Health Care Complaints Commission v Norus [2017] NSWCATOD 158 | Case summary

Complaint 1- facts

The practitioner admits the whole of complaint 1 including the particulars, with the exception only of paragraph (3)(iii). He admits that even without that paragraph the conduct he admitted constituted unsatisfactory professional conduct. The tribunal then considers first whether particular (3)(iii) was proved.
The medical records of the practice in which the practitioner worked in respect of Patient B show that he had consultations with doctors in the practice over the period 31 October 2008 to 19 September 2011. Up to August 2009 he saw Dr A in the practice. On 3 February 2011 it is noted that he had a long discussion with Dr A about Anger and depression. One of three stressors Patient B identified was "no affection from his wife". They discussed his stressors and how to deal with them. It is recorded that he said he never used violence, he knew how to control himself and "never been to police/no restrain order" Dr A recorded "Happy for me to discuss with his wife.".
Dr A saw Patient B on 24 March 2011. It is recorded amongst other things:-"Long discussion about family relations", "Issues with 1. Mistrust from wife. 2.showing no affection/forgiving", and "like to go back in track with his wife". It is recorded that they discussed the family stressors and plans to cope. It is recorded "look into common thing (sic) between the couple". It records that Dr A telephoned Patient A "and explained to her that [patient B] is still in love with her/appreciate for her he just need love/forgiveness, need her to understand his work circumstances".
Patient B saw Dr A again on 24 April 2009, 12 June 2009 and on 19 August 2009 but the clinical notes do not reveal that there was further discussion about Patient B's relationship with his wife.
Patient B saw the practitioner on 20 October 2009, but his matrimonial issues were not raised. On 18 January 2010 Patient B consulted the practitioner. The practitioner recorded: Long discussion about family relations. Again same issues with stepson who creates a lot of stress. Issues with 1. Mistrust from wife, 2. Show no affection/forgiving and always takes his son's side. …….. Like to go back in track with his wife. Family stressor discusses. Plans to cope……. See psychologist…...Family meeting next week. He just need love/forgiveness. Needs her to understand his work circumstances."
Patient B saw the practitioner again on 13 February 2010 and 16 February 2010 and his matrimonial issues were not discussed.
On 16 April 2010 Patient B saw the practitioner and the practitioner noted:- Long discussion about family relations/stepson left home for now. Issues with 1. Mistrust from wife, 2. Show no affection/forgiving and always take his son's side.…..…. Getting easily angry/upset. Not suicidal. Like to go back in track with his wife. Family stressor discusses. Plans to cope.
Patient B saw the practitioner again on 19 July 2010 but the matrimonial issues were not raised.
The clinical notes show that Patient B saw the practitioner on 6 December 2010 and although it appears to be have been a long appointment, there is no record of any discussions about the matrimonial issues.
The next consultation between the practitioner and Patient B was on 13 May 2011. On that occasion they did discuss the matrimonial issues. The clinical notes include the following:- He mentioned about his depression; He feeling down and stressed; Lack of sleep; Decreased motivation; Discuss options/offer- refer for couple counselling; - mediation between him and his step son; Try to discuss with his partner about common background. He is not keen on nay (sic) things but promise he will consider counselling.
The next consultation by Patient B with the practitioner was on 20 July 2011. Patient B was very positive about his state of health and emotional state. The practitioner advised Patient B to find a local general practitioner for easier follow-up as the practitioner was leaving the area.
Then for the consultation on 19 September 2011 there is no reference in the clinical notes to his problems with his wife. The practitioner admits that he had commenced personal text message communications with Patient B's wife, Patient A from around April 2011. And he had commenced a close personal and sexual relationship with her in around May 2011. The practitioner in his reply says that he ceased discussing Patient's B marriage with him prior to commencing his relationship with Patient A and the last occasion on which he discussed Patient B's marriage with him was 13 May 2011.
From when the practitioner was first consulted by Patient B on 20 October 2009, the practitioner had access to the confidential clinical records of Patient B, including material regarding his matrimonial issues. From April 2011 the practitioner had commenced a personal relationship and romantic relationship with Patient A by exchanging text messages and had placed himself in a position of having his personal interests conflict with his obligations to Patient B. He testified at the hearing that he had previously discussed with Patient B marital issues that Patient B had with Patient A and that at the consultation on 13 May 2011 he discussed with Patient B two possible options for marriage therapy; either Patient A and Patient B could try it between themselves at home, or they could go to "couples counselling".
He conceded this had occurred after he had commenced exchanging text messages with Patient A in April 2011 and had developed some degree of social intimacy with her as a result. Clearly his conduct when he began to establish a personal and romantic relationship with Patient A, had itself breached professional boundaries, but had also breached his obligations to Patient B. There is ample evidence to support a finding that from April 2011 the respondent continued to provide treatment to Patient B where there was a conflict of interest between his therapeutic relationship with Patient B, which included the problems Patient B was experiencing in his marriage to Patient A, and his relationship with Patient A.
The Tribunal concludes that para (3)(iii) of the particulars of complaint 1 has been proved on the balance of probabilities.
The Tribunal is satisfied that practitioner's admissions and other evidence prove the remainder of complaint 1 on the balance of probabilities.

Expert Evidence

Dr Simon Young was engaged by the applicant to give expert evidence in relation to the issue of whether any of the conduct particularised in complaint 1 constituted in paragraphs 1(a), 1(b), 2, 3 or 4 of complaint 1 came within the definition in para (a) or para (l) of the description in Section 139B of the National Law of unsatisfactory professional conduct.. Dr Young's qualifications to give the opinions in his report are extensive and appropriate and were not disputed.
