mental disorder is required to be able to claim for that item number under Medicare Benefits Schedule and the practitioner did not conduct such a consultation: a) 6 May 2015; b) 11 May 2015; c) 29 June 2015. 2) The practitioner inappropriately claimed Medicare Item 2713 - "GP Mental Health Treatment" for a consultation with Patient D on 21 November 2013 in circumstances in which an extended consultation (a minimum of 20 minutes) where the primary treating problem is related to a mental disorder is required to be able to claim for that item number under Medicare Benefits Schedule and the practitioner did not conduct such a consultation. 3) The practitioner inappropriately claimed Medicare Item 2713 - "GP Mental Health Treatment" for consultations with Patient F, on the dates set out below, in circumstances in which an extended consultation (a minimum of 20 minutes) where the primary treating problem is related to a mental disorder is required to be able to claim for that item number under Medicare Benefits Schedule and the practitioner did not conduct such a consultation: a) 16 July 2014; b) 3 November 2014. 4) The practitioner inappropriately claimed Medicare Item 2713 - "GP Mental Health Treatment" for consultations with Patient G, on the dates set out below, in circumstances in which an extended consultation (a minimum of 20 minutes) where the primary treating problem is related to a mental disorder is required to be able to claim for that item number under Medicare Benefits Schedule and the practitioner did not conduct such a consultation: a) 17 July 2014; b) 12 August 2014; c) 19 August 2015. 5) The practitioner inappropriately claimed Medicare Item 2713 - "GP Mental Health Treatment" for consultations with Patient H, on the dates set out below, in circumstances in which an extended consultation (a minimum of 20 minutes) where the primary treating problem is related to a mental disorder is required to be able to claim for that item number under Medicare Benefits Schedule and the practitioner did not conduct such a consultation: a) 15 May 2014; b) 13 June 2014; c) 14 August 2014. 6) The practitioner inappropriately claimed Medicare Item 2713 - "GP Mental Health Treatment" for consultations with Patient I, on the dates set out below, in circumstances in which an extended consultation (a minimum of 20 minutes) where the primary treating problem is related to a mental disorder is required to be able to claim for that item number under Medicare Benefits Schedule and the practitioner did not conduct such a consultation: a) 26 November 2014; b) 27 November 2014. The evidence is contained in the clinical records of the relevant patient, and the claims made to Medicare for the treatment for such patients.

[29]

Dr Stephen Howle

In his report, Dr Howle referred to the Code of Conduct for Doctors in Australia ("the Code") and referred particularly to Section 1.4 of the Code which states: "Doctors have a duty to make the care of patients their first concern and to practise medicine safely and effectively. They must be ethical and trustworthy"
Dr Howle also refers to section 8.2 of the Code which states relevantly: "Professional boundaries are integral to a good doctor-patient relationship. They promote good care for patients and protect both parties. Good medical practice involves - maintaining professional boundaries - never using your professional position to establish or pursue a sexual, exploitative, or other inappropriate relationship with anybody under your care. This includes those close to the patient, such as a carer, guardian or spouse, or the parent of a child patient."
Dr Howle also referred to texts in which the position of a doctor is considered such as: "1. The doctor is in a unique position regarding physical and emotional proximity. Patients are expected to disrobe to allow doctors to examine them intimately. 2. The doctor-patient relationship is not one of equality. The patient is generally in a vulnerable position and exploitation by the doctor is an abuse of power. 3. Breaches of the doctor-patient relationship will often cause psychological damage to the patient. 4. The community expectation of the medical profession is one of the utmost integrity. 5. Personal involvement with the patient will often lead to clouding of judgement. 6. The patient doctor relationship transcends social values and no standard other than the highest can be acceptable. 7. A doctor making sexual advances to or engaging in sexual acts with a patient is wrong even if the patient believes this to be acceptable at the time".
Dr Howle commented that the respondent had himself received medical treatment for a relapse of his pre-existing depression. From 11 November 2013 until 9 July 2015, the respondent was regularly prescribed at the Mayfield Medical Centre, Citalopram, an anti-depressant, and Lorazepam. According to the records it is unclear whether the respondent took the medication as prescribed but apparently restarted or continued medication if he felt depressed or felt that depression was returning or worsening. The respondent had regular access to the general practitioners who prescribe such drugs to discuss his emotional state.
Dr Howle considered that such medication, together with ethics courses which the respondent has undertaken through Monash University indicates that the successful return to practise is dependent upon the respondent being truthful and forthcoming in all of his facts. Dr Howle expressed his reservation.
Dr Howle considered that there were strategies which could be adopted to avoid risk to the public such as: avoid seeing female patients, especially those with mental health issues, using a chaperone for all consultations with females, pursuing ongoing education with respect to boundary crossing and violations; using his current or other appropriate psychologist and psychiatrist to explore his personality and reaction to future stress or is as well as his family interactions and future support; having stricter supervision and mentoring of his clinical work to ensure he has less exposure to situations where he, or the patient, may inadvertently apply pressure to boundary cross; an understanding by the respondent of privacy of the medical record and the privilege he has in being able to access personal information about patients: he needs to understand that violation of privacy is not be tolerated in medical practice.

