"I did not at any stage threaten to make a complaint about him if he didn't contact me. I really wanted to see him again because he had been so nice to me." "This account is entirely consistent with the reported basis for the patient's overdose on the night of the 6th September where she reports to RN Heffernan that she "overdosed on 20 dolased tablets….stated that she was feeling rejected and angry about a recent casual sexual encounter with a doctor (NB named him only as Julian) gave her a lift home a few nights ago". The Vodafone records also make plain that between 5 and 6 September 2013 the patient texted the Respondent three times and called him once (maybe twice) with no response from the Respondent to either text or phone calls on those days."
- The Respondent's submissions on this matter, in asserting that we must have regard to all of the circumstances from which any inference can reasonably be drawn as to the accuracy of the statement, rely on some matters which are said to be either inconsistent or incorrect. These are asserted to detract from the overall reliability of the statement, and in particular, from so much of the statement that alleges that the Respondent spent time at the home of Patient A on 1 September 2013. The Respondent points to the following matters:
1. In her statement, Patient A said that she went to the Emergency Department on the second occasion for her back pain. In her statement, nurse Heffernan said that Patient A presented on that occasion for "anxiety." The clinical notes for 1 September 2013 indicate that Patient A arrived by ambulance and that her presenting problem was "unwell." The triage comment is that the patient was alert without any undue signs or symptoms. There is a handwritten note that she was said to be feeling better when she approached triage including the comment "called a taxi - left The D." The relevant ambulance notes on that occasion indicate that Patient A had consumed a litre of vodka during the evening, she had been in a bad mood, and was described as having a "psychiatric problem." Accordingly, there is a clear inconsistency between this material in the statement and the other available corroborative evidence.
2. Reliance is placed on the content of the handwritten note on the hospital records on 1 September 2013 indicating that a taxi had been called for Patient A and that she left the Emergency Department. However, this notation does not assist in evaluating whether there is any inconsistency in the statement made by her about what happened later that evening. The position would arguably be different if there was a notation to the effect that she had left the hospital grounds by taxi.
3. There were said to be inconsistencies concerning the date that the alleged sexual contact occurred. The statement does not give a date. It refers to an attendance at the Emergency Department "a few weeks" after her previous attendance, which is clearly 1 August 2013. On 7 September 2013, Patient A told Ms Heffernan that she had sexual contact with a doctor from the Emergency Department "a few nights ago." On the same day, Dr Amiani noted that she had been told by Patient A that the encounter had occurred "a couple of weeks before." In our opinion, the inability or, arguably, the failure of Patient A to specify a particular date does not introduce any matter of inconsistency or controversy which would detract from reliance overall on her statement. The relevant date, 1 September 2013 may readily be confirmed because of corroborative evidence that indicates that this was the only other time apart from 1 August 2013 when Patient A and the Respondent met, and there are aspects of the evidence of the Respondent which clearly confirm the version of events given by Patient A up until the time when she said that he drove her home.
4. It was said that there were inconsistencies in the description given by Patient A about the nature of the sexual contact said to have occurred. In her statement, Ms Heffernan said that Patient A told her that after she and the Respondent had arrived at her home, that they had had a coffee and:
...then (they) had sex. (Patient A) told us they'd had full sexual intercourse. I asked about sexual health and she said oh I'm okay, he used a condom. She also said but he was more interested in giving me oral sex because he'd read a book about it and he felt was very good at it. I remember she said he actually was quite good at it. She also commented that he was quite hairy.
Ms McMahon, in a statement, said that Patient A had telephoned her on 9 September 2013. She said that she had not been given a voucher (which we take to refer to a taxi voucher) when she attended the Emergency Department "recently" and was looking for a lift home. Patient A said to her that she was given a lift home by an Emergency Department medical officer "and they had oral sex and he stayed with her overnight." When Patient A attended on a Psychologist, Bradley Jones, in October 2013 he obtained a history which he included within a report stating that Patient A engaged in consensual intercourse with the doctor. She also said that subsequently the doctor has sent her text messages requesting further "intimate contact" with her. The statements and this information was said to be inconsistent with a reference in the statement relied upon by the Complainant to kissing and oral sex. We are not convinced that these asserted inconsistencies are such that they would allow us to decline to accept what Patient A says occurred on the relevant evening. There is no suggestion that anyone ever questioned Patient A concerning the precise details of the sexual activities which she alleged that she and the Respondent engaged in. Without descending into unnecessary detail, we observe that oral sex may, in ordinary language, be subsumed within the rubric of sexual activity. It may take place in addition to other forms of sexual engagement.
