Dr Schmaman is a 62-year-old medical practitioner who graduated from the University of Cape Town in 1979 and started practising medicine in Australia in 2003. From 2004 until May 2017, when he was suspended from practice, he worked as a general practitioner on the south coast of New South Wales. Following Dr Schmaman's conviction for indecently assaulting a female patient, the Health Care Complaints Commission referred a complaint against him to the Tribunal: Health Practitioner Regulation National Law (NSW), (National Law), s 145C(1)(a).
Dr Schmaman's patient, Patient A, was a vulnerable person. She had physical and mental health issues and was addicted to prescription medications. Dr Schmaman saw her regularly from 3 September 2015 until 11 February 2016 and admits he was sexually attracted to her. He asked her to wear high-heeled shoes and boots to consultations and started physically touching her, and then hugging her at the end of appointments. He gave her his phone number and they texted one another frequently. Dr Schmaman prescribed her excessive amounts of various medications and gave her money.
On 28 January 2016, while giving Patient A an injection in the buttock, Dr Schmaman pushed away Patient A's underclothes exposing her genital area. He then touched Patient A's genital area with one of his hands. Dr Schmaman pleaded guilty to "Aggravated indecent assault - victim under of authority of offender": Crimes Act 1900 (NSW), s 61M(1). He was sentenced to imprisonment for 11 months but the sentence was suspended on the condition that he enter into a good behaviour bond.
The complaints against Dr Schmaman were made on the grounds of his conviction for a criminal offence, unsatisfactory professional conduct or professional misconduct and that he is "otherwise not a suitable person to hold registration": National Law, s 144(a), (b) and (e). All the particulars of the Complaints occurred between 3 September 2015 and 11 February 2016.
If the Tribunal "finds the subject-matter of a complaint against the practitioner . . . to have been proved" or "the practitioner . . . admits to it in writing to the Tribunal", the Tribunal may exercise certain disciplinary powers: National Law, s 149. With minor exceptions, Dr Schmaman admits Complaints 1 - 5. Those complaints relate to the conviction for indecent assault, Dr Schmaman's personal interactions with Patient A and his prescribing and record keeping activities. Dr Schmaman's admissions make it unnecessary for us to determine whether the subject matter of those parts of the complaints are proved.
Dr Schmaman denies Complaint 6 which asserts that because of these activities and the underlying conduct surrounding the commission of the offence, Dr Schmaman is "otherwise not a suitable person to hold registration": National Law, s 144(e). He says that he is suitable to hold registration as a medical practitioner, with conditions. We have decided that the subject matter of this complaint is not proved.
In the second part of these reasons, under the heading "Protective Orders", we set out our reasons for cancelling Dr Schmaman's registration and preventing him from re-applying for registration for two years.
[2]
Complaint 1 - conviction for an offence - aggravated indecent assault
Complaint 1 is that Dr Schmaman was convicted of a criminal offence: National Law, s 144(a). On 13 June 2017, at Wollongong District Court, Dr Schmaman was convicted of "Aggravated indecent assault - victim under authority of offender" occurring on 28 January 2016 contrary to s 61M(1) of the Crimes Act 1900. The reference to the fact that the victim was "under authority of offender" is a reference to the doctor/patient relationship. He pleaded guilty to that offence. Dr Schmaman has admitted this complaint in writing.
[3]
Complaint 2 - unsatisfactory professional conduct - personal interactions
[4]
Overview
Complaint 2 is a complaint of unsatisfactory professional conduct: National Law, s 144(b). Unsatisfactory professional conduct is defined in s 139B(1) to include:
(a) Conduct significantly below reasonable standard
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.
. . .
(l) Other improper or unethical conduct
Any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession.
With the exception of Particular 6, discussed below, Dr Schmaman has admitted unsatisfactory professional conduct in both respects.
The particulars in Complaint 2 describe breaches of professional boundaries. The need observe "professional boundaries" is referred to at 8.2.2 of "Good Medical Practice: A code of conduct for doctors in Australia" dated March 2014:
Never use your professional position to establish or pursue a sexual, exploitative or other inappropriate relationship with anybody under your care.
Dr Schmaman claims he was unaware of, and had not read this publication until a few days before the Tribunal hearing. The Medical Board of Australian has developed specific guidelines on sexual boundaries under the National Law. The publication, "Sexual Boundaries: Guidelines for doctors" dated 28 October 2011, defines sexual misconduct to include "engaging in sexual activity with a current patient regardless of whether the patient consented to the activity or not."
Rather than dealing with each particular chronologically we have addressed the most serious particulars first.
[5]
Conduct giving rise to the conviction - Particular 10
On 28 January 2016, Dr Schmaman engaged in improper sexual touching during a professional consultation with Patient A. While administering an injection of Maxalon in Patient A's buttocks, Dr Schmaman admits that he:
a. pushed away Patient A's undergarments exposing her genital area;
b. touched Patient A's genital area with one of his hands.
This conduct gave rise to the criminal conviction.