[30]

Respondent's Response

The respondent's Response dated 23 May 2018 makes numerous comments, suggesting that the respondent is the victim of possibly racial vilification. Other responses, as set out above, are confused and confusing. The Tribunal notes such remarks, but will consider the responses here under to the complaints.
The respondent states, relevantly: I. Credibility of the HCCC Application 1. I do not consider the appellant's "application for disciplinary finding and other orders" in its document number 17/302343 to be credible enough to rely for making a decision. a) I will prove it by providing clear evidences, in this statement, and attached evidences, to prove that the application's cited complaints are not based on facts, are biased, and at various places absolutely false. b) Not only this, I will also provide evidences, from within the appellant's own application, of the discrepancies that are included in the application. c) I am trying to do so, not to win an argument but to set the record straight and I will do so to the satisfaction of the tribunal. 2. This, however, does not, in any way, mean that I have not done anything wrong. a) I have already given affidavits and statements multiple times, admitting what actually happened, and why and what measures have I taken to prevent it from happening again.
The respondent disputes the allegation that he was required, as a condition of his practice, to become Fellow of the College as alleged. At the hearing, the HCCC acknowledges that such allegation was erroneous.
The respondent claims that there are contradictions and false statements in respect of certain particulars alleged. The comments are related to certain particulars. They do not dispute the critical allegations of misconduct, being that the respondent made contact with various patients, in circumstances which breached the practitioner/ patient relationship as provided by the Code.
The respondent blames himself for the conduct, explaining that in the absence of his family who were temporarily absent from Australia, he became lonely and depressed, to the point where he himself was in need of support and assistance. The respondent makes such explanation repeatedly, as the reason for his engaging in the conduct complained of.
The respondent submits that his "crossing the boundary" or "boundary transgression and boundary violation", resulted from inadvertence. The respondent submits that he is not guilty of deliberately transgressing the Code of Conduct.
The respondent states that he has been "guilty and ashamed of the above mentioned inappropriate conduct", and states that such conduct arose from his "frame of mind and state where I myself was suffering from depression". The respondent states that he has received treatment.

[32]

Unsatisfactory Professional Conduct

Conduct which may result in the imposition of a disciplinary sanction may constitute unsatisfactory professional conduct as defined in section 139B of the National Law. That section broadly defined such conduct as conduct "significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience". However it is not confined to mere clinical expertise. If the conduct of a respondent is not in conformity with standards of professional conduct and practice, it may be regarded as "improper": see R v Byrne (1995) 193 CLR [514] - [515]; see also Health Care Complaints Commission v MacGregor [2016] NSWCATOD 86 at [40] - [41]. Improper conduct may include "unethical conduct". In Slezak, Dr Peter [2011] NSWMPSC 10 at [80], [83] and [87], the Tribunal observed that improper or unethical conduct is to be determined by reference to the views of reasonable members of the profession. Generally, conduct which has a tendency to bring into disrepute, or does bring a profession or calling into disrepute, is conduct which, by reasonable standards, is seen as falling below the standard of conduct expected of that class of persons: see Office of Local Government v Toma [2015] NSWCATOD 21. French CJ in Parker v Comptroller of Customs (2009) 83 ALJR 494, [2009] HCA 7, said [at para 29] "…[t]he relevant ordinary meanings of improper include "not in accordance with truth, fact reason all rule; abnormal, irregular; incorrect, inaccurate, erroneous, wrong".
In Chen v Health Care Complaints Commission [2017] NSWCA 186, Basten JA said at [18] - [20] : "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 judgement made by the Tribunal".

[33]

Professional Misconduct

Professional misconduct is defined in s 139E of the National Law as meaning: (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."
The definition of professional misconduct has been stated in HCCC v Karalasingham [2007) NSW CA 267 at [67]. Relevantly, Basten JA said: "Thus, a person may not be suspended or deregistered unless the Tribunal finds the person is not competent to practice [sic] medicine, is guilty of professional misconduct, is not a good character or has been convicted of an offence which renders the person unfit in the public interest to practice medicine: section 64 (1)."
In HCCC v Iskander [2015] NSWCATOD 30, the Tribunal said at [174]: "Generally, it is a pre-requisite for the making of an order cancelling a practitioner's registration that there is a finding that the practitioner is probably currently unfit to practice [sic] and is likely to remain so for a significant or indefinite period (see HCCC v Della Bruna [2014) NSWCATOD 31; HCCC v Jamieson [2014] NSWCATOD 56).
The essential principle was stated by the New South Wales Court of Appeal in HCCC v Do [2014] NSWCA 37 at [35] as follows: "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."
The HCCC bears the onus of proof of the complaints. The standard of proof is to the level of satisfaction described in Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34. See also Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 CLR 445; [1992] HCA 66; Rejfek v McElroy (1965) 112 CLR 517 at [521]; Bannister v Walton (1993) 30 NSWLR 699 at [711] - [712]; Lindsay v Health Care Complaints Commission [2005] NSWCA 356.
The standard remains the civil standard of proof: the authorities make it plain that there is no higher standard than the balance of probabilities when considering the gravity of the conduct involved: see Gianoutsos v Glykis (2006) 65 NSWLR 359 at [548] - [549]; Re Sophie [2008] NSWCA 250 at [50] and [67].