1. The Respondent rejected the assertion of the Complainant that Patient A in her statement gave a "precise description" of the internal appearance of the Respondent's motor vehicle. The only reference was to the fact that she was "pretty sure it was manual." Furthermore, the Respondent said that he had frequently spoken with people at the hospital about his motor vehicle and he was passionate about it. It was the Respondent's submission that this was a rare and distinctive car that was usually parked within 100 metres of the front entrance of the hospital, and could easily have been described to someone without ever travelling in it. As against this submission, Patient A stated that the motor vehicle was parked down a side street and, in the circumstances, this must cast some doubt on whether it could be easily seen from the entrance to the hospital. There is no suggestion by the Respondent that he discussed the type and make of his motor vehicle with Patient A when he met her outside the Emergency Department on 1 September 2013, or that he told her where it was parked.
2. At all times in her statement, Patient A referred to the Respondent as "Julian". It was the Respondent's evidence that after he had returned from a visit to Italy in 2007 he had reverted to using his Italian name, Giuliano. Presumably, in these circumstances, we should infer that there was never a reference made by the Respondent in any of his conversations with Patient A to Julian.
- Significantly, the Respondent was deprived of the opportunity to test the contents of the statement made by Patient A by way of cross examination, and in particular the highly prejudicial assertions concerning the circumstances of his alleged visit to her home and the fact that consensual sex had occurred. It was said that when one coupled the disadvantage to the Respondent of being denied the opportunity of cross-examining Patient A and testing her allegations with the asserted inconsistencies we could not be "comfortably satisfied" that the sexual conduct and other events occurred "having regard to the gravity of the conduct alleged and the possible consequences."
- The determination of this matter is essentially one of impression informed by the principles to which we have earlier made reference. We approach this matter by reference to these principles, and the relevant factual circumstances as we have described them. We particularly have reference to the extract of the judgment of Dixon J in Briginshaw referred to previously, which although directed to the issue of proof of adultery, may by analogy be applied to proof of sexual conduct.
"Upon an issue of adultery in a matrimonial cause the importance and gravity of the question make it impossible to be reasonably satisfied of the truth of the allegation without the exercise of caution and unless the proofs survive a careful scrutiny and appear precise and not loose and inexact. Further, circumstantial evidence cannot satisfy a sound judgment of a state of facts if it is susceptible of some other not improbable explanation. But if the proofs adduced, when subjected to these tests, satisfy the tribunal of fact that the adultery alleged was committed, it should so find."
- Of course, this matter would be easier to resolve if we had before us the testimony of each of the Respondent and Patient A, and each of them had been questioned concerning their evidence. In these circumstances, it is easier, but not necessarily easy, to make a determination about whether we could be comfortably satisfied that a sexual encounter had taken place. However, Patient A has not given evidence, has not been cross-examined on it, and we have not had an opportunity of assessing her truthfulness by reason of the testimony itself, and her demeanour.
- Overall, we are persuaded that even though Patient A has not given evidence, and the Respondent has been prejudiced by an inability to cross-examine her on it, there are nevertheless so many instances where her statement on matters that are able to be corroborated has been corroborated that we are prepared to accept her unsworn and untested statement that she and the Respondent had consensual sex in her home on 1 September 2013 as alleged by her. The circumstances as she has narrated them in her statement about what occurred when she first met the Respondent on 1 September 2013 outside the Emergency Department, the detail about walking to the Respondent's car, her description of the car, her reference to the personal details of the Respondent including how he liked his coffee, and the telling corroborative evidence of the mobile phone records to which we have earlier referred, in the aggregate allow us to be comfortably satisfied that the Respondent had consensual sex with Patient A at her home as alleged in the complaint. Furthermore it is much more likely that the Respondent would have engaged in the admitted flirtatious message exchanges with Patient A following a sexual encounter than if he had merely had the brief conversation on the evening of 1 September that he said occurred. We do not accept the inconsistencies identified by the Respondent as being of a sufficient nature to detract from our overall conclusion in this regard. Accordingly, we accept the submissions of the Complainant upon this point which we have set out in some detail and partly verbatim.