[6]
Hugging, kissing and photographing - Particulars 1, 2 and 7
Dr Schmaman hugged Patient A and attempted to kiss her on a number of occasions during consultations. He also took a photograph of her without her permission while she was sitting in the waiting room.
[7]
Text messages - Particular 4
Patient A asked Dr Schmaman for his mobile phone number at the first consultation, but he did not give it to her until the second or third consultation. Particular 4 states that he subsequently sent 315 text messages and two picture messages to Patient A, without any "clinical therapeutic" reason. Dr Schmaman admits this particular except that he denies that there are 315 messages. He says there are 303 messages - 170 from Patient A to him and 133 from him to Patient A. The Commission did not dispute Dr Schmaman's figures at the hearing and we find this Particular is proved but only in relation to 303 messages. We also find that those messages were sent without any "clinical therapeutic" reason.
Dr Schmaman acknowledged, after re-reading these messages, that there is a very clear pattern. Patient A would tell him about the stressors in her life and he would then arrange to give her money or provide further prescriptions.
[8]
Requests to wear particular shoes or boots to consultations - Particular 5
At the first consultation, Dr Schmaman complimented Patient A on the high-heeled boots she was wearing. She told him she had nicer ones at home and offered to wear them to the next appointment. Dr Schmaman admits that he encouraged her to wear similar shoes to the next appointment.
On 27 October 2015, when texting Patient A, Dr Schmaman asked her to wear her "highest heels." On 12 December 2015, in another text message, he asked her to bring a list "of all your heels".
[9]
Further prescribing conditional on wearing particular shoes or boots - Particular 6
Particular 6 of Complaint 2 is the only particular, which Dr Schmaman did not admit in writing. Particular 6 states that:
Between 3 September 2015 and 11 February 2016, the practitioner failed to observe proper professional boundaries in that he told Patient A words to the effect, "If you want me to continue writing scripts for you as often as I am I would appreciate you always wearing 6 inch heels and boots and always dressing nice for me."
That quote comes from Patient A's statement to the Police on 19 June 2017. She wrote that Dr Schmaman said "something to the effect" of those words. The context was that Patient A remembers going to Dr Schmaman's office and asking if she could get another box of OxyNorm. OxyNorm is an opioid used for the treatment of severe pain.
Dr Schmaman admits asking Patient A on various occasions, to wear high-heeled shoes and boots to appointments. He also accepts that his conduct encouraged and condoned Patient A's practice of wearing certain footwear to appointments to continue to receive prescriptions. However, he denies expressly saying that he would not continue writing scripts unless she wore those shoes.
Dr Schmaman did not require Patient A to attend and give evidence about the alleged conversation in Particular 6 because he did not want to subject her to the Tribunal's processes. Dr Schmaman concedes that regardless of whether we accept his denial, it makes no difference to the outcome. Nevertheless, we must decide whether we find the subject matter of the complaint proved: National Law, s 149(a). The onus is on the Commission to prove the Particulars that Dr Schmaman denies. The Tribunal is not bound to observe the rules of law governing the admission of evidence: National Law, Sch 5, cl 2.
Whether intentionally or otherwise, Dr Schmaman conveyed the impression that further prescribing or access to samples, was conditional on Patient A wearing high heels. We note that the conversation allegedly occurred in the context of asking for another box of OxyNorm. Given Dr Schmaman's denial that he said those words on that occasion, and the fact that we cannot question Patient A, we are not satisfied that he actually said the words Patient A has attributed to him. It follows that we are not satisfied that the subject matter of Particular 6 of Complaint 2 is proved.
[10]
Payments of cash and transferring money - Particulars 8 and 9
On three separate occasions, Dr Schmaman gave Patient A an envelope containing $500 cash, $50 cash and another $50 in cash which he slipped into the front of her shirt under her bra strap. He also transferred money totalling $1,350 into her bank account on four separate occasions.
[11]
Arranging for special access for Patient A- Particular 3
Particular 3 is that Dr Schmaman failed to observe professional boundaries in that he arranged for special access for Patient A to attend the Narooma Practice by accessing a back door, therefore bypassing the reception area. Dr Schmaman admitted this particular but said that it occurred at the satellite practice at Bermagui. We are satisfied that this Particular relates to the Bermagui practice.
[12]
Complaint 3 - unsatisfactory professional conduct - inappropriate prescribing
[13]
Overview
Complaint 3 is a complaint of unsatisfactory professional conduct in relation to prescribing practices. Those practices are said to constitute unsatisfactory professional conduct in two respects. The judgment or care exercised is "significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience": National Law, s 139B(1)(a). The Commission also characterised the conduct as being "any other improper or unethical conduct": National Law, s 139B(l). The dates on which Dr Schmaman prescribed various medications to Patient A are set out in Annexure B to the Complaint.