[34]

Complaint One

Particular 1 (a), 1 (b), 1 (c): the consultation on 15 July 2015 for patient A was a result of the patient complaining of fainting on one occasion, coughing and having breathing problems. The respondent examined the patient on two occasions during the same consultation. The medical records record that her chest was clear. There appears to be nothing untoward in respect of the first examination. However during the second examination the patient complained that the respondent did not pull the curtain around and watched while she dressed. The Tribunal concludes there is insufficient evidence to find that this complaint is established in the absence of hearing from the witnesses namely the patient and the respondent. The HCCC asks the Tribunal to infer a sinister motive on the part of the respondent because three days later intimate text messages were sent by the respondent to the patient. The Tribunal considers that such a finding would be speculative.
Particular 2: the clinical notes do not record that there is any evidence for the Bipolar 1 disorder. Authority is required to prescribe Seroquel under the pharmaceutical benefits scheme. However Seroquel is frequently prescribed in similar low doses to that prescribed by the respondent for treatment of anxiety and insomnia. Whilst the Tribunal does not condone such practice, the Tribunal is not satisfied that the conduct of the respondent deviates to such an extent that it constitutes unsatisfactory professional conduct.
Particular 3: the respondent does not dispute that he sent the text messages of a personal nature as alleged. The Tribunal concurs with the opinion of Dr Howle that the forwarding of such messages was inappropriate and was significantly below the expected standard of a practitioner of an equivalent level of training or experience and invites strong criticism. The Tribunal also concurs that the respondent wilfully ignored the ethics involved and crossed the doctor-patient relationship boundary. The content in the text messages includes statements by the respondent which demonstrates that he fully understood that he was transgressing the doctor-patient relationship, and yet he persisted. Further, one message records that the respondent was clearly pleading with the patient that she continue to see him as his practitioner. Such message was sent at 11:34 pm. The Tribunal considers that in addition to the inappropriate content, the sheer volume of text messages, and the timing of such communication, sometimes late at night and early in the morning, demonstrates that the conduct of the practitioner constitutes unsatisfactory professional conduct.
Particular 4 and 5: The Tribunal was taken to phone records which tended to confirm that the respondent had telephoned the patient at approximately the time at which the patient claimed to have received contact from the respondent. The Tribunal notes that the respondent denies he said any words alleged. However the Tribunal observes that the content of the alleged conversations tends to be confirmed by the content of text messages. Accordingly the Tribunal finds that the words alleged in particular five (a) to (e) are, on the balance of probability, likely to have occurred as alleged. Accordingly such conduct constitutes unsatisfactory conduct.
Particular 6: the Tribunal finds that the respondent inappropriately used confidential information disclosed by the patient during a professional consultation. The use of the information was for the respondent's purpose of undermining the patient's relationship with her existing boyfriend. The respondent was clearly using the confidential information for the purposes of emotional blackmail, by the respondent suggesting that the patient was responsible for the respondent's emotional well-being. This constitutes a clear reversal of a doctor/patient relationship and a violation of the relationship. The messages show clearly that the respondent was conscious of violating his professional boundaries. The Tribunal is satisfied that such conduct occurred and that such conduct constitutes unsatisfactory conduct.

[36]