In his report Dr Young referred to the New South Wales Medical Board Policy on Sexual Misconduct applied between 20 December 1991 and 8 November 2011 and also the document "Sexual Boundaries: Guidelines for Doctors" October 2011, and the "Code of Conduct for Doctors in Australia". He said:- "These guidelines iterate why breaching sexual boundaries is unethical and usually harmful due to power imbalance and concerns over trust and loss of objectivity."
He emphasised that doctors are responsible for establishing and maintaining boundaries with their patients.
Improper or Unethical Conduct
In R v Byrne (1995) 193 CLR 501 the High Court held "improper" meant not in conformity with standards of professional conduct and practice.
In Health Care Complaints Commission v MacGregor [2016] NSWCATOD 85 at [41] the Tribunal referred to dictionary definitions of "unethical" as "contrary to moral precept; immoral; in contravention of some code of professional conduct" and held that that definition should be applied in disciplinary proceedings under the National Law.
Complaint 1 Conclusions
The Tribunal is satisfied that the evidence, including the admissions of the applicant, proves the particulars of complaint 1. Accordingly, there is then the question of whether the conduct is unsatisfactory professional conduct under section 139B(1)(l) of the National law and applies in relation to one or more of the particulars.
Apart from particular (iii) that the practitioner disputed, but is found proved, the practitioner admitted that the remainder of complaint 1 was proved and together constituted unsatisfactory professional conduct being conduct that was "improper or unethical" and "related to the practice or purported practice of medicine".
The Tribunal is satisfied that the conduct in paragraph (3)(iii) of the particulars to complaint 1 was a breach of patient confidentiality and also involved placing himself in situation where his personal interests conflicted with the interests of patient B. That ethical misconduct came within paragraph 139B(1)(l) of the National Law definition of Unsatisfactory Professional Conduct.
In relation to particular (2)(vi) Dr Young's opinion was that disclosing his own marriage problems to Patient A, the practitioner's conduct fell significantly below the standard expected of a practitioner of an equivalent level of training and experience at the time and invited his strong criticism. It was unethical conduct in breach of the professional boundaries. It was unsatisfactory professional conduct.
With regard to particular (1)(a) Dr Young's opinion is that it was a breach of professional boundaries integral to a good doctor/patient relationship. Those boundaries promote good care for patients and protect both parties. It was a breach of the code and professional standards. Dr Young's conclusion was the conduct was significantly below the standard expected of a practitioner of an equivalent level of training and experience and invited his strong criticism. It was also unethical as a breach of the boundaries and was therefore unsatisfactory professional conduct.
Regarding particular (1)(b) (commencing to send regular personal text messages in or about April 2011 to Patient A), Dr Young's opinion is that doing this after attending her son's 19th birthday celebration, was conduct significantly below the standard expected of a practitioner of an equivalent level of training or experience applicable at the time of the conduct and invited his strong criticism. It breached the boundaries of professional conduct and was improper and unethical conduct. It was unsatisfactory professional conduct.
In relation to particular (2)(i) (the commencement of a sexual relationship less than one month after the cessation of the therapeutic relationship), Dr Young's opinion was that it was also "significantly below the standard expected of a practitioner of an equivalent level of training or experience applicable at the time of the conduct" and invited his strong criticism. It was unethical and improper conduct breaching the professional boundaries. It was unsatisfactory professional conduct.
Dr Young's opinion in relation to particular (2)(ii) is the same. It was a continuance of the same conduct. It was therefore unsatisfactory professional conduct.
In relation to particular (3)(viii) Dr Young opined that the conduct of the practitioner in continuing to provide treatment to Patient B after he had formed a sexual relationship with Patient A in mid-May 2011 was significantly below the standard expected of a practitioner of an equivalent level or training or experience applicable at the time of the conduct and invited his strong criticism. It was unethical and improper conduct in breach of the professional boundaries and was therefore unsatisfactory professional conduct.
In relation to particular 4 of complaint 1 (Failure to maintain proper professional boundaries by taking Patient C, the son of Patient A, out for dinner). Dr Young concluded that this conduct breached professional standards and professional boundaries. It fell significantly below the standard expected of a practitioner of an equivalent level of training or experience applicable at the time of the conduct and invited his strong criticism. It was unethical and improper and therefore it was unsatisfactory professional conduct.
Accordingly particulars of complaint 1 have been proved and establish 8 instances of unsatisfactory professional conduct.
Complaint 2 Conclusions
The practitioner has admitted that because of unsatisfactory professional conduct particularised in complaint 1 the practitioner is guilty of professional misconduct.
The Tribunal finds that the instances of unsatisfactory professional conduct established under complaint 1 when considered together amount to conduct of a sufficiently serious nature to justify the suspension or cancellation of the practitioner's registration. And therefore together constitute professional misconduct.
Complaint 3 - Impairment
This complaint is that the practitioner has a vulnerability to suffer major depression and also has dependent and narcissistic personality traits and these conditions constitute a mental impairment, disability, condition or disorder that detrimentally affects or is likely to detrimentally affect his capacity to practice the profession of medicine.
In his reply, the practitioner admits that he suffers from vulnerability to major depression and dependent and narcissistic personality traits. He says that his medical conditions are "currently controlled by the treatment regime imposed by the New South Wales Medical Council on 24 May 2016 and that whilst he continues to receive such treatment, his medical condition is unlikely to detrimentally affect his capacity to participate in the profession of medicine".