Dr Schmaman was aware that Patient A had a history of using high-risk medications. On 3 September 2015, before seeing Patient A, Dr Schmaman faxed the Department of Human Services (Prescription Shopping Information Service). On the same day, he received a report confirming that from 1 July 2015 to 3 September 2013, she had been prescribed Diazepam 5mg, Oxycodone 20mg and 30mg, Oxazepam 30mg, Sertraline, Temazepam 10mg and Odansetron tablets and wafers. Dr Schmaman recorded the reason for the contact as including benzodiazepine addiction. Dr Schmaman prescribed Oxepam 30mg 1.5 nocte, Valium 5mg 3 bd, Oxycontin CR 30mg 1 bd to be dispensed fortnightly, OxyNorm 20mg 1 bd to be dispensed fortnightly and Amoxycillin.
On 14 September 2015 Mr Krone, a mental health nurse, contacted Dr Schmaman. He told him that Patient A was a client of the Community Mental Health Service and that she had seen an Addiction Medicine Specialist recently. The correspondence enclosed a report of Dr Whitton, Clinical Direction of the Drug and Alcohol Service. That report noted that, from an addiction medicine point of view, Patient A seems to be relatively stable on Oxycontin 30mg bd, OxyNorm 20mg bd and Diazepam 30mg per day. Dr Schmaman acknowledged that over time he changed these medications and the dosage.
On 27 January 2016, the Legal and Regulatory Services Branch of NSW Health wrote to Dr Schmaman. The letter made three points. First, it had come to their attention that he had been prescribing Schedule 8 drugs of addiction, namely Oxycodone and Alprazolam, without authority as required under s 28 of the Poisons and Therapeutic Goods Act 1966 (NSW). Second, he had been prescribing multiple other benzodiazepines and Zolpidem. Third, he was reminded that, in accordance with s 34 of the Poisons and Therapeutic Goods Regulation Act 1966, it is a criminal offence for an authorised practitioner to issue a prescription for a restricted substance in a quantity, or for a purpose, that does not accord with the recognised therapeutic standard of what is appropriate in the circumstances.
[14]
Prescribing certain Schedule 4 medications - Particular 1
Dr Schmaman prescribed the Schedule 4 medications Lorazaepam, Ondansetron, Pregabalin, Zolpidem and Agomelatine. That prescribing was contrary to clause 34 of the Poisons and Therapeutic Goods Regulation 2008 (NSW):
34 Quantity and purpose of prescriptions to be appropriate
An authorised practitioner must not issue a prescription for a restricted substance in a quantity, or for a purpose, that does not accord with the recognised therapeutic standard of what is appropriate in the circumstances.
Maximum penalty: 20 penalty units or imprisonment for 6 months, or both.
[15]
Prescribing other Schedule 4 medications - Particular 2
Dr Schmaman prescribed to Patient A the Schedule 4 medication Diazepam and Oxazepam. That conduct was contrary to clause 34 of the Poisons and Therapeutic Goods Regulation. This inappropriate prescribing took place in circumstances where Dr Schmaman was aware that Patient A had a history of abusing prescription medications. Dr Schmaman was also aware that Patient A was concurrently taking Schedule 8 drugs of addiction.
[16]
Prescribing Schedule 8 medications - Particular 3
Dr Schmaman prescribed Patient A with the Schedule 8 medications Alprazolam and Buprenorphine. This prescribing was in breach of clause 79 of the Poisons and Therapeutic Goods Regulation.
Quantity and purpose of prescriptions to be appropriate
An authorised practitioner must not issue a prescription for a drug of addiction in a quantity, or for a purpose, that does not accord with the recognised therapeutic standard of what is appropriate in the circumstances.
Maximum penalty: 20 penalty units or imprisonment for 6 months, or both.
This inappropriate prescribing took place in circumstances where Dr Schmaman was aware that Patient A had a history of abusing prescription medications. Dr Schmaman failed to seek advice from other professionals such as a psychiatrist or a drug and alcohol addiction expert before prescribing the medication.
[17]
Prescribing other Schedule 8 medications - Particular 4
Dr Schmaman prescribed Patient A with the Schedule 8 medications Oxycontin and OxyNorm. That prescribing was in breach of clause 79 of the Poisons and Therapeutic Goods Regulation.
Just over three weeks after the first consultation, he had increased the dose of OxyNorm from twice a day to three times a day and had prescribed enough OxyNorm to last 6 or 7 days. The next day, 29 September 2015, Patient A rang asking for more OxyNorm. Dr Schmaman issued a prescription with a direction not to dispense until 5 October 2015. The following day, 30 September 2015, Patient A requested a further prescription including OxyNorm and Dr Schmaman prescribed another box of 20. On 1 October 2015, Dr Schmaman prescribed OxyNorm 10mg for severe pain.
[18]
Prescribing further Schedule 8 medications - Particular 5
Dr Schmaman prescribed the Schedule 8 drug Oxycodone to Patient A. That prescribing was in breach of s 28(3) of the Poisons and Therapeutic Goods Act 1996 because Dr Schmaman knew that Patient A was drug dependent:
A medical practitioner or nurse practitioner must not, without the proper authority, prescribe for or supply to a person who, in the opinion of the medical practitioner or nurse practitioner, is a drug dependent person a type C drug of addiction.
