Health Care Complaints Commission v Segal

Professional misconduct

1. The allegations in each of Complaint One, particular 6, and Complaint One, particular 10, were unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration under s 139E of the National Law (see also s 144(b)). It is fundamental to the doctor/patient relationship that the doctor's role in the relationship is to help the patient with the patient's medical problems. The Medical Board of Australia document 'Good Medical Practice: A Code of Conduct for Doctors in Australia' March 2014 (Exhibit A1 tab 46) ('the Code of Conduct') says, at 3.2.6: 3.2 Doctor-patient partnership A good doctor-patient partnership requires high standards of professional conduct. This involves: … 3.2.6 Recognising that there is a power imbalance in the doctor-patient relationship, and not exploiting patients physically, emotionally, sexually of financially.
2. The relationship that Dr Segal pursued with Patient A, which was the subject of Complaint One, particular 6, was exploitative of her, emotionally. He sought and obtained information from her about her social, sexual and relationship exploits for his own gratification. There was no therapeutic benefit to Patient A in this part of the relationship.
3. The Code of Conduct says, at 3.14: 3.14 Code of Conduct Whenever possible, avoid providing medical care to anyone with whom you have a close personal relationship. In most cases, providing care to close friends, those you work with and family members is inappropriate because of the lack of objectivity, possible discontinuity of care, and risks to the doctor and patient. In some cases, providing care to those close to you is unavoidable. Whenever this is the case, good medical practice requires recognition and careful management of these issues.
4. Dr Segal pursued a close, confiding, personal relationship with Patient A, for his own gratification, having met her as a patient.
5. The Code of Conduct says, at 8.2: Professional boundaries are integral to a good doctor-patient relationship. They promote good care for patients and protect both parties. Good medical practice involves: 8.2.1 Maintaining professional boundaries. 8.2.2 Never using your professional position to establish or pursue a sexual, exploitative or other inappropriate relationship with anybody under your care. This includes those close to the patient, such as their carer, guardian or spouse or the parent of a child patient. Specific guidelines on sexual boundaries have been developed by the Medical Board of Australia under the National Law. 8.2.3 Avoiding expressing your personal beliefs to your patients in ways that exploit their vulnerability or that are likely to cause them distress.
6. Dr Segal used his position as Patient A's general practitioner to establish the inappropriate relationship with her, which was the subject of Complaint One, particular 6.

The HCCC's evidence on protective orders

1. The HCCC provided us with a bundle of documents in relation to the imposition of protective orders (Exhibit 2A1).
2. Some of the documents provided by the HCCC relate to past complaints made in relation to Dr Segal. The HCCC did not rely upon the substance of those complaints. It was concerned only to provide the history of Dr Segal's responses to those complaints.

Complaint by Patient Y on 18 August 2011

1. The first document in Exhibit 2A1 was a conduct interview report of 12 February 2013 relating to a complaint made against Dr Segal on 18 August 2011 by Patient Y. Patient Y was an employee of the practice at which Dr Segal was working at the relevant time, and she had also consulted Dr Segal as a patient on two occasions with respect to anxiety and depression. Dr Segal was then a 38 year old married man with a young baby. Patient Y alleged that Dr Segal had met her after a sporting match to drive her home and, on the way home, had stopped the car, touched her inappropriately on the legs and arms and tried to kiss her three times. Patient Y said that the incident impacted on her depression and self-esteem. Patient Y felt compelled to leave her job.
2. In the course of the conduct interview, Dr Segal agreed that he kissed Patient Y on the way home from the sporting match, but denied that he had touched her inappropriately or forced himself upon her. The conduct interview report records that Dr Segal said 'that offering to drive [Patient Y] home and offering to take her for coffee was blurring boundaries. He said he had learnt from this episode and that previously he had found it difficult to "set boundaries". Dr Segal acknowledged that he had a doctor/patient relationship with Patient Y, and that she had consulted him with respect to depression.
3. Dr Segal had purchased a Hepatitis B vaccine and administered it to Patient Y. Dr Segal, in the conduct interview, said that 'he now saw the difficulties in treating an employee'.
4. The report said: The Panel counselled Dr Segal that his work relationship could impact on and potentially compromise his management of [Patient Y] and cautioned him to avoid treating work colleagues. Dr Segal recognised the power relationship between doctor and patient which compounded the existing power relationship that existed between them as employer-employee. The Panel criticised Dr Segal for engaging in such activities knowing that [Patient Y] was suffering from anxiety and depression and therefore particularly vulnerable. Dr Segal said that since the complaint he had not treated any colleagues. He felt that it blurred boundaries treating colleagues and friends. He said that he no longer wrote prescriptions even for minor problems such as conjunctivitis.
5. There was a further allegation that Dr Segal had sexually harassed Patient Y for a period of 3 years. The report said: … Dr Segal was asked if on reflection he could see anything in his behaviour or communication style which may have conveyed a sexual message. He said he understood that things could be misinterpreted and that in particular the text messages he had sent to [Patient Y] could have been construed as being flirtatious. Dr Segal said that since the complaint he had ceased the practice of sending text messages to his staff.
6. The report further said: Dr Segal said that once he was aware of the allegations in the complaint, he sought advice from his friends and colleagues. He consulted his GP because he was not sleeping and was suffering from anxiety. Dr Segal was referred to a psychologist whom he saw weekly for 4-6 sessions then 3 monthly thereafter. Dr Segal said that the psychotherapy had been very beneficial and had helped him to understand what had transpired between [Patient Y] and him. It had also been supportive and had assisted him with his anxiety.
7. At the conduct interview, Dr Segal was referred to the Code of Conduct, particularly Doctor-Patient Partnerships 3.2, Effective Communication 3.3 and Professional Boundaries 8.2. The report says, of these sections of the Code of Conduct: These were formally reinforced and he was strongly counselled to enforce professional boundaries.