The Practitioner's Other Evidence
The applicant's statement in the proceedings is a 14 page document of 8 August 2017. He said that he grew up in Hofuf, Saudi Arabia until 2002. He had four younger siblings and one older sister. He was born in October 1967 and was about 35 when he left Saudi Arabia. He said he started leaving home for long periods for overseas trips from when the practitioner was about ten years of age. His father was absent for months at a time and the family often did not know when he would return.
They often ran out of money before he returned. He helped his mother look after his four younger siblings when his father was away. He started working at an early age helping an uncle to sell clothes earning an income to support the family. He obtained a driver's licence at 15 years of age and drove students to and from school for a fee. The family often did not have enough money for food when the father was absent and were assisted with gifts of food or money by neighbours or by obtaining food on credit from the local grocer on the basis that he would be paid when his father returned. When one of the family became sick while the father was away, doctors would often treat the person on the basis that they would be paid when the father returned. He married his wife when he was 21 and she was 16. It was an arranged marriage.
After moving to Australia in 2002 the practitioner worked at Sydney Hospital as an intensive care registrar until he moved to a rural area to work in a general practice in 2004. He was one of only three doctors in a small country town in New South Wales. They left the town in 2013. His wife and family moved to Sydney but he opened up a practice in a coastal village on the north coast as a sole practitioner. There was no other medical practitioner in the village.
By May 2016 the practitioner had engaged in an extensive self-study in the previous two years. He had read extensively on medical ethics. Also he had enrolled and completed an 11 week online medical ethics course with the Sydney University School of Public Health. The course commenced in mid-February 2016. He also attempted to attend a bioethics course run by Monash University in 2005 and could not locate a locum for the relevant period. He was proposing to attend that course in 2016.
In his oral evidence he talked about the stressors in the marriage in about 2010. He said that his wife and he were living separately in the house, he suffered erectile dysfunction, he stopped taking the medication for depression, the children were having some difficulties at school, and he had put on considerable weight. His sexual erectile dysfunction continued and in 2011 he was trying to help his brother escape Saudi Arabia and come to Australia. He said that by 2011 he was aware that he was very vulnerable.
In his statement the practitioner testified that at the time he began exchanging text messages with Patient A his relationship with his wife had broken down and she had left the regional town and gone to Sydney, taking his children with her. He experienced an overwhelming sense of isolation. His brother decided against moving to the town and he was suffering weight gain and impotence from the medication he was taking. At that time he stopped the medication. He says he had low self-esteem and at the time the attention he received from Patient A by way of text messages it felt like "the only positive thing in my life at the time. It was a new experience that felt exciting and almost exhilarating".
The practitioner said that since May 2016 he has adopted a 'formal approach" with his patients. Whilst he is always compassionate, he never discloses any personal details to his patients. He does not refer to patients by their first names, but rather by their surnames, and he asks that they refer to him as 'Dr Norus'. He does not provide his personal contact details to any patients and all patient contact is directed through his receptionist. He no longer contacts patients directly and communications from his surgery are made by his reception staff. He does not attend social gatherings with his patients. He does not lend money to patients. He has declined a number of social invitations from patients. He is also being wary of any signs of boundary crossings such as patients offering gifts, requesting late appointments, posing questions of a personal nature. He maintains his formal approach in those areas.
By May 2016 he was working only four days per week, not working at weekends and not doing after hours work. He was also taking regular holidays with his family. He had re-engaged in his hobbies and was spending time listening to music and reading.
At the end of 2016 he closed the practice and returned to Sydney to live with his family. He has reconciled with his wife, closed the country practice and returned to work in Sydney in order to reside with his family fulltime. Another of the reasons for the move was that he could be closer to his support network and his family. Another was that he had fallen behind in the paperwork for the practice and the patient load and the commuting between the village and Sydney had become overwhelming.
From December 2016 he was working as a general practitioner in a medical centre in a suburb of Sydney and doing weekend work at another medical centre at an adjacent suburb. Both of them were group practices. He was working 45 hours per week between the two practices. He was working on each of the seven days of the week. He had done that for the 6 to 8 weeks prior to his statement as he was trying to raise the money to fund his legal costs in these proceedings.
At the time of his statement he said that his intention was to move to full-time work at one of the practices working only week days. It is the practice where Dr Carl Bazergy, his supervisor, is the director. There are four other general practitioners employed in the practice, two registrars, a full-time nurse every week day, a psychologist who works one day a week, a podiatrist that works one day a week and a physiotherapist who works two days a week. The practice is a teaching practice and employs a medical educator and runs regular evening teaching sessions every week.
The practitioner says that the steps that he has taken since 2011 to ensure that he never again lets himself, his family, or his patients down the way he did with Patient A include that he has read extensively to educate himself on medical ethics. He has completed the course described earlier. He said that he has also realised that being a good doctor also requires him to look after his health and to make sure that he takes time out when he needs to. He has made it a priority to keep himself in the best physical and mental health possible with a daily goal and he ensures that he exercises every day.
He has established a work/life balance to manage his thoughts and emotions. He has resumed his hobbies including music and reading and he spends as much time as he can with his family. He has breakfast with his wife in the mornings now and looks forward to seeing his children after work. He has a strong support network in Sydney. His brother and he have since reconciled. He meets with his brother a few times each month. Their relationship, he says, is "very good". He also has a number of close friends and no longer feels isolated.
His son who suffers Sickle-Cell Anaemia is at university in Poland studying medicine. He has a daughter who is in her second year of a law degree at university. He has another daughter completing her first year of a law degree in Australia. He has a son who is in Year 11 in a Sydney high school. Apart from the child in Poland, the other three children reside in the family home in Sydney.
The practitioner also supports his mother who is now aged and continues to live in Saudi Arabia. She has never had employment and she has never been able to participate in any paid work and relies upon the practitioner for financial support. The practitioner continues to support his son, born of the relationship between him and Patient A, by payment of child support and spending time with him.