On 7 September 2015 Dr Schmaman contacted NSW Health and confirmed that Patient A had previously been on a methadone program, but that she was not currently on such a program. At the hearing, Dr Schmaman said that he prescribed the medications before making these contacts because he was "overwhelmed by the complexity" of Patient A's condition. He knew she was drug dependent and that he needed authority from the Pharmaceutical Regulatory Authority to continue treatment in those circumstances.
Dr Schmaman eventually obtained the necessary authority in January 2016. When asked why he did not obtain it earlier he agreed that he was worried that he would not be given the authority and he wanted to continue to prescribe Patient A with Schedule 8 medications.
[19]
Prescribing benzodiazepines in combination with opioids - Particular 6
Dr Schmaman prescribed to Patient A several benzodiazepines and several opioids at the same time. The combination of multiple benzodiazepines with multiple opioids increases the risk of neurological side effects and physical dependence. He had not received advice from any specialist such as a psychiatrist or a drug and alcohol specialist about Patient A's management.
[20]
Faxing prescriptions to pharmacies - Particular 7
Dr Schmaman failed to exercise appropriate judgment and care when he faxed prescriptions to several pharmacies. That meant that the quantity of medications was not being controlled or managed to prevent Patient A from collecting excessive amounts of medication each week.
On 28 September 2015, Mr Hoar, a pharmacist at Narooma, telephoned Dr Schmaman to advise that he is only giving one week's supply of Patient A's medication. Mr Hoar confirmed that conversation in an email listing the medication that he had supplied to Patient A and expressing his concern about the use of "this quantity of drugs" and saying that "hopefully we can put a lid on the (what seems to be) excessive use." Dr Schmaman says that he agreed to provide Patient A with smaller quantities and started putting dates on prescriptions, so they could not all be filled at the same time.
[21]
Complaint 4 -unsatisfactory professional conduct - record keeping
[22]
Overview
Complaint 4 is a complaint of unsatisfactory professional conduct in that Dr Schmaman has contravened a provision of the National Law, whether or not he has been prosecuted for or convicted of an offence in respect of the contravention: National Law, s 139B(1)(b).
(1) Unsatisfactory professional conduct of a registered health practitioner includes each of the following -
. . .
(b) Contravention of this Law or regulations
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.
Dr Schmaman failed to make adequate records for Patient A in accordance with Schedule 2, clause 1 of the Health Practitioner Regulation (New South Wales) Regulation 2010 (NSW) (repealed):
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.
Dr Schmaman:
1. prescribed several new medications for Patient A for which there was no clinical record of a history taken or an examination;
2. prescribed excessive amounts of multiple medications to Patient A without adequate explanation in the clinical record;
3. failed to record a comprehensive history of Patient A's current symptoms of chronic pain; and
4. failed to provide an explanation for Patient A's need for benzodiazepines.
[23]
Complaint 5 - professional misconduct - serious nature and more than one instance
Complaint 5 is that:
1. Each of the particulars of Complaints 2 and 3 in itself justifies a finding of professional misconduct.
2. The particulars of Complaints 2, 3 and 4 are repeated and relied upon cumulatively to justify a finding of professional misconduct.
Dr Schmaman admitted this complaint in writing. Professional misconduct is defined in s 139E:
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.
Particular 10 of Complaint 2 describes the conduct giving rise to Dr Schmaman being convicted of indecently assaulting Patient A.
[24]
Complaint 6 - otherwise not a suitable person to hold registration
A complaint may be made against a registered health practitioner on any of the five grounds listed in s 144 of the National Law:
(a) A complaint the practitioner has, either in this jurisdiction or elsewhere, been convicted of or made the subject of a criminal finding for an offence.
(b) A complaint the practitioner has been guilty of unsatisfactory professional conduct or professional misconduct.
(c) A complaint the practitioner is not competent to practise the practitioner's profession.
(d) A complaint the practitioner has an impairment.
(e) A complaint the practitioner is otherwise not a suitable person to hold registration in the practitioner's profession.
Complaint 6 is that Dr Schmaman is "otherwise not a suitable person to hold registration in the practitioner's profession": National Law, s 144(e). The Tribunal has interpreted the word "otherwise" to limit the operation of that provision to grounds for complaint not set out under ss 144(a) to (d): Health Care Complaints Commission v Simpson [2018] NSWCATOD 49 at [60]; Health Care Complaints Commission v Haasbroek [2018] NSWCATOD 177 at [59]; Health Care Complaints Commission v Achurch [2019] NSWCATOD 20 at [57]. We agree with that interpretation.
For example, if the Commission relies on the ground that a practitioner has been convicted of an offence under s 144(a), it may also rely on the circumstances giving rise to the offence as the basis for a separate complaint under s 144(e): Health Care Complaints Commission v Simpson [2018] NSWCATOD 49 at [61] - [62]; Health Care Complaints Commission v Haasbroek [2018] NSWCATOD 177 at [59] - [61]. But where circumstances or conduct is relied on as the basis for complaints under s 144(a) - (d), those matters cannot lawfully be the subject of a complaint that a practitioner is otherwise not a suitable person to hold registration under s 144(e): Health Care Complaints Commission v Elshaimy [2019] NSWCATOD 17 at [31].