Proceedings under s 150 of the National Law in July 2014

1. The second document in Exhibit 2A1 is the written decision arising from proceedings under s 150 of the National Law by the Medical Council of New South Wales against Dr Segal. The hearing was held on 11 July 2014 and the written reasons are dated 3 November 2014.
2. The s 150 proceedings arose from a complaint by a 19 year old female assistant (the Assistant) working at the same practice as Dr Segal. The complaint related to the events of two days in 2013.
3. The Assistant accused Dr Segal of pressing his groin against her buttocks in a procedure room whilst they were preparing for a procedure on 25 June 2013. Shortly afterwards, during another procedure, the Assistant said that he was holding her right hand whilst she was handing him instruments. Later that day, the Assistant said, Dr Segal made sexually themed comments and showed her, on his I-phone, a photograph of a naked man with an erection, and initiated a conversation about the size of the penis shown in the photograph.
4. The Assistant said that, on 2 July 2013, at work, Dr Segal rubbed her forearm whilst biting his lips, after asking her when she was going to get two moles on her forearm checked. Later, after a patient left the procedure room, the Assistant said that Dr Segal shut the door with his foot and said "We must do a scrum", and then pulled the Assistant to his body in a "bear hug" so that their faces were right next to each other and the Assistant could feel Dr Segal's breath on her face. The Assistant backed away, into a Hyfrecater machine which she nearly fell over. The Assistant said that, later that day, Dr Segal said to her: I'm a married doctor and if you maybe ever wanted to kiss me you know it would be safe
5. The Assistant said that, later, on the same day, during a procedure when the patient had a drape over her face, Dr Segal again pressed his body against the Assistant, and kissed her on the right side of her neck. After the procedure, whilst the Assistant was carrying something to Dr Segal's car for him, Dr Segal allegedly made suggestive remarks to her.
6. The Assistant reported the matter to the police on 5 July 2013. The police instituted criminal proceedings against Dr Segal.
7. Before the s 150 panel, Dr Segal denied all of the allegations. The panel, in its report, said: Dr Segal said that the allegations made by a colleague had made him very upset and affected him deeply and to address his depression he sought professional help from Dr George Jacobs, a consultant psychiatrist. There is a letter from Dr Jacobs stating that he first saw Dr Segal on 10 July 2013. In the letter Dr Jacobs stated that "he (Dr Segal) previously did not understand the concept of 'personal space' and that it varied amongst members of the general public." Dr Segal said that the allegations had also highlighted to him that certain of his actions may give rise to misunderstandings and he is now more aware of his manner and demeanour when dealing with his colleagues.
8. The panel further said: He [Dr Segal] said he had taken the charges seriously and had been seeing his psychiatrist for treatment and he wanted to reassure the Council that he had changed as much as he can. He confirmed that he is seeing Dr Jacobs to change his demeanour, be aware of his actions and interpersonal skills and the way he is looked upon by others. He said that he has never done anything inappropriate in his personal relationships. He denied the allegations and said there had never been any inappropriate behaviour that has involved patients.
9. The s 150 panel, as delegates of the Medical Council of New South Wales, imposed conditions upon Dr Segal's registration on 3 November 2014.
10. Dr Segal subsequently sought the review of the decision of the s 150 panel, under s 150A of the National Law, on the basis that the charges of indecent assault had been dismissed by the Gosford Local Court on 4 September 2014. In its decision of 4 February 2015, the s 150A panel considered Dr Segal's submissions about his practice and his lifestyle generally, his compliance with the conditions and the absence of further complaint, and removed the conditions from his registration.
11. Exhibit 2A1 also included the decision of the s 150 panel dated 7 July 2020 in relation to the complaint of Patient A which is the subject of these proceedings.