All telephone calls from patients are directed through the surgery and he does not provide his direct contact details. He now only directs patients by their last names and encourages them to do the same with him. He never discusses any personal matters of his with any patients. If patients ask him personal questions he politely turns away to deflect those questions. He offers patients the option of a chaperone being present before he conducts a physical examination. During the course of examinations he reminds patients that they need to inform him if they are in any discomfort or distress. If they express discomfort he ceases the examination.
He does not attend social events with any patients and keeps his dealings with patients on a strictly professional level. The patients have sought financial assistance from him but he informs them that he cannot assist as it would not be ethical. He also does not accept gifts from patients for that reason. He says that he is now more aware of the way he communicates and interacts with patients and he is able to say "no" whilst maintaining compassion and rapport. He says: "I am very careful not to be seduced by things that appeal to my ego. I am constantly working with my treating practitioners to better address my vulnerabilities"
He recognises that working in a group practice has been fulfilling for him. He said he feels more supported and "no longer bear a whole practice load on my own". He also appreciates being able to discuss patients and cases with colleagues. He says that the conditions imposed by the Medical Council have assisted him a great deal. His evidence is that Dr Marion Coffey is his GP and counsellor and he sees her every eight to ten weeks and complies with the treatment regime she prescribes for him. He says that Dr MacDowell is assisting him to work through the "shame and guilt I have regarding the relationship with Patient A and is helping me to implement steps to understand my behaviour so that I can prevent the conduct from recurring. Dr MacDowell monitors me for any relapses, monitors my depression and manages my medications."
He acknowledges the benefit he has had from his consultations with Mr Pignataro, the psychologist. He sees him every month.
He said in his statement:- Mr Pignataro has challenged me during the course of treatment on a number of occasions. He assists me to explore and understand my motivations and weaknesses which gave rise to my transgression. Whilst he has raised issues with which I may not always feel comfortable, I have chosen to assist with the treatment relationship in order to gain as much as I can from it.
He has had Dr Bittar as his mentor since his practice conditions were imposed. He has discussed his practice with Dr Bittar on a number of occasions since he commenced as his mentor. He said there was a pause in their meetings because he was unable to pay Dr Bittar's fees for acting as his mentor. He has since reached an arrangement for payment and regular communication has resumed.
His supervisor is Dr Carl Bazergy and he sees him every Thursday and some Saturdays. He said he is hoping to commence working on a full-time basis with Dr Bazergy in a few weeks.
The practitioner said in his statement:- 101. I feel a great deal of shame and remorse about my conduct in 2011. Mostly I am disappointed at myself at letting Patient A, Patient B, Patient C, my family and myself down. 102. I recognise that as a treating practitioner I was in a position of power. My patients placed a great deal of trust in me, and I abused the trust of Patients A, B and C.
He also expresses his regret at "the pain and suffering of how his conduct negatively impacted Patient B and constituted a breach of the trust of Patient B towards him as his GP".
He concluded his statement saying:- I am deeply remorseful for what I have done, and I take active steps every day to ensure that I am mindful and purposeful in my behaviour so that I maintain appropriate boundaries with my patients. He said in his cross-examination that he now sees that "it is wrong to discuss the health of a patient by text" and he does not do that at all because it is out of the clinical context, he is not seeing the patient and you lose control; "the patient takes advantage, takes over; the boundaries become blurred". He said that the use of text messages with a patient starts with nothing personal but gradually becomes personal. The patient's expectations change. When asked how he thought the relationship between him and Patient A became intimate, he said "When boundaries are blurred you see each other differently". He said the patient was experiencing problems and needed reassurance and he was stressed and looking for comfort.
At the time of the Tribunal hearing the practitioner had become part of a group practice in suburban Sydney. He had established regular routine sessions with a treating GP and counsellor (Dr Coffey) every 4 to 6 weeks. She monitors him for any relapses, his level of depression and manages the prescription of his medication. He was seeing a psychiatrist, Dr Christopher MacDowell, who was assisting him to put in place measures to minimise the risk of such conduct occurring again. He was continuing to attend on Mr Pignataro, the psychologist.
He had located a GP in a medical practice in Sydney to act as his mentor. The doctor has some understanding of the practitioner's cultural background and he was arranging to see her every 6 to 8 weeks as his mentor. He said he is from Sri Lanka and he knows the practitioner's background. He was empathetic and supportive. He said the arrangement involves "sharing difficult problems". He said "his 'note taking' has 'changed a lot since 2012' and he is now doing 'health plans' ". He said he has learnt from reading the other doctor's notes.
In cross-examination he said that he does not want to ever work as a solo practitioner again. He said the reasons are that he wants to have support, wants to be able to share workload, he wants to achieve work/life balance, and he wants to experience how others deal with patients. He said that other practitioners all know about his depression problems and other issues and he does not want to work in a rural practice any more. He said that since he has had had a supervisor he has twice had ethical problems and he has discussed them with his supervisor. He said there are three senior practitioners in his present practice and they are all available for advice. He also said that he could approach the Medical Council for advice or the Medical Defence Team.
The practitioner said that he can manage his vulnerabilities, "I have to be in a good state of mind". He said he has "a problem of a distorted idea of self-concept; how you perceive yourself and your value". He said that he now does not need people to tell him "what I do is good. I do my best". He said that he has discussions about "narcissistic traits" and he said it is "when you feel good and it is because you feel good about yourself". When asked whether he can set clear boundaries for himself, he said "It starts from the brain and also, he said that he had implemented changes such as not giving his private phone number, not feeling 'bad' about things, not socialising with patients, and having patients call him 'Dr Norus'".