The Commission agreed that it could not rely on complaints made under s 144(a) - (d) to prove that a person is not a suitable person to hold registration under s 144(e). But the Commission submitted at the hearing that the Tribunal could and should take into account the underlying conduct and Dr Schmaman's "personality defects" to conclude that, at the moment, Dr Schmaman is not a suitable person to hold registration. The deficiencies in his character make him unsuitable.
Although Dr Schmaman admits the conduct that is the basis of Complaint 6, he does not admit the complaint itself. He denies that he is "otherwise not a suitable person to hold registration". The particulars are as follows:
1. Complaints 1, 2, 3 and 4 and the particulars thereof are repeated and relied on cumulatively.
2. Additionally, the following underlying conduct surrounding the commission of the offence particularised in Complaint 1 is relied on.
3. On 28 January 2016, Dr Schmaman assaulted Patient A at the Narooma Practice whilst administering an injection of Maxalon into Patient A's buttocks when he pushed an internal body suit worn by Patient A to the side, exposing patient A's genitals, and then moved one hand through the opening in the crotch of the garment and placed it under Patient A's body suit and touched Patient A on the outside of her genitals.
4. The conduct set out in 3 gave rise to the conviction particularised in Complaint 1 and was included in the Agreed Facts on Sentence that was attached to the Certificate pursuant to s 35A Crimes (Sentencing Procedure) Act 1999 and was placed before the District Court of NSW on or about the time in which the practitioner was sentenced by that Court.
The first particular in Complaint 6 is that "Complaints 1, 2, 3 and 4 and the particulars thereof are repeated and relied upon cumulatively." In our view, these particulars cannot be the basis of a Complaint under s 144(e). The Commission has conceded that it cannot rely on complaints made under s 144(a) - (d) to prove that a person is not a suitable person to hold registration under s 144(e).
The second particular in Complaint 6 is that the underlying conduct surrounding the commission of the offence particularised in Complaint 1 is relied on. That conduct is also relied on as a particular in a Complaint of unsatisfactory professional conduct (Complaint 2, Particular 10) and as a particular in a Complaint of professional misconduct (Complaint 5, Particulars 1 and 2). The same conduct cannot be the basis for a Complaint under s 144(e) because under s 144(e) the complaint must be that the practitioner is "otherwise" not a suitable person to hold registration.
The Commission cannot rely on matters that were not pleaded such as character defects or any other characterisation of relevant circumstances to justify a finding under s 144(e). We are not satisfied that the subject matter of Complaint 6 has been proved.
[25]
Power to make protective orders
The Tribunal's disciplinary powers are set out in Part 8, Division 3, Subdivision 6 of the National Law. We may suspend registration for a specific period or cancel registration if satisfied of certain matters: National Law, s 149C. Those matters include that "the practitioner is guilty of professional misconduct": National Law, s 149C(1)(b). As Dr Schmaman has admitted Complaint 5, that he is guilty of professional misconduct, the Tribunal has power to suspend or cancel his registration. We are not obliged to do so.
[26]
Parties' submissions on nature of protective orders
The Commission submitted that Dr Schmaman's registration should be cancelled and that he should be prohibited from re-applying for 3 to 5 years: National Law, s 149C(1)(b) and s 149C(7). The Commission also applied for a "prohibition order". If the Tribunal suspends or cancels a practitioner's registration, "and is satisfied that the person poses a substantial risk to the health of members of the public" it may make a prohibition order: National Law, s 149C(5). The order sought by the Commission was to prohibit Dr Schmaman from providing any health services "until such time as he brings an application for review and is re-registered as a medical practitioner." Such an order would prevent Dr Schmaman from providing any health service as defined in s 4 of the Health Care Complaints Act 1993 (NSW), during the period of cancellation.
Dr Schmaman wishes to work as a general practitioner and believes he can make a valuable contribution to the community given his long experience, care and compassion. He submitted that his registration should be suspended for 6 months and that after that time, his registration should be subject to conditions. Two of the conditions to which he agreed, were that he continue to engage in psychotherapy with Prof Eisenbruch and that he not see any female patient aged 12 to 70 unless a chaperone is present.
[27]
Legal principles
One object of the National Law is "to provide for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered": National Law, s 3. In exercising a function under the National Law, "the protection of the health and safety of the public must be the paramount consideration.": National Law, s 3A. Section 4 requires the Tribunal "to exercise its functions having regard to the objectives and guiding principles" set out in section 3.
If we suspend Dr Schmaman's registration, it will be renewed automatically on completion of the suspension period. If we cancel Dr Schmaman's registration, Dr Schmaman will have to justify re-registration in a Tribunal hearing. Basten JA noted in Chen v Health Care Complaints Commission [2017] NSWCA 186 at [21], that "[U]ncertainty as to the future may lead the Tribunal to cancel a registration rather than suspend it."