Complaint Three

Particular 1: the medical record for this patient records that at the conclusion of the consultation recorded by the respondent on 3 March 2014 he diagnosed the patient with depression, drug abuse and schizophrenia, borderline. His assessment, which appears above the diagnosis in the records refers to schizoaffective; schizophrenia, depression, anxiety, drug abuse/addiction, and noted that the patient would like help from "Drug and Alcohol". This is understood to represent a list of comorbid or differential diagnoses. The patient objected to the diagnosis of schizophrenia contained in the subsequent referral letter to a Drug and Alcohol service, and the respondent refused to withdraw such reference. Thereupon the patient consulted another practitioner who removed such diagnosis.
The Tribunal notes that the issue arising is the fact that, having made the differential diagnosis, the practitioner made the diagnosis to depression, drug abuse and schizophrenia, borderline. The Tribunal agrees with Dr Howle that it was premature to make a diagnosis of schizophrenia. In his evidence to the section 34 interview, the respondent agreed that he could not make a diagnosis of such a condition without it being fully investigated. He also stated that his diagnosis "was never a diagnosis of schizophrenia, and in the notes as well, as far as I remember, it always make [sic] and then write (indistinct) and the list of other possible diagnosis."
The Tribunal finds that the respondent did not communicate well with the patient by including the diagnosis of schizophrenia, and incorporating such reference in the referral letter to the Drug and Alcohol Centre. In addition, the diagnosis remained in the patient record, not as provisional but as accepted. The Tribunal is critical of the respondent's refusal to make it plain in the letter, and the patient record, that he had made no final diagnosis and at the reference to schizophrenia was only provisional. Such record also appears in the GP Management Plan and Team Care Arrangement, and in several other records resulting from the respondent's findings. The respondent should have corrected the record, and notified all recipients of such correction, especially in view of the fact that the patient objected to such diagnosis as set out in the referral letter where again the diagnosis is not qualified as "provisional". While the Tribunal agrees with the respondent's statement concerning the fact that such disorders require investigation, the fact that such diagnosis was recorded, and recorded in multiple places, demonstrates unsatisfactory professional conduct.
Particular 2 (a) - (d): there is no dispute that the respondent visited the patient's home for a visit of a personal nature; that he removed his shoes, and sat on the floor drinking coffee. The respondent says he removed his shoes at the door and not inside the house. It is not disputed that the respondent and the patient, as the respondent stated, "shared a hug" at the end of their meeting.
The dispute revolves around the words allegedly stated by the respondent to the patient, and his actions. The Tribunal finds that the evidence of the patient is credible. To a degree it is supported by the evidence of her neighbour as set out in tab 22 of volume 1 of exhibit A. About two hours after the meeting concluded, the patient received a message as follows: "It was wonderful to meet u. Already missing the communication and the connection".
The patient responded relevantly: "Having given this some thought, I have decided that pursuing this relationship is not right or healthy.... Please do not contact me again."
The Tribunal notes the annotated response by the respondent (page 1181 of Exhibit 3) that attribute the patient's distress to the patient "having paranoid delusions or hallucinations...". The Tribunal considers such comment as an attempt to denigrate her and undermine her evidence.
The Tribunal is satisfied that the exchange of messages supports the version of the events given by the patient. The respondent has provided an annotated statement which alleges that the allegations of the patient are false. The Tribunal also notes that in the section 150 proceedings he denied the allegations made by this patient. However the Tribunal notes that he agrees with the patient's statement that he spoke about himself to the patient and told her that he and his wife were having issues. Further, the respondent states "I have not tried to prove myself not guilty of crossing the doctor-patient boundary, but there lies a difference between inadvertently crossing the boundary, boundary transgression and boundary violation."
The Tribunal notes the respondent denied that he ever sought an extramarital relationship, claiming that such was a false allegation: he says: "I never sought an extramarital relationship in that timeframe, never in my entire life."
The Tribunal however notes the respondent's evidence that he did seek such relationship, as he admits, with patient A.
The Tribunal notes the opinion of Dr Howle that the conduct of visiting the patient in circumstances of informality and intimacy is inappropriate; violates boundaries and must have been intimidating to the patient. And that the respondent was lacking in insight as to the state of the relationship with the patient. Further, it was inappropriate for the respondent to utilise his position of power and influence to attempt to change his status from a professional to a person who might seek closeness with a patient or former patient by disclosing his personal information, for whatever reason. The actions of the respondent invite strong criticism.
The Tribunal finds that the conduct of the respondent in respect of this patient constitutes unsatisfactory professional conduct.

[37]

