Health Care Complaints Commission v Oladiran

Complaint Two

1. Complaint Two is a further complaint of unsatisfactory conduct under the National Law.
2. It is alleged that the HCCC wrote to Dr Oladiran on 22 May 2017, seeking his response to the complaint against him. Dr Oladiran replied to that request in writing on 15 June 2017 by means of a letter from his solicitor, Mr Saxton, which was written on his instructions.
3. In the particulars to Complaint Two, the following allegations are made: In his response dated 15 June 2017, the practitioner provided false and/or misleading information to the Commission when he stated that: (a) he did not have a sexual relationship with Patient A; (b) Patient A did not enter his room at the XXXX Hotel in XXXX;
4. The false denials in the letter of 15 June 2017 were partially corrected in a further letter to the HCCC from Mr Saxton dated 21 February 2018.
5. A further letter of 5 December 2018 was sent to the HCCC by Dr Oladiran. In that letter, Dr Oladiran set out a question asked of him by the HCCC under s 34A of the Health Care Complaints Act 1993 and answered that question: Q9 Your reasons for inviting [Patient A] to your hotel room. Did you engage in conduct that would be considered to be sexual in nature with [Patient A] in your hotel room? Does the conduct also including having sexual intercourse with [Patient A]? When did [Patient A] leave your hotel room? A9 [Patient A] parked her vehicle in front of the hotel or very close by to my recollection and we walked back together from the restaurant. She accompanied me to my room. I agree that there was conduct that would be considered sexual in nature and we had sexual intercourse. We both fell asleep and she woke me up at some stage to say she was going home. I cannot recollect the exact time.
6. We find that the particulars of Complaint Two have been established on the balance of probabilities. Dr Oladiran has admitted that his response of 15 June 2017 was false and therefore misleading.
7. The HCCC was established under the Health Care Complaints Act 1993. The objects of that Act are set out in s 3: 3 Object and principle of administration of Act (1) The primary object of this Act is to establish the Health Care Complaints Commission as an independent body for the purposes of: (a) receiving and assessing complaints under this Act relating to health services and health service providers in New South Wales, and (b) investigating and assessing whether any such complaint is serious and if so, whether it should be prosecuted, and (c) prosecuting serious complaints, and (d) resolving or overseeing the resolution of complaints. (2) In the exercise of functions under this Act the protection of the health and safety of the public must be the paramount consideration.
8. It is an offence under the Health Care Complaints Act 1993, s 99, to knowingly furnish the HCCC with information which is false or misleading in a material particular.
9. The provision of false information to the HCCC has the real potential to undermine its statutory function as the authority which investigates and prosecutes complaints in relation to health service providers.
10. Dr Oladiran's conduct in providing false and misleading information to the HCCC was improper and unethical conduct relating to the practice of medicine.