In Health Care Complaints Commission v Do [2014] NSWCA 307 at [35], the Court of Appeal emphasised that protecting the health and safety of the public is not confined to protecting future patients from the risk of harm:
It includes protecting the public from the similar misconduct or incompetence of other practitioners and upholding public confidence in the standards of the profession. That objective is achieved by setting and maintaining those standards and, where appropriate, by cancelling the registration of practitioners who are not competent or otherwise not fit to practise, including those who have been guilty of serious misconduct. Denouncing such misconduct operates both as a deterrent to the individual concerned, as well as to the general body of practitioners. It also maintains public confidence by signalling that those whose conduct does not meet the required standards will not be permitted to practise.
[28]
Relevant considerations
Dr Schmaman made several submissions to explain his conduct and to re-assure the Tribunal that he should be able to practise with conditions after a further 6 month suspension.
The most significant of these submissions was his insight into the offending behaviour and his remorse. Dr Schmaman described his conduct as appalling, shameful and inexcusable. He acknowledged that Patient A was a vulnerable person and that his conduct made her dependent on him for opioids and benzodiazepines. Dr Schmaman also acknowledged that initially his insight was poor. When he first appeared before the Medical Council in May 2016, he did not disclose the level of his attraction to Patient A or the frequency of their communications. He thinks that was because of the fear and shame he experienced. The fact that he was facing criminal charges also led him to take a defensive approach.
In June 2017, Dr Schmaman told a consultant psychiatrist, Dr Reutens, that at the first consultation Patient A's behaviour had been seductive and he felt she was manipulative. Dr Schmaman says that he now admits that he was the manipulator and that he took advantage of her vulnerable situation. He did not acknowledge that he was totally to blame until the second half of 2017, after the sentencing hearing. At the hearing before the Tribunal, Dr Schmaman repeated his current view that Patient A was blameless.
Dr Schmaman's level of insight and remorse and the likelihood of re-offending was also the subject of expert evidence. Dr Schmaman consulted Simon Brigham, a psychologist in 2016 following his arrest. He saw him four times in that year. Despite developing a good rapport with Dr Brigham, he did not continue to see him because of Dr Brigham's unavailability.
Dr Schmaman's solicitor in the criminal proceedings arranged for him to be assessed by Dr Reutens who wrote a report dated 9 June 2017. She diagnosed Dr Schmaman with "adjustment disorder with depressed mood" and "fetishistic disorder." In her opinion, he requires insight oriented psychotherapy on a weekly basis for at least one year.
Dr Schmaman's current solicitor arranged for him to be assessed by Dr Wright, a consultant psychiatrist. Dr Wright provided two reports dated 1 May 2018 and 24 January 2019. In the first report he records Dr Schmaman telling him that he had stopped any activity previously linked to his shoe fetish. At the time of the assessment in 2018, Dr Wright did not think that Dr Schmaman met diagnostic criteria for either an adjustment disorder with depressed mood or major depression. He noted that Dr Schmaman had spent considerable time and energy trying to better understand his professional responsibilities and his own personal vulnerabilities. In his opinion, it was important for Dr Schmaman to have further opportunities to reflect on his personal and professional practices through ongoing psychiatric treatment and professional supervision.
Dr Schmaman saw Dr White, a psychiatrist in Canberra, three times from June to September 2018. He found those sessions useful but the travel involved was an issue. In a report dated 20 January 2019, Dr White stated that Dr Schmaman had told him that he had no current overwhelming sexual interest in shoes. He diagnosed him with a chronic depressive disorder and an adjustment disorder with anxiety. He considered Dr Schmaman to be fit to undertake general practice with restrictions. He said he would need supervision by a senior member of the practice if he were permitted to return to work as a medical practitioner. Dr White recommended that he would benefit from periodic review with a specialist psychiatrist.
When he moved to Melbourne at the end of 2018, Dr Schmaman commenced seeing another psychiatrist, Professor Eisenbruch. Prof Eisenbruch is a psychiatrist with 41 years of clinical experience and, for the last 10 years, has had a particular interest in the psychological aspects of boundary violations by health practitioners. Dr Schmaman considers the two appointments he had in January 2019 to have been of real benefit. Prof Eisenbruch provided a short report dated 29 January 2019.
Prof Eisenbruch does not consider that Dr Schmaman has psychopathic or narcissistic traits, but he is neurotic. He reported that Dr Schmaman was "highly motivated to pursue in-depth psychotherapy not only in response to his predicament with his medical career but also through genuine personal suffering, and a recognition that his conduct was a result of significant psycho pathology which had to be addressed." Prof Eisenbruch offered Dr Schmaman psychotherapy and he accepted.