He said he needs to continue seeing Dr MacDowell and have him continue prescribing his medications. He said that they also discussed that he has reduced the medications to some extent and they are continuing with discussions about his guilt, his vulnerabilities and Dr MacDowell is providing advice. He proposes to continue seeing his psychologist and discussing mainly his vulnerabilities; identifying them and how they came about, and what he can do to deal with them. He also discussed protective factors such as his relationship with his wife and distorted values, and vulnerabilities such as accommodating people and always saying "yes".
He stressed that he proposes to continue seeing his psychologist, psychiatrist, and general practitioner, regardless of the outcome of the proceedings'. He said that when he was working seven days per week he had no option because he needed to finance representation in these proceedings. He said that to be in a good state of mind, he needs time with his wife, time for music and other recreations, and needs to be able to recognise early signs of depression. He said he needs to sleep well, eat well and know his role in life.
He said that he has coping strategies for the risk factors which include that his relationship with his wife is much stronger than he thought it could be, that they are open about any problems or financial difficulties, he can be vulnerable with her whereas he could not before, and he has the support of his brother now and the support of his minister, his mentor and his supervisor. He said that his relationship with his brother is better now that now they are not so isolated.
He concedes that his son's health will always be a risk factor and that he still has to raise substantial funds to pay for him to have surgery in the United States. He said they may have to sell their home to pay for the surgery. Estimates have been close to $1,000,000.00. He said his son lost his spleen and gall bladder and may have to lose a kidney.
He proposes taking weeks off occasionally and working one weekend of every two and to work only four or five week days per week. He said he sees about 35 patients per day.
Evidence of Dr Samuels
The evidence of Dr Anthony Samuels, a psychiatrist, is contained in medical reports of 8 April 2016, 15 July 2016, 26 December 2016, 23 February 2017, 8 June 2017 and August 2017 and also his oral evidence at the hearing.
Dr Samuels was appointed by the Medical Council of New South Wales to assess the practitioner and report. He reported that the practitioner has suffered serious depression from time to time since 1999 when his eldest son was diagnosed with Sickle-Cell Anaemia. Since coming to Australia in 2004, Dr Norus has suffered from three particularly serious bouts of mental illness. In 2005 he attempted suicide and was twice admitted to the psychiatric ward at Bankstown Hospital for a period of ten days. In 2008 he suffered another breakdown but was not hospitalised. The final depressive episode occurred in 2011 when he unilaterally ceased taking medication and was not attending his regular treating doctor, Dr Marion Coffey.
In 2004 and 2005 he had multiple admissions to the Mental Health Ward at Bankstown Hospital. In 2011 and 2012 he attended the Centre Health Medical Centre at Menai where he saw a clinical psychologist and then saw Mr Pignataro at a psychology centre in Burwood in 2012 on three or four occasions. He continues to see Dr Coffey. One of the stressors that he has had was that in 2005 he had a brother in prison in Saudi Arabia awaiting beheading for becoming a Christian. He was also concerned that his own activities may worsen his situation. His visa was about to expire and his work demands were very high. He had been diagnosed as suffering an adjustment disorder with depressed mood and major depression.
The practitioner told Dr Samuels that his father was a rich businessman who travelled a lot. He lived at home with his mother and five siblings. He was the eldest. His mother could not drive and she was not literate. There were tensions between his mother and his father. His father is 16 years older than his mother. The practitioner was a Shiite Muslim and when he left home to study medicine he went to a university where everyone else was Sunni. He was isolated and teased and this was a very traumatic period in his life. He still has flashbacks to this time. He completed his medical studies in 1995. He came to Australia in 2003 and intended to obtain a fellowship in intensive care but eventually he gave up that ambition. He became an Australian citizen in 2004. At about that time his brother was arrested in Saudi Arabia for becoming a Christian. His brother later obtained a reprieve and moved to Australia in 2011.
Dr Samuels in his report of April 2016 diagnosed that the practitioner suffers from an impairment by way of a vulnerability to major depression and has had some quite significant depressive episodes over the years. He also diagnosed that he suffers from personality vulnerabilities which stem from his developmental experiences.
Dr Samuels recommended that because of the underlying impairments the practitioner should have a period of monitoring and oversight through the Impairment Program. He recommended that conditions be imposed on the practitioner's registration being the following:- 1. That he undertakes that he does need to see a psychiatrist. He indicated that he has made an appointment with a Dr MacDonald. He should see the psychiatrist at a mutually agreed frequency, he should accept the psychiatrist's treatment advice and recommendations; 2. He should undertake psychological therapy with Mr Anthony Pignataro and he should make every effort to explore the aspects of his personality and vulnerabilities that prevented him from setting limits and managing the doctor/patient relationship appropriately; 3. He should continue in a mentoring and supervisory relationship with another health professional who will provide some oversight and direction in regard to his practice and assist him in the event of any problems he might experience in terms of maintaining professional boundaries; 4. He should take any medications as directed; and 5. He should complete the courses that he has indicated that he will formally undertake in relation to ethics and professional practice; and he should be reviewed by the Council appointed psychiatrist in around six months' time.
After the incidents in the rural practice which led to these proceedings, the practitioner left that town and later obtained a position as a sole practitioner in a practice in a coastal village on the north coast. He was working Monday to Thursday from 8:00 am to 7:00 pm and on Friday for half the day. He was travelling to Sydney to be with his family at weekends.