- In accepting and relying on the statement, we repeat that we found many aspects of the Respondent's evidence to be unconvincing. Much of his evidence was given by way of ex post facto rationalisation, using words such as "I must have", "I would usually" and the like. We are, accordingly, more comfortable in accepting and relying upon the statement of Patient A as to what occurred on 1 September. We do not accept that the Respondent wrote out the script on 1 September, and mistakenly dated it 4 September. All of the evidence including his knowledge of Patient A's details, and the dates of his access to the hospital computer records of Patient A, and the other matters corroborates the issue of the script on 4 September.
- We now come to deal with each of the complaints and their particulars.
PARTICULARS OF COMPLAINT ONE
Particular 1: On 1 August 2013 the practitioner failed to adequately assess and treat Patient A's clinical presentation in circumstances where he failed to adequately consider or exclude a possible diagnosis of hypovolaemia secondary to fluid or blood loss, possible gastrointestinal bleeding or gastritis, or a cause for the new complaint of shoulder pain.
- This particular directs attention to the clinical presentation of the patient, and a failure to consider or exclude particular conditions and a failure to diagnose a "new complaint" of shoulder pain. On presentation there was a history of two episodes of dark streaked vomiting. The only record in the clinical notes made by the Respondent is "Black small amount blood stranding," but the Respondent in his evidence thought that what was believed to be blood was in fact "burnt toast." There is no record in the clinical notes about burnt toast. The written responses made by the Respondent to the Complainant which we have earlier set out, and the Respondent's own evidence makes it clear that he had evaluated Patient A by reference to the fact that she had been fast tracked, and this had led him to focus on her shoulder complaint and what he perceived to be her desire for help with analgesia.
- In his evidence, the Respondent said that the record in the clinical notes of the blood stranding is a reference to what the patient said, and is not a reference to any conclusion he came to after viewing what he said was a piece of burnt toast. Likewise, the Respondent said that he examined this patient for some 15 to 20 minutes and that this showed that he had, in fact, undertaken an appropriate examination and assessment of this patient, including her shoulder condition.
- In her statement, Patient A does refer to showing the Respondent what she had "spat up" and confirms that she told the Respondent about her shoulder, although she denies that the Respondent examined her.
- There is also a paucity of information recorded in the clinical notes concerning the patient's shoulder condition. Whilst the Respondent gave evidence concerning certain detailed assessment of the shoulder condition, we found it unconvincing. Certainly the Respondent was unable in evidence to proffer any diagnosis of the cause of the shoulder pain.
- The Complainant relies upon the expert opinion of Dr McCarthy who did have available to her the responses made by the Respondent to the Complainant which we have earlier summarised, but obviously was not privy to the oral evidence given by the Respondent in these proceedings. It was the opinion of Dr McCarthy that the Respondent had failed to provide appropriate clinical care, and had failed to adequately assess and treat the patient as alleged in the complaint. In expressing her opinion Dr McCarthy was forced to rely on the omissions from the clinical notes made by the Respondent which she described as "not extensive or complete, or sufficient to indicate that appropriate clinical care occurred."
- This reference to the inadequate clinical notes of the Respondent creates the conundrum with which we are faced in determining some of the issues in these proceedings. In endeavouring to comprehend the conduct of the Respondent in determining whether particular 1 of this complaint has been made out, we are compelled to have regard to what is known, but is not recorded in the clinical notes because of the Respondent's admission that they are inadequate and contain significant omissions. The Respondent says he did conduct a comprehensive examination, and did consider appropriate diagnoses, and did refer the patient for an ultrasound and prescribed medication. Although not specifically stated, we assume that he did not consider matters such as a diagnosis of hypovolaemia because he did not consider that there was any loss of blood and that the patient had vomited up burnt toast.
Particular 2: On 1 August 2013 the practitioner inappropriately prescribed oxycodone (20 x 5mg tablets), a Schedule 8 drug of addiction to Patient A, together with a single take home dose of oxycodone 5mg, in circumstances where he,
a) failed to adequately assess and treat Patient A's presenting symptoms;
b) failed to adequately investigate Patient A's complaint of shoulder pain;
c) failed to exercise responsible medical judgment as to whether it was appropriate to issue such a prescription and/or provide a take home dose.
- The Respondent denied particulars (a) and (b), but admitted (c).