Complaint Four

Particular 1 (a), (b), (c): This patient is a 40 year old woman. Her statement dated 10th of March 2016 describes the communications which the respondent made with her, and the visits made by the respondent to her house at the respondent's request.
The respondent only had the patient's telephone number because of the information that was supplied to him during medical consultations whilst she was his patient. The respondent denies that he used the patient's confidential medical records and that he had the patient's mobile number "as it was given to me by the patient and I am not proud of it". There is no other occasion, other than medical consultations on which occasion the mobile number could have been provided to the respondent.
The use of such information more than 12 months after the last consultation constituted a breach of appropriate professional boundaries.
Particular 2: The first communication took place in July 2015 when the patient stated that she received a telephone call from the respondent "out of the blue". In fact she had ceased consulting the respondent in January 2014. The respondent requested that she meet with him at her home. She stated that she did not feel comfortable with him coming to her house and suggested that they meet at Mayfield McDonald's for a coffee. She met the respondent and the respondent revealed his personal problems and stated that he needed a friend to talk to about them.
Thereafter the parties communicated by text and email, and it is clear that the messaging became more intense over time. For example, on 24 July 2015 the respondent sent a message: "Please don't leave me alone"
Later messages suggest a more intense relationship. On 29 July 2015 the respondent sent the following message: "Then why didn't you love me?"
On 29 July 2015 he sent the following message: "You never had any feelings for me. If I am such a lovable person why didn't "you" love me?"
On the same day the respondent sent the following message: "What if I fall in love with u"
Following the return of the respondent's wife in August or September 2015 the patient stated that she "pulled away from our friendship because I believe that Dr Khan wanted more than friendship. Dr Khan had tried to kiss me on a number of times and the content of his text messages indicated he wanted more than friendship with me. I told Dr Khan that I was happy for him to be in my life as a friend, but that was all".
The respondent does not dispute the particulars alleged in subparagraph (a) nor (b). As to particular (c), the respondent seems to dispute that it was inappropriate to disclose personal information to the patient concerning his loneliness, isolation, marriage and family pressures. The respondent used the confidential information concerning patient D's history in order to make contact with her and to convert that contact into intimate contact. In doing so, he was exploiting the information, with full knowledge of her past medical history. However, he does not deny, and the text messages indicate that such matters were discussed with the patient.
As to (d), the respondent disputes that he attempted to kiss the patient on a number of occasions. Although the messages sent by the respondent to the patient are clearly flirtatious, and seductive, there is inadequate evidence for the Tribunal to conclude that, on the balance of probabilities, this particular is established.
The Tribunal notes the report of Dr Howle which considers that the respondent transgressed the doctor/patient boundary and that such conduct was significantly below the standard expected and invites strong criticism. In particular, the Tribunal concurs with the opinion of Dr Howle that the respondent exploited his knowledge of the patient to engage with her.
The Tribunal agrees and finds that such conduct constitutes unsatisfactory professional conduct.
With regard to Particular 2 (a) to (d), the Tribunal observes that in the section 34A interview, the respondent acknowledged that this patient provided him with emotional support. He acknowledged sending all the text messages to her and that he asked her whether she would be willing "to provide me with emotional support because I'm going through a difficult time in my life." The Tribunal notes the findings of Dr Howle that such conduct deserves strong criticism and that the conduct falls below the standard expected. The Tribunal finds that the respondent has engaged in unsatisfactory professional conduct by virtue of the facts alleged as set out in the particulars.
The Tribunal considers that the conduct alleged in respect of patient D constitutes unsatisfactory professional conduct.

[38]

Complaint Five

This patient was born in October 1986. She first saw the respondent on 11 November 2014. She attended for mental health treatment for an anxiety disorder. Whilst there is no supporting statement, the Tribunal has before it numerous Viber messages exchanged between the respondent and the patient. The Tribunal also has a list of telephone records from the respondent's office to the patient.
Particular 1 (a) and (b) and Particular 2:
The respondent stated during the section 34A interview that this patient came to him for symptoms of mild agoraphobia and that he believed that she was attracted to him. He explained that at this period, namely from May to August 2015 he was going through a difficult period. He denied visiting her house. However the particulars do not suggest that he did so. The patient was married with children.
The respondent did not dispute the Viber messages and communications that he had with the patient after May 2015. The respondent asserted that it was never his intention to seek any physical or intimate relationship. The messages from the respondent include messages such as: "I love you too"; "what are u wearing?"; "I miss you too"; "We need to meet. It's fine with me. Whenever convenient for you."
The respondent acknowledged that he sent a message, including the message: "Just remember I love you and I'm telling you all this because I love you".
In respect of a message sent on 24 July 2015, the respondent referred to his wife and said to the patient: "She was suspicious and went through my phone"; "She went through messages. I was on the phone too much".
On fourth of August 2015 the respondent sent a Viber message to the patient: "I love you more."
The patient clearly had a strong affection for the respondent, stating: "And we had an affair and I don't want to address any feelings because I wasn't sure what I was feeling... I became sure that I am in love with you..." Messages from the patient on 4 August 2015 refer to the fact that they hugged and kissed. Other messages referred to meetings between the patient and the respondent.
On 23 August 2015 the respondent stated, relevantly: "I may be the wrong person for you since I am such a bad person. The worst one... I think it's better if we don't contact each other for some time at least".
In late August 2015 further messages were sent by the respondent in which he declared his love for the patient.
The telephone records taken from the plaintiff's office record numerous calls, the longest lasting two hours and 34 seconds and on the same day another call of one hour and 57 minutes. In total five calls were made on 19 July 2015. That date was one day after the respondent had telephoned patient A expressing his love for her.
The respondent does not dispute the content of the messages but alleges that the dates are false. The evidence indicates that the messages and the dates have been extracted from the database. The records show that the Viber messages commenced on 28 September 2014 and continued until 7 September 2015. The texts of the messages show a continuous record of such communications.
Accordingly the Tribunal finds that the dates are correct in the absence of any evidence to the contrary.
Dr Howle considers that the respondent, as is apparent from messages, was aware of boundary crossing. He considers the respondent's conduct in attempting to create and perhaps maintain a relationship with a patient was inappropriate. The messages sent from the respondent were, in his opinion, "cruel and dishonest" to continue to give the patient hope that he would seek his future with her unless he intended to leave his wife. Dr Howle considered this to be a gross boundary violation. He also considered that the conduct of the respondent was "more disturbing as her medical problems were mostly psychological in nature. I see this conduct could be seen as taking advantage of a vulnerable patient and gives me concern as to whether Dr Khan has any concept of ethical behaviour". He continued: "To utilise a young female patient, who is also having psychological problems, as an appropriate person to seek emotional support from is wrong in several ways. He should have been approaching a peer, friend or professional; he should not have been approaching any patient; he certainly should not have been approaching a patient with similar problems, and probably should have been avoiding a young female. This is a boundary violation, and also suggests that Dr Khan lacks insight into normal ethical behaviour".
Dr Howle considered that his conduct fell significantly below the expected standard of a practitioner. The Tribunal concurs with the observations of Dr Howle and finds the conduct as alleged against this patient to constitute unsatisfactory professional conduct.