He saw Dr Samuels on 15 July 2016 and Dr Samuels reported to the Medical Council that the practitioner had lost about 55 kilograms and was exercising a lot. He said he had continued the practice arrangements, although except he was only working a half day on a Thursday and might drive to Sydney, arriving in the evening and then leaving Sydney on the Monday morning at about 4:00 am for the 3½ hours to 4 hours' drive.
He reported that his relationship with his wife "was extraordinarily good".
He was continuing to see his psychiatrist, Dr Chris MacDowell about monthly and his psychologist, Mr Pignataro monthly. He found contact with both of them to be very helpful. He spoke also about suffering childhood sexual abuse, which he had not been able to discuss previously and had now discussed with his wife. He was seeing his GP, Dr Coffey generally monthly. He had been having difficulty obtaining a supervisor and was still without one.
Dr Samuels reported that "the practitioner's moods seem to be very stable and the practitioner seemed to be insightful about the events that have occurred". His opinion was that the practitioner was complying with all the conditions and seemed to be setting appropriate boundaries with the former Patient A, "but still managing to maintain a relationship with his now four year old son". He said in his conclusions: Dr Norus does, in my view, continue to suffer impairment within the meaning of the Law; namely a mood disorder that is currently in remission and he has, in my view, underlying personality vulnerabilities that are being well managed by his psychiatrist and psychologist. It is possible that he has been able to discuss some early developmental issues with his treating practitioners.
Dr Samuels recommended the current conditions as being appropriate. He said he had asked the practitioner to discuss the supervision issue further with the Medical Council as it was clearly a difficult issue.
In his report dated 26 December 2016, Dr Samuels reported:- "In terms of personality vulnerabilities it is my view, as a consequence of some earlier adverse developmental experiences including his relationship with his father and a traumatic incident in childhood, there have been some impacts upon his personality functioning. Dr Norus is now undertaking some psychotherapy and is beginning to deal with some issues from the past and, in fact, has also managed to talk with his father about some very significant events as well."
He said that as a result of the early developmental issues, while he did not think there was clear evidence that the practitioner had developed a personality disorder, he did believe that he displays evidence of some dysfunctional personality traits, "particularly dependent and narcissistic personality traits". He said that "a consequence of those being that he had issues of low self-esteem, he needed approbation and positive feedback from others, he had a desire to please others at times to the detriment of his own needs, and when he perceived rejection there is a risk that he could respond to feelings of psychological discomfort in a pathological way."
He expressed the view that the events that led him to notice of the Medical Council relate to his underlying personality vulnerability and that the relationship with his patient developed in the context of feeling somewhat rejected and abandoned by his wife and, an interplay of factors that led him to becoming susceptible to involvement in this inappropriate relationship.
In his oral evidence Dr Samuels adhered to his opinions expressed in his most recent report in August 2017. He said that the practitioner's depression is very reactive and the stressors in play in creating it included his marital issues, family issues, his weight gain, impotence, impecuniosity and his son's health problem. His opinion was that the practitioner has now made significant gains, explored some painful issues, such as early sexual abuse, and understands more about the dynamics of his relationship with his father. He said that the practitioner has more recently been more effective in setting boundaries with patients and most significantly to respond to his psychologist's statement that he was narcissistic in that he rejected the proposition, but did not walk away from it and tried to understand why the psychologist arrived at that position. Dr Samuels said that his vulnerabilities remain and will take years for him to develop better responses and strategies about how he manages the stressors. He says there are still some underlying issues which include his relationship with the patient and their child, these proceedings, and the issues with his son's health.
He said that there are still problems that the practitioner needs to confront and now he is more likely to seek help and therapy. He said he "needs to do it sooner rather than delay".
Dr Samuels recognised that the psychologist's role is important to the practitioner as he provides an overview of the situation, his personality etc. and is able to provide the practitioner with feedback on his conduct as it occurs. He says that eventually, the practitioner may not need to take medication all the time.
He said it would be better for the practitioner if he had a mentor on-site and the mentor was able to observe his workload and maybe advise him to reduce it if needed. An on-site mentor would be consulted for advice much quicker and would be able to observe the practitioner's moods and emotions. When he spoke about the practitioner's need to please others, he said that an on-site mentor would more easily discuss those issues.
Dr Samuels said that all the things that the practitioner is now doing are making him better able to deal with issues. He said that he considers the practitioner should work week days only and have weekends work-free.
Dr Samuels said in his oral evidence that the practitioner is "basically well-intentioned, but vulnerable". He said he is "committed to reform" and his risk is "quite low, but vulnerable in particular circumstances".
He said "the mood disorder and his personality are continuing and are not going to stop". He said "he has to cope with them". He said that the practitioner would be better working in the city rather than a rural area or anywhere where he is isolated. He said he would be better working in a group practice. Dr Samuels in cross-examination expressed the opinion that if the practitioner receives a suspension and returns after the suspension "he will have to use whatever supports he has. My main concern is what happens after suspension - e.g. taking on more work than he should to make up financially".
Dr Samuels also said that he no longer believes that the practitioner has a narcissistic personality disorder and that he is mostly functioning quite well. He said he thinks the practitioner has a combination of personality traits; some narcissism and some dependent and these are more likely to be affecting him in times of stress.
When asked at the hearing about what the effect on the practitioner would be if he were suspended for six months, he said it would cause him considerable stress and he would become more stressed and anxious. But his greater concern was the risk factor that on return to work, he may overwork to compensate for the financial loss and be stressed and overwhelmed.
It should be noted that apart from the matters complained about, Dr Samuels was impressed by the practitioner's clinical skills, including patient records, and they were of, and often better than, the expected standard for a doctor of equivalent training and experience.