Dr Segal

1. Dr Segal provided a statement and gave oral evidence.
2. Dr Segal said that he opened his own practice, 'Skin Cancer Only' on 2 November 2020. He is the only general practitioner working in the practice and performs only skin cancer work. His wife is the practice manager. He employs Ms Bailey, a skin cancer nurse practitioner. Skin Cancer Only has two premises; one in Edgecliff and one in Kingswood in the City of Penrith.
3. Dr Segal's family moved to Perth, Western Australia in April 2022. Dr Segal said that he works at Skin Cancer Only from Monday to Thursday each week, and then flies to Perth on Thursday evening, returning to Sydney on Sunday evening. Dr Segal said that the move to Perth occurred so that his family could be close to his brother-in-law's family. Dr Segal said that he has no family in Sydney (transcript p 12).
4. Dr Segal performs skin cancer surgery at the Double Bay Day Hospital for one half day each week, and also works for one half day at the Geniale Skin Cancer Centre in Drummoyne. For the balance of his four day working week, he works at one or other of the Skin Cancer Centre premises.
5. In his statement, Dr Segal said that all of his patients, from all of the locations at which he works, use a single contact number to book appointments and to communicate with him and his staff. He said: 45. My wife now works as my practice manager at Skin Cancer Only. She triages phone calls either for bookings which she does online for myself and for my nurse. She also directs queries to my nurse and to me if required. She is able to ensure that my current practice conforms to the conditions of my registration. 46. I am deeply committed to ensuring that professional boundaries are always maintained in all of my interactions with patients moving forward in accordance with my professional obligations. I have made significant changes to myself and the way in which I practise medicine to ensure that this occurs. Furthermore, the Skin Cancer Only Practice has been established with firm policies in place to support and entrench those changes I have made.
6. In cross-examination, Dr Segal said the following (transcript p 30-31): Q: You talk about your wife being your practice manager? A: Yes. Q. How does that work with her living in Perth and you practising in Sydney? A. Okay, so we have phone lines which are directed at a certain time of the day so for what works out to be morning here up until about 11 o'clock we have a lady here who answers who to phone is directed to and then come 8 o'clock Perth time she takes over the phones. We also have a secondary system where if there doesn't get hold of one person it sends an email to the nurses as well and to our admin team and then she does all the billing remotely, all the bookings, and we also have a lady here who helps us with bookings. … Q. Can I take you to paragraph 45 of your statement? A. Yes. Q. There you talk about the role that your wife plays at your practice? A. Yes. Q. Including triaging calls? A. Yes. Q. But you make no mention of anybody else also answering those calls, do you? A. Well, no, because remember the clocks have only changed recently two hours so she's been doing it - the majority of the time she does it herself or she diverts it to Roslyn, my nurse. This lady is only used intermittently and it's only literally been since the clocks changed which I think was October where daylight saving clocks changed and it's literally only when Roslyn, our nurse, is busy with procedures. So Roslyn is taking the majority of the calls, only the incidence where Roslyn is busy; where my wife is not there; where the admin lady who's there whose name is Bernice takes the calls, but, the majority are definitely managed by my wife, Roslyn and Bernice is taking a few of the calls at home but there are very minimal that's why I didn't mention it at the time [sic]. Q. Don't you think that was an important detail to include in your statement? A. Well, the statement was made in September, the clocks only change in October where we started realising that for a few hours and it's actually hardly used at all because at the moment what we're finding is that the calls that come in early morning, Roslyn is taking the majority of them so there's possibly one a week that Bernice is taking [sic].
7. In cross-examination, Dr Segal said that, depending upon the outcome of this matter, he intends to establish a practice in Western Australia and commute between the two States less frequently.