Prof Eisenbruch gave the following opinion on the benefits of psychotherapy (with references deleted):
A focus of the psychotherapy will bring to light the developmental foundations of Dr Schmaman's boundary violation. These insights may enable Dr Schmaman to face the truth about self-deception so commonly seen in doctors who have transgressed - for example, defensive compartmentalisation, temporal splitting and projective disavowal 'by which they tolerate the unethical behaviour in the clinical setting'. A related objective is to help Dr Schmaman to mentalise and understand that the perspective of his female patients may be different to his. He will need to grasp the difference between intent and impact. . . . The therapy will strengthen Dr Schmaman's grasp of distinctions, for example, between boundary crossings and violations, the importance of preventing progressive breaks in the therapeutic frame, and methods for rigorous self-monitoring. In this iterative process, it is anticipated that in due course Dr Schmaman will become better equipped to safely resume medical practice.
In his experience, intensive psychotherapy helps people gain genuine insight into their behaviour and their fantasies and identify any childhood or other developmental reasons for that behaviour. The person's unconscious imperative to repeat the same mistakes is replaced with genuine insight into the reasons for their behaviour. According to Prof Eisenbruch, Dr Schmaman needs to understand Patient A's thinking and avoid the impulse to gratify his own needs. He emphasised that the shoe fetish is a symptom, not a cause of the behaviour.
In Prof Eisenbruch's view, Dr Schmaman needs at least 3 months to get the therapy "launched" and then a further six months to 3 years before he develops an understanding of his behaviour and how to prevent it. Prof Eisenbruch was adamant that Dr Schmaman should not re-commence medical practice until he undertakes significant and intensive therapy. After that, he may be able to practise on certain conditions.
In a second report dated 24 January 2019, Dr Wright expressed the view that the depressive disorder and fetishistic disorder were in remission but could recur. Dr Wright supported Dr Schmaman's decision to engage in a dynamically oriented therapy on a regular and ongoing basis. That kind of treatment would, in his view, be more likely to have to have a substantive and enduring benefit than intermittent or short term treatment by a psychologist or psychiatrist. Significantly, Dr Wright was not convinced that the therapy and treatment that Dr Schmaman had engaged in so far had enabled him to fully address the issues.
[29]
Other relevant considerations
Dr Schmaman submitted that, apart from the need for ongoing treatment, there were other factors that we should take into account in determining what protective orders we should make.
First, in relation to the surrounding circumstances, Dr Schmaman said that, at the time, he was working extremely hard and his relationship with two other doctors in the practice was strained. He was the general practitioner for a nursing home and, in his words, "the demands were endless". Dr Schmaman did not suggest that these circumstances were an excuse for his behaviour, but rather that they partially explain the stress he was experiencing at the time.
Secondly, in relation to his general character and the risk of re-offending, he said that he had never had to respond to a complaint of any kind before. He also relied on references from colleagues. Dr Jennifer Wray worked in the same practice as Dr Schmaman for several years. In her view, Dr Schmaman was courteous and conscientious. She was dismayed by the charge of indecent assault as it seemed inconsistent with his character and behaviour. Another general practitioner, Dr Gudrun Muller-Grotjan, said that he had worked closely with Dr Schmaman since 2006. He had found him to be courteous, well liked and dedicated. He also expressed surprise and found the charges out of character.
Thirdly, Patient A had some legitimate pain issues including injury to her left hand in a car accident and a history of endometriosis and back pain. These conditions justified prescribing pain relief.
Fourthly, Dr Schmaman took some steps to control Patient A's intake of medications. For example, On 10 September 2015, he drew up a schedule in an effort to reduce the dose of Diazepam from 15mg morning and night to 10mg morning and night over a 3 month period. Patient A did not sign this agreement and Dr Schmaman acknowledged that his efforts to reduce the dose were totally unsuccessful. On 16 September 2015, Dr Schmaman drew up a contract listing his expectations of Patient A. This was a standard document used in the medical practice. She did not comply with it.
Fifthly, he has undergone further education since these incidents. That education includes the following:
1. in 2016 he completed the 'issues in general prescribing' course via Monash University;
2. in 2017 he completed 'communication skills in general practice', 'medicolegal issues and patient safety' and benzodiazepine prescribing in general practice' via the RACGP;
3. in 2017 he completed the 'medical ethics' course via Monash University;
4. in 2017 he completed an online course run by St Vincent's on 'mindfulness-based CBT anxiety depression'; and
5. in 2018 he completed the 'mental health' and 'addictions' and 'pain management' courses through the RACGP. He also completed a health records course and two RACGP courses on end of life care.
[30]
Conclusion
Dr Schmaman has grossly abused his position of authority by indecently assaulting Patient A in his surgery. In the sentencing judgment, Haesler J characterised the offence as serious, but added that it "falls well below the middle range of objective seriousness" for this kind of offence. The District Court imposed an 11 months suspended sentence. This assault took place after five months of inappropriate interactions detailed in the Complaints. Dr Schmaman was justified in giving Patient A some pain relief, but not the kind of medications or the dosages that were given. He knew what the risks were in prescribing Patient A the medications in the quantities and combinations that he did, but did virtually nothing to alleviate those risks.
Patient A was a vulnerable person with complex physical and mental conditions. In the sentencing judgment, Haesler J accepted that this assault "changed her life". Dr Schmaman now acknowledges that it was sexually gratifying for him when she came to see him and he was blinded by that attraction.