- We apprehend that the gravamen of this Particular is directed to the shoulder pain. There is no suggestion that this substance was prescribed for anything but the asserted shoulder pain. We have previously determined that the Respondent failed to adequately assess and investigate the patient's complaints of shoulder pain. To this extent, we find this particular proven. Whether and to what extent there was a failure to treat the presenting symptoms of shoulder pain would arguably depend upon diagnosis. In the absence of any diagnosis, and in the absence of any suggestion that the Respondent should have made a diagnosis on the spot, we do not find this aspect of particular (a) proven. Otherwise, we find (a) and (b) proven.
- In view of the formal admission made, we find particular (c) proven.
Particular 3: The practitioner failed to keep an adequate record of Patient A's presentation to the ED and acted contrary to clause 7 of the Health Practitioner Regulation (New South Wales) Regulation 2010, by not recording,
a. an assessment of the reason for the tachycardia or dizziness;
b. any inquiry as to the possibility of blood in the vomit;
c. any detail of a physical examination of the abdomen or right shoulder.
- The Respondent admitted particulars (a) and (c). We find them proven.
- The Respondent denied particular (b) because his clinical record of "small amount blood stranding" was said to be representative of an enquiry into the possibility of blood in the vomit. The Complainant rejects this submission because the particular focuses attention on an "adequate record" of an enquiry as to the possibility of blood in the vomit, rather than a mere mention of such a possibility. We agree. In our opinion an adequate record would have described in some brief detail the complaint made by the patient, the fact of examination of the material said to have been vomited up, and the conclusion arrived at after that examination. It follows that the record made by the Respondent was inadequate and we find this particular proven.
COMPLAINT TWO
Particular 1: Between approximately 11pm on 1 September 2013 and 6am on 2 September 2013 the practitioner failed to maintain proper professional boundaries in that he,
a. agreed to drive Patient A home from the ED;
b. accepted Patient A's invitation to go inside her home for coffee;
c. inappropriately engaged in sexual contact with Patient A whilst at her home.
Particular 2: On 2 September 2013 the practitioner failed to maintain proper professional boundaries whilst at Patient A's home in that he,
a. Disclosed personal details to Patient A, such as his age and the suburb where he lives;
b. Inappropriately asked for Patient A's mobile telephone number.
Particular 3: Between 2 and 22 September 2013 the practitioner failed to maintain proper professional boundaries in that he made 1 telephone call and sent 9 text messages to Patient A.
- In essence, the Complainant relies upon the material contained within the statement of Patient A in seeking to prove Complaint Two. We have already considered in some detail the weight which should be given to this statement. For reasons which we have previously set out we are comfortably satisfied to the standard established in Briginshaw that the circumstances set out in particulars 1 and 2 have been established, relying on the material contained in that statement in preference to the evidence of the Respondent on these matters. We again point to the events which occurred after the early hours of 2 September 2013 by way of mobile phone text exchanges, mobile phone calls, the issue of a prescription for Diazepam as promised as all indicating that the evidence of the Respondent should not be accepted where it conflicts with the statement of Patient A about what occurred on the evening of 1 September 2013 and the early morning of 2 September 2013.
- We are comfortably satisfied that Particular 1 of this complaint has been made out.
- In the absence of any plausible explanation as to how Patient A came to learn of the Respondent's age and the suburb where he lived, and in view of the other evidence to which we have already referred, we are comfortably satisfied that Particular 2 (a) has been made out. Likewise, we are comfortably satisfied that the Respondent asked Patient A for her mobile telephone number, as this is a more plausible explanation for his telephone call early on 2 September 2013 rather than his tentative suggestion that that call may have been made as a result of seeing a missed call from her.
- We are comfortably satisfied that Particular 2 of this complaint has been made out.
- We note the admission by the Respondent of Particular 3 and we formally find that it has been made out. We note also in this context the written admission by the Respondent that he "engaged in flirtatious text message exchanges" with Patient A.
COMPLAINT THREE
Particular 1: On 4 September 2013 the practitioner inappropriately prescribed diazepam (25 x 5mg tablets), a Schedule 4D drug to Patient A in circumstances where,
a. the prescription was given in response to Patient A's request and without a medical consultation;
b. the practitioner sent the prescription by post directly to Patient A's home address;
c. the practitioner issued the prescription without appropriate clinical assessment, including a medication history, to determine if Patient A was using a similar drug or abusing benzodiazepines, or had other contra-indications.