Evidence of Dr MacDowell
Dr MacDowell has been a practising psychiatrist since 1993. He testified that his view now is that the practitioner may not have a narcissistic personality disorder, but he believes that he has some dysfunctional personality traits including narcissistic personality traits. He has been treating the depressive disorder. He continues to review the practitioner's mood, and activities that have occurred in the previous month. He reviews also compliance with medication and reactions, and reviews the behaviour of the practitioner. He has been impressed by the considerable increase in the practitioner's understanding the impact of his conduct on others. He says the practitioner is much more insightful. He says that his personality instability and vulnerability may be life-long and is hard to change, but it can be addressed by better insight and by his personal arrangements.
He supported the use of supervision, group practice and mentoring on-site. He said the practitioner is a greater risk in a small community where patients can become your friends and part of your social life. He said there have been a lot of improvements that have contributed to the practitioner now being more relaxed. He said that the "treatment" includes supervision, a mentor, a psychologist etc and also being close to home. He said if his medication regime is not complied with there would be an "unacceptable risk". He said that the arrangements will be for the long-term.
Evidence of Dr Bazergy
Dr Bazergy has been the practitioner's supervisor since July 2017. He is a principal of the group practice in which the practitioner works in a Sydney suburb. He has been a general practitioner since 2003. He first met the practitioner in November or December 2016 when he came to the practice as a locum through an agency. He has since been employed in the practice since December 2016 or January 2017.
Dr Bazergy said he meets him regularly for coffee or between patients and they discuss work issues. He said he receives a lot of positive feedback from staff and patients regarding the practitioner. He said initially he worked with them on Sundays only and then later Saturdays as well and the last few months he has worked weekdays only. He said the practitioner is going to change to full-time with the practice within a couple of weeks. He said that he intends to continue to be the practitioner's supervisor if there is an order or condition requiring supervision. When asked whether he intends to continue that role if a supervisor is ordered or required as a condition, he said it will depend on the level of supervision required. He said he is not in the practice full-time. When asked if he would do Category C supervision, he answered "absolutely".
In a statement to The Tribunal, he said he had been a practitioner for 14 years. He said he was aware of the conditions imposed on the practitioner's registration. He said he had known him for eight months since he had been working in the practice and had been his supervisor for about one month. He said: During this time David has displayed exceptional skills as a general practitioner. He has excellent patient rapport, outstanding communication skills, exemplary clinical assessment and management skills, and has demonstrated a commitment to team work. The feedback I have received from staff, colleagues and patients has been impressive. Over such a short period of time he has become a valuable member of our medical centre. It would be a pleasure to continue working with David."
Dr Bazergy said in oral evidence that the practice could keep a position open for the practitioner but not longer than 6 Months.
Evidence of Dr Marie-Anne Hockings
Dr Marie-Anne Hockings provided a statement in the proceedings. She has never met the practitioner face-to-face. They began email communication in July 2016 when he was looking for a supervisor. She acted as his supervisor for the first five months of this year with monthly one hour telephone communications. He was transferred to another supervisor in Sydney a few days before their scheduled practice visit. The evidence is that during her discussions, the practitioner:- repeatedly expressed his extreme contrition. The events that led to his needing supervision occurred in the context of professional isolation when he himself was psychiatrically vulnerable. The current support structures of group practice, mentorship, supervision, psychiatric and psychological care are likely to mitigate against further offending.
Evidence of Psychologist, Mr A Pignataro
Mr Pignataro is a consultant clinical psychologist. He has seen the practitioner on a monthly basis since 14 May 2016. He has been a clinical psychologist working in adult mental health from 1999 to 2004 and subsequently full-time in private practice in Sydney. His view that the practitioner has not exhibited any signs to suggest that his condition is not under control. He said: "He appears to be managing the demands of work, family and extended family obligations with [the son of him and patient A] without concerns. Work ability and capacity to be responsible for patient care is without concern at this time."
His opinion is that the conditions mandated by the Medical Council are adequate. He also said: I further opine that Dr Norus has developed a greater appreciation of the benefits of working in a group medical practice where there is the available support both instructional and emotional from his peers. This has provided him with a structure of support and validation that is required at this time. He would benefit continuing in the long-term to be involved in a group practice.
The treatment that he has provided to the practitioner is described as "psychoanalytical psychotherapy". The focus has been on exploring his "underlying unconscious motivations related to concerns with identity, impulse control, mood and interpersonal functioning".
He says that the practitioner has been compliant with treatment. He said:- Dr Norus is emerging with insight into his behaviour that led to a significant upheaval both personally and professionally. It has been difficult for him at times to explore his personal history as it has been confronting to accept the extent of his psychopathology and the dysfunction that it has created. He often expresses remorse over his past actions.
He also reported on the practitioner's level of pathological accommodations and issues raised over the recent months. He said: His behaviour to serve, to accommodate, to provide material and to ensure the happiness of others was enshrined by the family system that was conditioned by a paternal figure that was emotionally absent and unavailable. For example, he became highly responsible at an early age in which he had to act in a paternal role to care for his mother and siblings while his father was abroad entertaining relationships with other women. This was a common activity. The family endured a significant financial stress while the father was absent. His mother was supporting the numerous demands of children without support. During a therapy session, he highlighted the difficult family environment when on one occasion his father had returned home from a trip abroad with a female friend, which he introduced to the family as his new partner and subsequently accommodated her in the family home. The family had to accept that there was now an additional woman in the house and that was intimately related to the father.
Mr Pignataro reported there had been gradual gains in the overall mental state and functioning of the practitioner. He said that mood stability had improved with reduced hopelessness and increased reflective capacity, particularly in appreciating the influence of early developmental history that was arrested because of impaired parental attachment models that have disturbed his self-organisation and his capacity to reflect on behaviour. He said that the probability of similar boundary violations occurring in the future is related to existing protective factors and the relationship of those to existing risk factors.