Complaint Three

1. Complaint Three is as follows: [Dr Oladiran] is guilty of professional misconduct under s 139E of the National Law in that the practitioner has: i. engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; or ii. 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. Background to Complaint Three The background to Complaints One and Two are repeated. Particulars of Complaint Three 1. Complaints One and Two and the particulars thereof are repeated and relied upon cumulatively. 2. Complaint Two, Particular One is repeated and relied upon individually.
2. The factual basis for Complaint Three has been admitted.
3. 'Professional misconduct' is defined in s 139E of the National Law: 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.
4. In the written submissions on behalf of the Respondent, the following submission was made, at paragraph 6: The Respondent has admitted that he is guilty of professional misconduct as defined under s 139E of the National Law. The Respondent concedes that by engaging in a personal and sexual relationship with Patient A and then lying about it to the Commission, his conduct amounts to professional misconduct.
5. There is, generally, a power imbalance between a doctor and a patient which underpins the need for the establishment and maintenance of the boundaries identified in the Sexual Boundaries Guidelines. In the present case, that power imbalance was increased by Patient A's history of anxiety and depression, which was recorded in her medical notes. Dr Oladiran was aware of Patient A's anxiety and depression, at the latest, on 4 February 2015. He prescribed an anti-depressant for her. Dr Oladiran conceded in his statement that Patient A was vulnerable.
6. Dr Oladiran was consulted by Patient A's daughter sometime between 13 February 2015 and May 2015 with respect to the implantation of an Implanon contraceptive device. Dr Oladiran's evidence was that he did not know that his patient was Patient A's daughter at that consultation.
7. The personal relationship between Dr Oladiran and Patient A ended in about August 2015.
8. Subsequent to the ending of the personal relationship between Patient A and Dr Oladiran, Patient A's daughter consulted Dr Oladiran once more, to have the Implanon contraceptive device removed and to obtain a prescription for a contraceptive pill. On this occasion, she was accompanied by Patient A, and Dr Oladiran therefore knew of their relationship.
9. Dr Oladiran was consulted by Patient A's son after his relationship with Patient A ended.
10. Dr Oladiran had two further consultations with Patient A on 28 January 2017 and 28 March 2017.
11. Part of the consultation on 28 January 2017 related to Patient A's mental health, and Dr Oladiran prepared a GP Mental Health Care Plan in relation to Patient A.
12. The consultation on 28 March 2017 occurred five days after Patient A was discharged from an inpatient stay in a mental health clinic, following the break-up of a relationship. Dr Oladiran prescribed Valium and Mirtazapine, an anti-depressant.
13. In April 2017 a Registered Nurse employed at the mental health clinic reported to the Australian Health Practitioners Regulatory Authority (AHPRA) that Patient A had told her that she had had a sexual relationship with the practitioner while he was her general practitioner.
14. The Registered Nurse forewarned Patient A that she was going to report Patient A's relationship with the practitioner, and that she was also going to inform Patient A's usual general practitioner at the Medical Centre. Patient A arranged a meeting with her usual general practitioner to discuss the matter. In her statement, Patient A said: I told [my usual GP] that I had not planned to discuss with anyone what had happened with [Dr Oladiran]. I asked him to tell [Dr Oladiran] on my behalf that I did not intend on reporting the matter and that it had gone through the Mental Health Clinic. [My usual GP] made me feel very comfortable and told me it was not my fault. I told [my usual GP] that I was not a child and that I knew exactly what I had been doing.
15. The letter of 15 June 2017 to the HCCC from Dr Oladiran's solicitors, in response to the HCCC's letter of 22 May 2017, is a two and a half page latter which contains detailed denials of many of the allegations of Patient A. Dr Oladiran now concedes that many of those denials are lies. In the letter of 15 June 2017 Dr Oladiran repeatedly and untruthfully denies that he had a sexual relationship with Patient A. He omits any mention of his consultations with her children. The letter says: Dr Oladiran has reviewed and read thoroughly the 'Good Medical Practice - A Code of Conduct for Doctors Working in Australia' (Medical Board of Australia 2010) and the document 'Sexual Boundaries: Guidelines for Doctors' (Medical Board of Australia 28 October 2011) so that he may better understand the necessary boundaries between medical practitioners and patients, even though the personal contact may have occurred after the therapeutic relationship has ceased. Dr Oladiran has also undertaken education on maintaining professional boundaries by completing a course with Carramar Education on 13 June 2017. We enclose a copy of the Enhancing Professional Practice report from Carramar Education dated 14 June 2017. Dr Oladiran has also enrolled in the medical ethics course to be delivered over 12 weeks online by Monash University from July 2017.
16. Having read the Code of Conduct and the Sexual Boundaries Guidelines, Dr Oladiran must have been well aware of his ethical obligations before the letter of 15 June 2017 was sent.
17. A further letter dated 21 February 2018 was sent to the HCCC by Mr Saxton, acting for Dr Oladiran. That letter read, in part: Dr Oladiran has contacted me and would like to correct his earlier submission. After completing the semester long course from Monash University on Medical Ethics, he has realised that he has failed to disclose relevant facts regarding his relationship with [Patient A]. I am instructed that on at least two occasions, Dr Oladiran and [Patient A] had encounters that Dr Oladiran considers to be sexual in nature. Dr Oladiran was very embarrassed initially but now, having completed his Ethics course (copy of certificate attached), wants to be completely open and honest. He acknowledges that his initial response to the Commission was not accurate. While the conduct set out above was mutual, Dr Oladiran acknowledges his fault because [Patient A] had consulted him as her general practitioner on three occasions beforehand. Dr Oladiran confirms that he has not been in any form of contact with [Patient A] since then, other than as outlined in the initial response and as set out above.
18. Again, this letter is less than frank. The practitioner subsequently admitted that he had sexual intercourse with Patient A on three occasions. The phrasing in the letter leaves open the possibility that there were two occasions only. No mention is made in the letter of the consultation with Patient A's daughter, at which Patient A was present.
19. Eight months elapsed between the false denials of the allegations being made in writing to the HCCC by Dr Oladiran's solicitor and the partial correction in the letter of 21 February 2018. The letter was dated more than three months after the end of the Monash course. Dr Oladiran's explanation for the delay is that he was waiting to receive the certificate from the Monash course before sending the letter. This is obviously not an adequate explanation. There is no real connection between Dr Oladiran's receipt of that certificate and his obligation to be truthful to the HCCC.
20. We set these matters out as background relevant to the allegation in Complaint Three that Dr Oladiran's conduct, particularised in Complaint One and Complaint Two, amounts to professional misconduct.
21. We determine that, in context, the particulars of Complaint One and Complaint Two cumulatively constitute professional misconduct under the National Law.
22. We further determine that, in context, particular one of Complaint Two alone constitutes professional misconduct. Lying to the regulatory authority has the potential to undermine the system for the regulation of medical practitioners, which is a statutory system conducted principally for the protection of the health and safety of the public. The lies told also necessarily implied that Patient A's account was not truthful, which is reprehensible.