- The Respondent concedes that Particulars (a) and (c) have been made out, except that he asserts that the prescription was issued on 1 September 2013. He denies Particular (b).
- It will be remembered that the statement of Patient A refers to a conversation at her home on the evening of 1 September 2013 during which the Respondent promised to provide her with a prescription for Diazepam. The Respondent's version is that the prescription was requested by the patient outside the Emergency Department when they met that night. There is no suggestion that the patient gave the Respondent her personal details including her address to enable him to write out a prescription in the Department, as he alleged. There is no record of the Respondent having accessed her computer patient records at that time. There is, of course, a record of the Respondent having accessed those records on 4 September 2013, the date shown on the prescription. The Respondent said that this was the incorrect date, and he must have inserted it because he was tired.
- In his oral evidence, the Respondent gave a number of explanations as to how he may have accessed the online computer records of the patient by using an open record which might have already been logged in by a colleague. He also speculated that he might have asked the patient for her address before re-entering the Emergency Department or after returning with the prescription. We note that the Respondent does not profess to have a detailed recollection of what occurred, and these explanations are proffered by him as representing a "credible" account of what could have happened. In the absence of any assertion by the Respondent of any particular recollection of what occurred, there is no basis upon which we should accept the assertion of the Respondent that the prescription was in fact issued by him on the evening of 1 September 2013, although it was dated 4 September 2013 in circumstances where the Respondent had accessed her computer records that day. The prescription was filled on 6 September 2013 which is consistent with it having been received by mail as asserted by the patient in her statement shortly after 4 September 2013. The reference to the content of the voice messages concerning the issue of the prescription corroborates this conclusion. For completion, we do not accept the explanation proffered by the Respondent as to the possible reason for the access he made to the records of this patient on 4 September 2013, being to write up her clinical notes. It beggars belief that he would have done so on that day for the purpose of writing up notes of an examination which had taken place more than a month previously. There is no credible reason for the Respondent to have accessed the computer records of this patient on 4 September 2013 other than for the purpose of obtaining her personal details to enable him to write out and post a prescription for Diazepam that day.
- For these reasons we are comfortably satisfied that the Respondent issued the prescription the subject of this complaint on 4 September 2013 and sent it by mail to the home address of Patient to A. We find this complaint proven.
Unsatisfactory Professional Conduct
- Each of the complaints 1 to 3 alleges a breach of section 139B of the National Law. Complaint One alleges a breach of sub sections (1)(a) and (b), and complaints Two and Three each allege a breach of sub sections (1)(a) and (l). These provisions are in the following terms:
139B Meaning of "unsatisfactory professional conduct" of registered health practitioner generally [NSW]
(1) "Unsatisfactory professional conduct" of a registered health practitioner includes each of 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.
(b) A contravention by the practitioner (whether by act or omission) of a provision of this Law, or the regulations under this Law or under the NSW regulations, whether or not the practitioner has been prosecuted for or convicted of an offence in respect of the contravention.
………………………………
(l) Any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession.
For the purpose of sec 139B(1)(b), the following provision applies;
HEALTH PRACTITIONER REGULATION (NEW SOUTH WALES) REGULATION 2010 - SCHEDULE 2
SCHEDULE 2 - Records kept by medical practitioners and medical corporations in relation to patients
(Clauses 7 (1) and 8 (4))
1 Information to be included in record
(1) A record must contain sufficient information to identify the patient to whom it relates.
(2) A record must include the following:
(a) any information known to the medical practitioner who provides the medical treatment or other medical services to the patient that is relevant to the patient's diagnosis or treatment (for example, information concerning the patient's medical history, the results of any physical examination of the patient, information obtained concerning the patient's mental state, the results of any tests performed on the patient and information concerning allergies or other factors that may require special consideration when treating the patient),
(b) particulars of any clinical opinion reached by the medical practitioner,
(c) any plan of treatment for the patient,
(d) particulars of any medication prescribed for the patient.
(3) The record must include notes as to information or advice given to the patient in relation to any medical treatment proposed by the medical practitioner who is treating the patient.
(4) A record must include the following particulars of any medical treatment (including any medical or surgical procedure) that is given to or performed on the patient by the medical practitioner who is treating the patient:
(a) the date of the treatment,
(b) the nature of the treatment,
(c) the name of any person who gave or performed the treatment,
(d) the type of anaesthetic, if any, given to the patient,
(e) the tissues, if any, sent to pathology,
(f) the results or findings made in relation to the treatment.