[39]

Complaint Six

This female patient was born in 1978 and according was 37 years of age at the relevant time. The patient was diagnosed with depression and anxiety in July 2014. It appears the respondent treated her on 28 August 2014 for anxiety and depression.
There is no statement from this patient however the Tribunal has been provided with a series of SMS messages downloaded from the respondent's phone to this patient, which are undated. However other messages have been downloaded commencing on 19 July 2015. The first message states: "Sometimes you just need a hug and communicate to feel alive and worthy. I think I am loosing [sic] that".
On 24 July 2015 the respondent again text, stating: "The obstacles with discussing it with anyone is first communication and secondly judgement of motives and objectives by others. Like why is he telling me all this. What does he want? Are there any ulterior motives or hidden agenda? And of a new female friend "Does he want sex"? And it might even go down to that road unknowingly and to find out that it was a temporary relief like a benzodiazepine and finding out that communication cannot be replaced by sex or intimacy."
Another message relevantly states: "Had my birthday yesterday. One year older and wiser: Went for dinner outside by myself."
The Tribunal observes that a message, sent in identical terms, was forwarded to patient D on 18 August 2015.
Another message was sent, apparently on the following day to patient F: "Can I have one tiny little drink with you?"
The last consultation recorded was on 23 September 2015 when the patient was treated for anxiety as recorded by the respondent in the clinical notes.
The respondent acknowledges that he sought emotional support from this patient (and as he states, with other patients as well).
Dr Howle considers that the conduct in forwarding personal messages by the practitioner to the patient to fall significantly below the expected standard of a practitioner and invites strong criticism. He notes that the messages were very personal, tend to be asking the patient to meet the respondent frequently and that she is his only true friend. Such communication continues for some time after the return of the respondent's wife, suggesting that an emotional bond had developed.
The Tribunal observes that such conduct occurred simultaneously with other patients, which have been referred to previously in this decision, and while she was continuing to consult him as a patient.
The Tribunal finds that the conduct, as alleged, constitutes unsatisfactory professional conduct.

[41]

Complaint Eight

Patient H was a 24-year-old female. Her diagnosis made on 15 May 2014 by the respondent was: anxiety, depression. According to her statement, following her consultation, the respondent commenced to text her on her mobile number. She could not recall providing him with such number. The respondent sent messages to her asking how she was progressing, and how the weekend was going. The text messages commenced on 15 August 2015 and continued to 21 August 2015.
In August 2015 she consulted the respondent when he enquired about her welfare and she informed him that she had broken up with her boyfriend. At that point the respondent started to tell her about his personal problems and about his life, including the fact that he had recently "broken up with his wife and that he did not get to see his son". The patient said that the respondent informed her that he was lonely and he felt disconnected. The patient said she felt uncomfortable about such conversation.
Following the consultation, the respondent again forwarded text messages to her. One message insinuated that he wished to meet up with her and that he wanted her to be his friend. She did not respond. Subsequently he forwarded another message to the effect that he had no "hidden agenda".
Such messages occurred whilst the respondent was aware that the patient was seeing a psychologist, Dr Claire.
The respondent stated to the section 34A interview that he had no recollection of these events. However in his statement of 23 May 2018, the respondent stated he recalled meetings with this patient.
Dr Howle considered that the conduct of the respondent, discussing his personal problems the patient, was totally inappropriate and would constitute a boundary violation. He also noted that when the patient declined to respond, the respondent persisted with messages. Dr Howle considered that such conduct "could be seen as predatory in nature", and invites strong criticism. The Tribunal finds that such conduct engaged in respect of this patient constitutes unsatisfactory professional conduct.