Protective Orders

1. The HCCC and the practitioner put forward agreed protective orders. They comprise a reprimand and a series of practice conditions which relate to a proposed mentoring relationship for the practitioner for a minimum of 12 months.
2. Having regard to the definition of professional misconduct in s 139E of the National Law, it is clear that our determination that the practitioner's conduct amounts to professional misconduct means that we have formed the view that the nature of his conduct is sufficiently serious to justify cancellation or suspension of his registration. That does not mean that the appropriate protective orders, in all of the circumstances of this matter, should necessarily include the cancellation or suspension of Dr Oladiran's registration.
3. The issue was considered by the Court of Appeal of NSW in Health Care Complaints Commission v Karalasingham [2007] NSWCA 267. The Act under consideration was a predecessor of the National Law, but the principles established are applicable. In Karalasingham, the Tribunal was criticised by the appellant for determining that the conduct in question amounted to professional misconduct, and then omitting to consider expressly the option of deregistering the practitioner. Basten JA, with whom Giles JA and Bergin J agreed, said at [67]: 67 The first aspect of this challenge is based on an assumption that the Tribunal should start with the possibility of deregistration, once a finding is made of professional misconduct, because, by definition, such conduct is of its nature sufficiently serious to justify suspension or removal of the practitioner's name from the register: the Act, s 37. However, it is clear that the definition is focused on the nature of the conduct, which must have the capacity to justify such an order, whether or not such an order should be made in particular circumstances. That such an order need not be made is clear from the terms of ss 60-64, which provide that the full range of disciplinary powers is available on a finding of professional misconduct. …
4. Similarly, under the National Law, the full range of disciplinary powers is available to the Tribunal under Subdivision 6 of Division 3 of Part 8 when the subject matter of a complaint is proved or admitted in writing to the Tribunal.
5. Circumstances which are relevant to the selection of protective orders include any mitigating factors, the circumstances of the offending conduct and the offender, and the overriding importance of the protection of the health and safety of the public. It is also relevant to consider the consistency of approach with other disciplinary proceedings, bearing in mind that no two cases are precisely alike.
6. In considering the appropriate protective orders, we have regard to all of the circumstances of the offence. Patient A's attitude to the events the subject of the complaint is relevant, and is set out above at [41]. This case is different, for example, from Vigours v Medical Council of NSW [2019] NSWCATOD 75, where there were three complainant patients and more numerous and serious boundary violations. It is more akin, on its facts, to Health Care Complaints Commission v Dr Small [2012] NSWMT 18, where the protective orders made constituted a series of conditions imposed upon the respondent's registration.
7. We have considered Dr Oladiran's evidence. In his statement, he apologised to Patient A, and also apologised to the medical profession, for bringing it into disrepute. We accept that he is remorseful. However, in giving evidence, Dr Oladiran did tend to minimise his role in initiating and continuing the relationship in a way which did not indicate that he had gained the appropriate degree of insight. He was somewhat evasive in giving evidence, tending to deflect awkward questions rather than dealing with them frankly and directly. This may partly have been the result of the severe embarrassment he was clearly experiencing.
8. Dr Oladiran obtained his medical degree from the University of Ibadan, Nigeria, in 2006. He worked as an intern in Trinidad and Tobago in 2007 - 2008. He continued working in Trinidad and Tobago as a medical practitioner until January 2014, except for two periods of six months each during which he was undertaking the Masters of Public Health at Western Kentucky University.
9. Dr Oladiran said, in his statement, that neither his medical training in Nigeria nor his internship and experience in Trinidad and Tobago involved any instruction in medical ethics. He said that prior to this matter arising, he had never given any thought at all to issues concerning professional boundaries or personal relationships with patients.
10. Dr Oladiran said that he did not, at the time of his relationship with Patient A, consider her to be his patient, which indicates that his understanding of the professional relationship between doctor and patient at that time was fairly unsophisticated.