(5) Any written consent given by a patient to medical treatment (including any medical or surgical procedure) proposed by the medical practitioner who treats the patient must be kept as part of the record relating to that patient.
2 General requirements as to content
(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.
(3) All entries in the record must be accurate statements of fact or statements of clinical judgment.
3 Form of records
(1) An abbreviation or shorthand expression may be used in a record only if the abbreviation or expression is generally understood in the medical profession in the context of the patient's case or generally understood in the broader medical community.
(2) Each entry in a record must be dated and must identify clearly the person who made the entry.
(3) A record may be made and kept in the form of a computer database or other electronic form, but only if it is capable of being printed on paper.
4 Alteration and correction of records
A medical practitioner or medical corporation must not alter a record, or cause or permit another person to alter a record, in a way that obliterates, obscures or renders illegible information that is already contained in the record.
5 Delegation
If a person is provided with medical treatment or other medical services by a medical practitioner in a hospital, the function of making and keeping a record in respect of the patient may be delegated to a person other than the medical practitioner, but only if:
(a) the record is made and kept in accordance with the rules and protocols of the hospital, and
(b) the medical practitioner ensures the record is made and kept in accordance with this Schedule.
COMPLAINT FOUR
- This complaint is brought under section 139E of the National Law, which is in the following terms:
139E Meaning of "professional misconduct" [NSW]
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.
- The Complainant alleges that in the aggregate all of the findings which we have made concerning the conduct of the Respondent constitute professional misconduct, and we should so find.
- A determination of whether conduct constitutes professional misconduct rather than unsatisfactory professional conduct involves the exercise of a value judgement about whether that conduct would justify suspension or cancellation of the registration of the Respondent, whether or not such a determination is ultimately made. Suspension or cancellation of registration are contained within a number of orders which may be made by way of "protective orders." These orders are intended primarily to protect the public from the practice of medicine by health practitioners whose continued practice might otherwise unduly affect the safe practice of medicine for the benefit of the public. In addition, it is recognised that protective orders of this kind may be made also to provide a deterrent to other health practitioners who might be dissuaded from engaging in misconduct of this kind and also to promote the public confidence in the practice of medicine. Accordingly, in determining whether the Respondent in these proceedings is guilty of professional misconduct we must have regard to these matters.
- Prima facie, all conduct which may be characterised as unsatisfactory professional conduct is serious. We have previously set out the statutory definition as contained in section 139B of the Act, and it follows that the conduct which we have found to have been proven, much of which was admitted by the Respondent must be regarded seriously.
- The Complainant submitted that the most serious area of misconduct of which the Respondent is guilty concerns the breach by him of the professional boundaries which apply to all health practitioners in their relationship with patients. The Medical Board of Australia has established a Code of Conduct to provide guidance for health practitioners on sexual boundaries in the doctor-patient relationship. The Code of Conduct emphasises qualities "such as integrity, truthfulness, dependability and compassion" and in addition to competence a prohibition against doctors taking advantage of patients. There is particular reference in the code to professional boundaries which include "never using your professional position to establish or pursue a sexual, exploitative or other inappropriate relationship with anybody under your care." On 28 October 2011, the Board issued guidelines for doctors which were intended to complement the Code of Conduct. Sexual misconduct is said to include engaging in sexual activity with a current patient regardless of whether the patient consented to the activity or not and with a person formerly under a doctor's care. The guidelines include, significantly the following:
The doctor-patient relationship is inherently unequal. The patient is often vulnerable. In many clinical situations, the patient may depend emotionally on the doctor. It is an abuse of this power imbalance for a doctor to enter into a sexual relationship with a patient.
Conclusion
- Having regard to the seriousness of each of the areas of unsatisfactory professional conduct which we have found, and to which we have earlier referred we are of the opinion that, in their totality, they should be characterised as constituting professional misconduct and we so find.
- The proceedings are stood over for further hearing on 26 April 2016, when we shall hear submissions from the parties concerning the nature and extent of any protective orders that should be appropriately made consequent upon our findings of professional misconduct. The parties are directed to confer with a view to reaching sensible agreement about what evidence each of them will seek to adduce in connection with the stage 2 hearing, and, if possible, the exchange of submissions. In the event that such agreement cannot be reached, we grant liberty to apply which may be exercised by the presiding member.
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: 05 April 2016