[42]

Complaint Nine

Particular (1): this patient is a female aged 23 years of age. She provided a statement to the New South Wales Police Force on 13 January 2015. She complained that approximately four weeks earlier she observed her left breast to be enlarged and accordingly contacted the Mayfield Medical Centre and was given an appointment the following day. The respondent informed her that he wished to conduct a breast examination and that it was protocol for him to request a female staff member to be present. A nurse duly attended and the breast examination took place. She states that the respondent used his fingertips and placed pressure around the breast area. When examining her nipple area he used his hand and his forefingers together straightened and pressed downwards. He then moved his wrist around. Dr Khan provided a prescription for Erythromycin 400 mg.
The patient then consulted a different general practitioner, Dr Drinkwater, on 26 November at the Mater Hospital who conducted a breast examination and arranged for an ultrasound. A copy of the ultrasound was forwarded to the respondent. On 7 January 2015 she states that she saw the respondent again, although the clinical notes record consultation on 8 January 2015.
The patient states that on this occasion Dr Khan conducted a further breast examination but not in the presence of a nurse. The respondent requested that she attend for a further consultation.
On 8 January 2015 the patient says that she again saw the respondent. On this occasion she was asked to remove her top and bra and whilst lying her back the respondent conducted a breast examination. She states: He then placed his right hand palm down on my sternum between my breasts and rubbed it up and down. He placed both hands on my breast taking one in each. He was squeezing them repeatedly using a firm gesture but not excessive pressure to cause pain. He then started squeezing my nipples with his fingers one at a time alternating hands with each squeeze. I started feeling a bit uncomfortable but believed he was doing a proper exam. Dr Khan said, "Am I making you feel uncomfortable?" I said, "No" as I still thought it was how an exam was supposed to be done. He started rubbing my breast more voraciously and moving his hand further down under my breasts and across my stomach then back up to around my chest and started beginning to rub my shoulders. He said, "Am I making you feel uncomfortable" I said, "Yes" He said, "May I kiss you" He used a very soft gentle voice unlike what he had used at any other time. It was kind of under his breath. He was looking me in the eye as he said it. I said, "No " shaking my head at the same time."
The respondent has denied that he ever undertook a breast examination of this patient or other patients. He stated at the section 150 hearing that: "I don't do breast examinations, mental health is my area of interest". In his responses to the s34A interview the respondent again reiterated that he did not conduct breast examinations. In his statement in response dated 23rd of May 2018 he claimed, in two places, that patient I was never included in the "hearing".
The medical records of Dr Khan dated 26th of November 2014 record, amongst other complaints," lumps in breast and started on abx by a doctor a week ago...". The diagnosis is recorded as: "Depression/Anxiety".
The records for 27 November 2014 record that the reason for the patient visit was asthma. No examination is recorded. Action included the prescription of Seroquel 25 mg.
The records also recorded the patient attended crying, complaining of cramps and nausea. They also record "mastitis?? And lumps in breast". The respondent prescribed Erythromycin, an antibiotic and ceased Avanza 30mg, an antidepressant. A specialist referral was made, to an Emergency department, presumably to Dr Drinkwater.
No record exists in the consultation notes for 26 November 2014 of any breast examination, nor in any subsequent consultations which occurred on 27 November 2014, 8th of January 2015 and 11th of January 2015. According to the patient's chronology, the conduct of which she complained concerning the breast examination must have taken place in November 2014.
The Tribunal makes its findings as follows:
As to Particular 1: in the circumstances, the prescribing of Erythromycin is not considered to be inappropriate. The Tribunal notes the observations of Dr Howle that such treatment has a limited spectrum of use. Nevertheless, the Tribunal does not consider that the description of such drug was untoward, and it does not constitute unsatisfactory professional conduct.
As to Particular 2: The Tribunal notes that Dr Howle was critical of such prescription in the absence of any diagnosis being recorded, particularly of the organic causes for the patient's abdominal pain being resolved. However the Tribunal notes that the patient had been diagnosed for depression/anxiety previously and was on a number of psychotropic medications. The Tribunal agrees with Dr Howle that the patient notes for 27 November 2014 are extremely brief. However, taking the background into account, the prescription for the patient was not inappropriate and does not constitute unsatisfactory professional conduct.
As to Particular 3: the Tribunal notes the clear conflict between the patient and the respondent concerning the events relating to the alleged inappropriate breast examination, and indeed whether it occurred at all. If the respondent is to be believed, no such examination took place.
The Tribunal notes that the statement of patient is detailed, including her record of what occurred after the consultation with the respondent. The Tribunal has been deprived of the benefit of seeing both the patient and the respondent. However the Tribunal accepts the version of the patient: the patient's statement records the events in detail which she states occurred. In addition, the Tribunal finds that the events which followed the consultation to be wholly consistent with a female patient having been subjected to such an experience. The patient immediately complained to the person who had driven her to the consultation. She also raised the matter immediately with a friend whose father is a solicitor and spoke to the solicitor. The Tribunal is satisfied that these events are wholly consistent with the patient having a genuine grievance and particular 3 is proven.
Accordingly the Tribunal finds the conduct of the respondent constitutes unsatisfactory professional conduct.