11. Dr Oladiran immigrated to Australia in January of 2014. His wife did not immigrate with him at that stage, and it was his evidence that they had separated by the time he met Patient A, and he considered himself to be single.
12. Dr Oladiran said that, at the time that he received the complaint in relation to Patient A, he panicked. His family in Nigeria depends upon him financially. He said that Boko Haram had kidnapped a close relative, and the family was looking to him to pay the ransom. He said that his lies to the HCCC came from his fear of the consequences of the complaint. He said that he undertook the Carramar Institute ethics course and the Monash University ethics course to educate himself about professional boundaries. As we have noted, the Carramar Institute course pre-dated the letter in which he denied the allegations with respect to Patient A.
13. As we have set out above, we remain concerned about the fact that Dr Oladiran said, in the letter which falsely denied the allegations with respect to Patient A, that he had read the Code of Conduct and the Sexual Boundaries Guidelines. We are also concerned about the time which elapsed between Dr Oladiran's completion of the Monash University ethics courses and the correction of the lies told in the letter of 15 June 2017.
14. Dr Oladiran's circumstances have changed since his relationship with Patient A and his initial response to the complaint. His wife is now living with him in Australia, and they have one child with a second child expected imminently. Dr Oladiran now has an established family and social life, including a church group.
15. We take into account all of the work and character references provided by Dr Oladiran.
16. In our assessment, there is little to no risk that Dr Oladiran will breach professional boundaries in a similar way again. However, we have some concerns about the depth of his understanding of Australian ethical standards and how to apply them. In speaking of some of the informal 'mentors' who have guided him in the past, none of whom were related to him, Dr Oladiran referred to them as 'his brothers'. We understand that he meant to convey that there was a high level of trust and comfort between him and these mentors. Doubtless they have been very generous and helpful to Dr Oladiran as he settled in to medical practice in Australia. We believe, however, that, at this point in time, Dr Oladiran's ethical needs may be best served by a mentor who is a senior doctor, who does not have a background which is similar to his, and who can give him a point of view which is very different from his own.
17. In view, particularly, of the change in Dr Oladiran's personal circumstances, and the powerful impact that participating in this disciplinary process has had on him, we consider that it is appropriate to reprimand him and impose conditions on his registration. We do not consider, in all of the circumstances, that the cancellation or suspension of Dr Oladiran's registration is warranted. The conditions to be imposed will differ from those put forward by the HCCC in that the task of finding a mentor for Dr Oladiran will be given to the Medical Board of Australia rather than to Dr Oladiran, and the frequency of his contact with that mentor will be fixed at fortnightly for the first two months.
18. It was agreed between the parties that Dr Oladiran would pay the legal costs of the HCCC. This is in conformity with the usual rule that costs follow the event.

Orders

1. We make the following orders: 1. Dr Oladiran is reprimanded under s 149A(1)(a) of the Health Practitioner Regulation National Law. 2. The following conditions are imposed upon Dr Oladiran's registration under s 149A(1)(b) of the Health Practitioner Regulation National Law, 1. Dr Oladiran must engage in a mentoring relationship with a professional mentor nominated by the Medical Board of Australia (the Board). 2. The mentoring relationship must continue for a minimum period of 12 months from the date of the first meeting between Dr Oladiran and the mentor, with the Board to determine, at the expiration of that 12 month period, whether a further period is required. 3. Dr Oladiran is to meet with the mentor, either in person or via audio visual means, fortnightly, for the first two months of the mentoring relationship, and, thereafter, at a frequency nominated by the Board from time to time. Professional ethics for general practitioners must be a topic of conversation at each meeting. 1. The Board must provide the mentor with a copy of this decision. 2. Dr Oladiran is to pay the costs of the Health Care Complaints Commission, to be agreed or assessed. 3. Under s 64(1) of the Civil and Administrative Tribunal Act 2013 (NSW), disclosure to any person or entity of the name of the patient set out in the schedule to the complaint, and the children of that patient, is prohibited.

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: 27 May 2020