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[2017] NSWCATOD 158
NCAT Occupational
2017-08-10
Dr J, Mr P
Original judgment source is linked above.
Introduction
PRACTICE CONDITIONS 1. To obtain Medical Council of NSW (the Council) approval prior to changing the nature or place of his practice. 2. To advise the Medical Council of NSW in writing at least seven days prior to changing the nature or place of his practice. 3. To practice under category C supervision in accordance with the Medical Council of NSW's Compliance Policy - Supervision (as varied from time to time) and as subsequently determined by the appropriate review body).
HEALTH CONDITIONS 1. Not to prescribe for self-medication. 2. To attend for treatment by a general practitioner of his choice, at a frequency to be determined by the practitioner and the treating practitioner. To authorise his treating practitioner to inform the Medical Council of NSW of failure to attend for treatment, termination of treatment or if there is a significant change in health status (including a significant temporary change). 3. To attend for treatment by a psychiatrist of his choice, at a frequency to be determined by the treating psychiatrist. To authorise his treating psychiatrist to inform the Medical Council of NSW of failure to attend for treatment, termination of treatment or if there is a significant change in health status (including a significant temporary change). 4. To attend for treatment by a psychologist, of his choice, at a frequency to be determined by the treating practitioner. To authorise the treating practitioner to inform the Medical Council of NSW of failure to attend for treatment, termination of treatment or if there is a significant change in health status (including a significant temporary change). 5. To take any medication prescribed by his treating practitioners. 6. That the extent of his professional medical duties is to be guided by his health status and the advice of his treating & Council Appointed Practitioners. 7. To attend for review by the Council Appointed Psychiatrist on a three monthly basis or as otherwise directed by the Medical Council of NSW, at the Council's expense. 8. To attend a Review Interview at the Council in three months or as otherwise directed by the Medical Council of NSW. 9. To authorise the Medical Council of NSW to forward copies of this Decision, subsequent Council Review Interview reports and other information relevant to his impairment to the Council Appointed Practitioners and his treating practitioners.
The Complaints - Grounds for the Application (Including Particulars)
COMPLAINT ONE The practitioner is guilty of unsatisfactory professional conduct under section 139B(1)(l) of the National Law in that the practitioner has: 1. engaged in improper or unethical conduct relating to the practice or purported practice of medicine. 2. Each of the particulars 1(a), 1(b), 2, 3 or 4 of the Complaint in itself justifies a finding of unsatisfactory professional conduct. In the alternative, when two or more of the particulars are taken together, a finding of unsatisfactory professional conduct is justified.
BACKGROUND TO COMPLAINT ONE The practitioner was first registered with AHPRA on 27 November 2002. At all relevant times he was employed as a General Practitioner at the Dorrigo Medical Centre. Between 2008 and 2011 the practitioner provided treatment to Patients A to C.
PARTICULARS OF COMPLAINT ONE 1. Patient A attended the practitioner for treatment between 28 October 2008 and 24 May 2011. She consulted him for a variety of reasons including mental health concerns, smoking cessation, weight gain and cannabis addiction. Whilst Patient A was a therapeutic patient, the practitioner failed to maintain proper professional boundaries in that he: 1. contacted Patient A via telephone in or around April 2011 and asked her permission to take her close family member, Patient C, out for a birthday celebration and suggested that she accompany them; 2. commenced sending regular personal text messages in or around April 2011 to Patient A. 1. Following the cessation of the therapeutic relationship with Patient A on or around 24 May 2011, the practitioner failed to maintain proper professional boundaries by commencing a close personal and sexual relationship with Patient A in circumstances where: 1. the commencement of a sexual relationship occurred less than 1 month after the cessation of the therapeutic relationship; 2. Patient A became engaged to and fell pregnant to the practitioner in or around July 2011 and gave birth to their child in April 2012; 3. the duration of the therapeutic relationship was around 3 years and included log-term psychological treatment; 4. Patient A had been diagnosed and treated by the practitioner for depression, anxiety and marijuana addiction and was therefore especially vulnerable; 5. Patient A had discussed her ongoing marriage problems with the practitioner; 6. (vi) the practitioner disclosed his own marriage problems to Patient A; 7. (vii) the practitioner provided treatment to Patient A's four sons on various occasions between 2008 and November 2011; 8. (viii) the practitioner provided treatment to Patient A's husband, Patient B, on various occasions between 2008 and September 2011, including in relation to his mental health which involved discussion of his marital problems with Patient A. 1. Patient B attended the practitioner for treatment between 31 October 2008 and 19 September 2011. From around April 2011 the practitioner failed to maintain proper professional boundaries by continuing to provide treatment where a conflict of interest existed in that: 1. He had commenced personal text message communications with Patient B's wife, Patient A, from around April 2011; 2. He had commenced a close personal and sexual relationship with Patient B's wife, Patient A, in around May 2011; 3. The therapeutic relationship included discussion of Patient's B marriage to Patient A. 1. Patient C attended the practitioner for treatment between 24 September 2008 and 30 November 2011. In or around April 2011 the practitioner failed to maintain proper professional boundaries by taking Patient C out for dinner.
COMPLAINT TWO The practitioner is guilty of professional misconduct under section 139E of the National Law in that he practitioner has: 1. engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration (Particular 1, Particular 2 or Particular 3), or 2. engaged in 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 the suspension or cancellation of the practitioner's registration (any combination of particulars that includes Particular 1, 2, or 3).
BACKGROUND TO COMPLAINT TWO See background to Complaint One.
PARTICULARS OF COMPLAINT TWO 1. Complaint One and the particulars thereof are repeated and relied upon both individually and cumulatively.
COMPLAINT THREE The practitioner has impairment within the meaning of section 5 of the National Law, being a physical or mental impairment, disability, condition or disorder (including substance abuse or dependence) that detrimentally affects or is likely detrimentally affect the practitioner's capacity to practice the profession of medicine.
PARTICULARS OF COMPLAINT THREE 1. The practitioner suffers from: 1. vulnerability to Major Depression; and 2. dependent and narcissistic personality traits
The Evidence The evidence comprises the following:- 1. Volume 1 of the HCCC documents tabulated and indexed (47 tabs); 2. The respondent's materials containing 9 documents indexed and tabulated; 3. Oral evidence of Dr Anthony Samuels on 8 August 2017; 4. Oral evidence of the respondent practitioner on 8 August 2017; 5. Oral evidence of Dr Chris McDowell on 9 August 2017; 6. Oral evidence of Dr Bazergy on 9 August 2017 (including particulars); 7. Oral evidence of Dr M Coffey on 9 August 2017; 8. Oral evidence by Dr H Bittar on 9 August 2017; and 9. Oral evidence of Dr J Pignataro on 9 August 2017;
Complaint 1- facts
Unsatisfactory Professional Conduct
Professional Misconduct
Expert Evidence
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: 03 November 2017
Health Care Complaints Commission
Norus