He said in terms of the positive factors the relationship with his wife has become supportive and understanding, he has a support network at work. He is enjoying his work and enjoying working in a group practice. His new job has become rewarding professionally, personal relationships with friends have also been supportive, and the stability in self-esteem and intimacy at present are serving as protective factors. He said that he did not believe the practitioner's practice of medicine would be adversely affected "unless there is a significant rupture of highly valued attachments and self-concept is once again compromised". He said that he does not believe that in the present circumstances Dr Norus poses a risk to the public as a medical practitioner.
He said:- There is no evidence of impulsivity, irresponsibility, aggression or manipulativeness that suggests significant psychopathy is evident and affecting his capacity to work and demonstrate care to self and others. Furthermore interpersonal problems are not present. Relational problems with the wife, children and [Patient A] have not been reported. As well, he is gradually developing greater insight into concern with self-concept, which has been challenging to do.
It is his opinion that:- If the practitioner continues to comply with the treatment regime mandated by the Medical Council conditions and continues to develop insight into his impaired attachment functioning that resulted in the boundary violations and the relationship of attachment and the development of self-organisation and the protective factors remain in place, he will continue to be less of a risk to the public.
When asked about the effects on the practitioner if his registration is cancelled or suspended, Mr Pignataro said it would be "huge". He identified work as one of the protective factors for the practitioner. He said he my lapse into depression and possibly be suicidal. He was concerned too about the effects on his family. Those (including the financial effects) would contribute to the stressors for the practitioner.
Evidence of Dr Bittar
Dr Bittar had been the practitioner's mentor since October 2016. They had not met face-to-face but only by telephone. The contact has been on four occasions and Dr Bittar completed a statement on 28 July 2017. He said that the practitioner told him he was in a busy country practice seeing about 50 to 60 patients daily. He said that he believed when the practitioner moved to Sydney for more support he contacted Dr Bittar in April 2017 and informed him that he was working in two practices in adjacent suburbs in Sydney with his supervisor working in one of the practices.
He said from his conversations with the practitioner that the practitioner took full responsibility for his actions that led to the complaint against him. He said he was concentrating on looking after himself, his family and his career. He said that the practitioner told him he had stopped giving his personal mobile number to patients, attending social events of patients, and attending patient's homes and was working on measures to control his emotions and feelings.
He said that the practitioner contacted him once again in May to discuss work-place issues. He was working for a corporate chain and struggling to maintain a continuing care with his patients. They discussed the Medicare items wording and how to adapt to a team approach in a large practice.
Complaint Three (Impairment) - Conclusion
The Tribunal found on the balance of probabilities that the practitioner suffers from an impairment within the meaning in s5 of the National Law by way of Major Depression, which impairment is currently managed and "in remission". He also has dependent and narcissistic personality traits, which he is addressing in regular therapy. He has taken significant steps to reduce his vulnerabilities. If he continues working they are likely to continue to be managed through the present conditions of his registration.
Orders Sought
The applicant seeks an order for the suspension of the practitioner/s registration for six months. The practitioner opposed any suspension order.
The practitioner has practised continuously in the six years since the offending conduct without any other complaint. Given that: he is extremely remorseful about his misconduct and its impact on others; his health and personal problems that contributed substantially to the practitioner's professional misconduct are now in remission or well managed; he has taken significant and sustained steps to develop insight into professional boundaries and unethical conduct; and the extensive and positive changes he has made to his professional practice, management of his health problems and his life generally; the Tribunal concluded that the practitioner is not currently unfit to practice and protection of the public or of the reputation of, and public respect for, the profession does not require cancellation or suspension of his registration. Nor in the particular circumstances is it required to deter the practitioner or other practitioners from such conduct.
Dr Samuels expressed his concern that the practitioner avoids stress that he is likely to experience from long working hours and heavy workloads. He particularly mentioned the need for him to not work 7 days per week, and to have some weekends with his family. He emphasized that familial support is important for management of his health problems. The Tribunal therefore decided that the protection of the public required a further condition of the practitioner's registration that he not do clinical work for more than 45 hours in one week or more than nine hours in one day.
The Experts and both parties agreed that the present conditions on the practitioner's registration should be continued if he is practising. The Tribunal finds that such conditions are currently required for protection of the public.
There should also be a non-publication order to protect the privacy of the patients referred to in the proceedings.
Costs
The applicant seeks an order for the Respondent to pay the Applicant's costs. The applicant has been successful in its application. The practitioner was found guilty of professional misconduct and was found to be suffering from an impairment.
The respondent did not establish any factor that might mitigate and there was therefore a costs order as sought (HCCC v Philipiah [2013] NSWCA 342).
Orders
Accordingly the orders were: 1. The Respondent is guilty of Professional Misconduct 2. The Respondent is reprimanded; 3. The present conditions of the Respondent's registration as a medical practitioner are to continue for a further year from today and then be reviewed by the NSW Medical Council; 4. The Respondent's registration is subject to a further condition that he must not perform clinical work for more than 45 hours in one week or more than 9 hours in one day; 5. The Tribunal notes the assurance by the Respondent's counsel that he will promptly engage a general practitioner; 6. The Respondent must pay the costs of the Applicant of, or incidental to, these proceedings as agreed or as assessed; and 7. Publication or broadcast without the permission of the Tribunal of the name or other identifying information of any patient or family member of a patient in these proceedings is prohibited.

Health Care Complaints Commission v Norus

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (18 paragraphs)

Parties

Cases Cited (3)