There is no suggestion that Dr Schmaman has engaged in any misconduct, other than the conduct during the five months of the complaint period. We accept the evidence from his referees that he treats other patients courteously and professionally. Dr Schmaman was subject to various stressors during this period but none of the experts attributed his behaviour to those circumstances. Dr Schmaman has completed some courses on line. The courses in ethics may have alerted Dr Schmaman to some of the red flag issues in boundary crossing.
Dr White expressed the view that Dr Schmaman is fit to undertake general practice with restrictions. We are not persuaded that that is the appropriate outcome. Around the time when Dr Schmaman was suspended from practice in May 2017, Dr Reutens recommended "insight oriented psychotherapy on a weekly basis for at least a year." Dr Schmaman did not act on that advice and has only recently commenced psychotherapy. We are persuaded by Prof Eisenbruch's recent opinion that Dr Schmaman should not re-commence medical practice until he has undertaken such therapy. That view is consistent with Dr Wright's opinion that the therapy and treatment that Dr Schmaman had engaged in so far has not enabled him to address fully the issues.
According to Prof Eisenbruch, it may take between 9 months and 3 years before Dr Schmaman develops an understanding of his behaviour and how to prevent it. We accept that Dr Schmaman is extremely remorseful but, until he successfully undertakes significant and intensive therapy, there is a risk of re-offending. Uncertainty as to whether the psychotherapy will be successful and how long it will take, leads us to determine that Dr Schmaman's registration should be cancelled.
In determining the length of cancellation, we take into account not only the time it may take for Dr Schmaman to address the underlying issues, but also the need to denounce such serious misconduct. We acknowledge that no order should be made which has more serious consequences for the practitioner than is reasonably necessary in execution of the protective purpose of the legislation: NSW Bar Association v Meakes [2006] NSWCA 340 at [114]. All the circumstances lead us to the conclusion that we should cancel Dr Schmaman's registration and prevent him from applying for re-registration for two years. That is sufficient time to allow him to engage in the psychotherapy and is also commensurate with the level of seriousness of his offending.
The Commission also sought a prohibition order: National Law, s 149C(5). The Tribunal may make such an order if it is satisfied that Dr Schmaman "poses a substantial risk to the health of members of the public":
(5) If the Tribunal suspends or cancels a registered health practitioner's or student's registration and it is satisfied the person poses a substantial risk to the health of members of the public, it may by order (a "prohibition order" ) do any one or more of the following--
(a) prohibit the person from providing health services or specified health services for the period specified in the order or permanently;
(b) place specified conditions on the provision of health services or specified health services by the person for the period specified in the order or permanently.
"Health services" are defined in s 5 of the National Law to include the following services, whether provided as public or private services:
(a) services provided by registered health practitioners;
(b) hospital services;
(c) mental health services;
(d) pharmaceutical services;
(e) ambulance services;
(f) community health services;
(g) health education services;
(h) welfare services necessary to implement any services referred to in paragraphs (a) to (g);
(i) services provided by dietitians, masseurs, naturopaths, social workers, speech pathologists, audiologists or audiometrists;
(j) pathology services.
The Commission did not provide submissions about the meaning of "substantial risk" or the reasons we should make a prohibition order. The Tribunal discussed the meaning of that term in Health Care Complaints Commission v Menz (No 2) [2017] NSWCATOD 172 at [18]. We adopt the Tribunal's interpretation of this phrase at [19]:
Given the context in which it is used, the word "substantial" in our view should be interpreted to mean a risk that is real and material. It is implicit from the terms of s 149C(5) that the question of whether a person poses a substantial risk to the health of the public must be assessed by evaluating the risk posed to the public if the person were to be involved in the provision of health services.
We have assumed that the Commission's submission is that there is a substantial risk to the health of members of the public if Dr Schmaman is permitted to provide any of the defined health services. Haesler J found when sentencing Dr Schmaman he was "unlikely to re-offend". We have concluded that there is some risk of re-offending, but not that that risk is substantial. The Commission has not discharged its onus of satisfying us that a prohibition order should be made.
[31]
Costs
The Tribunal may order Dr Schmaman to pay the Commission's costs: National Law, Sch 5D, cl 13(1). As the Commission has been successful, the general rule is that the medical practitioner should pay the Commission's costs: Health Care Complaints Commission v Philipiah [2013] NSWCA 342 at [42]. Dr Schmaman agreed that the Tribunal should make such an order.
[32]
Orders
1. The respondent's registration is cancelled.
2. The respondent may not apply for review of Order 1 for two years from the date of this decision.
3. The respondent is to pay the costs of the Health Care Complaints Commission as agreed or, if not agreed, as assessed.
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: 30 May 2019
Parties
Applicant/Plaintiff:
Health Care Complaints Commission
Respondent/Defendant:
Schmaman
Legislation Cited (6)
Health Practitioner Regulation (New South Wales) Regulation 2010(NSW)