[52]

The Respondent's Material

Although the respondent has not participated in the hearing, the HCCC has referred the Tribunal to various matters which are set out hereunder. In the interests of procedural fairness, the Tribunal has had regard to all of the material supplied by the respondent, including an original response dated January 2016 in prior proceedings and his response dated 23 May 2018, and to his testimony given in the s 150 proceedings, in the s 34 A interview, and his affidavit evidence used in his appeal.
The evidence indicates that the respondent's wife departed Australia on 6 June 2015, and that the respondent believed that she may have left permanently. He commenced to drink heavily between July to September 2015 inclusive. As a consequence, resulting from his emotional turmoil due to his marital relations and loneliness in his wife's absence, the respondent reached out to patients.
The respondent sought out patients to whom he could seek solace who are both vulnerable, female, and in the main, patients to whom he had provided mental health treatment.
The records show that the respondent could have consulted a psychologist, such as Dr Claire. The records also show that the respondent was himself receiving antidepressant and anxiolytics treatment from his own general practitioners both preceeding and during his wife's absence. Such history indicates that the respondent could have sought additional direct assistance or referral to a mental health specialist from his treating practitioners, who appear to be colleagues in the same practice.
Even if the respondent was depressed, such depression is no justification for his conduct. The Tribunal notes that a psychiatrist, Dr Pek Ang was consulted by the respondent and that he has provided reports dated 18 November 2015, and second of May 2016. The earlier report records that diagnostically, the respondent has a major depressive disorder which was recurrent and was then in remission. He also had alcohol abuse in early remission. Such assessment was repeated in the second report.
Despite such diagnoses, they do not explain nor justify the respondent's misconduct towards the patients referred to in the complaints.

[53]

Findings: Summary

Irrespective of the challenges made by the respondent to certain particulars, the principal complaints which involved the sending of text messages of a personal nature to the patients referred to are unchallenged. The messages were flirtatious, salacious and of an entirely personal nature. The respondent has used his profession as a medical practitioner to make personal contact with the patients. Such conduct breaches the Code.
The Tribunal is satisfied that the conduct of the respondent is sufficiently serious to constitute "professional misconduct": It extends beyond mere unsatisfactory professional conduct. It was unethical, and improper, for the respondent to make contact with female patients, most of whom have been treated by him for depression, anxiety, or for other mental health issues. The selection of these patients for the respondent's purposes of seeking emotional support and solace is most disturbing. The respondent acknowledges that in one case, namely in respect of patient A, sexual motives were involved. The Tribunal considers it probable, despite the respondent's denials, that he also made sexual overtures to other patients the subject of these proceedings in his text or Viber messages and phone calls.
Since the respondent came into contact with such persons only because of his position as a general practitioner the conduct of the respondent was egregious. The sheer volume of the messaging to certain patients suggests that the practitioner was persistent and intrusive in his approaches. On some occasions the messages were salacious, for example, asking what clothing a patient was wearing. Further, the chronology establishes that he was claiming to the patient that he particularly needed their support, when he was doing the same to other patients simultaneously. The text messaging and Viber messaging, the visits to the patient's homes and a visit by the patient to his home, are unacceptable for a professional medical practitioner when there is no purpose medically for such contact. The breast examination of Patient I was plainly wrongful professional conduct.
The claims made for Medicare benefits in respect of item 2713 are indefensible. The respondent has no defence to the allegations contained in Complaint Ten that the itemised Medicare claims were inappropriate in respect of those claims which the Tribunal has found could not be justified, based on the information recorded in the patient records.
The respondent's conduct falls significantly below the expected standards of a medical practitioner, as considered in Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at [638]; Prakash v HCCC [2006] NSWCA 153 at [91]; Chen v Health Care Complaints Commission [2017] NSWCA 186 at [18] - [20].
The Tribunal has taken into consideration the assertions by the respondent that he was himself suffering from depression. The Tribunal accepts that the respondent may have suffered depression, anxiety and or an adjustment disorder during the period of separation from his wife. Such condition does not in any way constitute an excuse for his conduct.

Health Care Complaints Commission v Khan

At a glance

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Decision date

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Judgment (56 paragraphs)

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Legislation Cited (2)

Cases Cited (19)

Cited By (1)