8. In his statement, Dr Segal said, in relation to the decision of the Tribunal with respect to the allegations made in Patient A's complaint: 19. I have read the decision of the Tribunal dated 27 July 2022 and accept its findings in full. 20. I accept that my inappropriate personal relationship with Patient A and the associated conduct amounted to unsatisfactory professional conduct and further, that this inappropriate personal relationship and the number of phone calls I made to Patient A between October 2016 and December 2019 amounted to professional misconduct. 21. I acknowledge that by engaging in a prolonged personal relationship with Patient A that I have breached professional boundaries and that this was wholly inappropriate and not in keeping with my professional obligations. I also acknowledge that as the medical practitioner, there was imbalance of power between Patient A and myself, and that it was therefore incumbent on me to ensure that the professional boundaries between us were upheld and that I failed my obligations to Patient A in this regard. 22. I unreservedly apologise to Patient A for the distress that I have caused her through my actions and my failure to maintain the professional boundaries between us. 23. Reviewing the decision of the Tribunal has greatly assisted me in gaining further and deeper insight into my behaviour and developing an understanding of how at fault I was with the blurring of boundaries between Patient A and I. It has also grown my understanding of the true nature of the responsibilities I have to my patients, the public and myself in my role as a medical practitioner. 24. Further, revisiting and reviewing the previous complaints and my actions as set out in the evidence of the Health Care Complaints Commission has caused me to feel deep disappointment and shame at how I behaved. I am also ashamed that only after receiving this further Complaint from Patient A, that I have understood the true consequences, and what the possible repercussions were, of my previous actions as well as the reasons for why I behaved in that manner in the past. Gaining an understanding of my own personality traits and the possible motivation behind my previous actions has helped me develop strategies and make changes to my practice to ensure a complaint of this nature does not arise again in the future.
9. Dr Segal set out the continuing professional development activities he has undertaken. He said, among other things: 26. I have reviewed "Good Medical Practice A Code of Conduct for Doctors in Australia" a number of times. Reviewing the Code of Conduct has helped me understand the importance of maintaining professional boundaries with patients and the ways in which boundary violations can occur. I now always ensure that I uphold and maintain appropriate professional boundaries with all my patients and these are not breached in any way.
10. In his statement, Dr Segal referred to the material provided by the HCCC and said: 30. I … accept that matters of a similar nature to this present matter have occurred in the past. 31. While I always endeavoured to make changes to my practice following each of these incidents, during the last 2 years my understanding of patient boundaries and the importance of them has changed dramatically through my work with Dr Michael Diamond and Dr David Shapiro.
11. Dr Segal said that he had, through his work with Dr Diamond, identified various character traits which led him to behave as he had with Patient A. He said that he now had insight into why he had behaved as he had.
12. Dr Segal said that he would now, if presented with a patient like Patient A, refer her to a general practitioner. He said that he no longer provides his mobile phone number to patients under any circumstances.
13. In cross-examination, Dr Segal agreed that his unusual and persistent telephone contact with Patient A within the two week period after her fist consultation with him was not necessitated by any medical issue and occurred for Dr Segal's gratification.
14. In cross-examination, Dr Segal was reminded that he told the s 150 hearing, in relation to Patient A's complaint, that a practice nurse was always present in the consulting room when he saw a patient in the time frame of Patient A's complaint. That proved not to have been true, as set out in the first Tribunal decision (see [49]-[52]). The following exchange took place (transcript p 14): Q. How is it that you say today that the tribunal can believe what you say, Dr Segal? A. At the time when I made it [ie, that statement about Ms Bailey] it was our policy that she was always present, so I just immediately assumed it. That's a very different practice to the practice I've had now as well, whereas now the nature of my work, the nature of my business is solely skin cancer, is solely run by my staff and patients are brought into the room, escorted and dressed, everything by my nursing staff. … A. Well when I initially went into that 150 and there were other nurses before Roslyn Bailey, I, in my mind, I thought there were people there. I was wrong. Okay, that the whole time I assumed there was someone there, because… Q. You actually said that Ms Bailey was there? A. Yes. I made that mistake. So I will not make mistakes in any future reference because I'm not - how can you believe me is because I am determined through the way I run my practice and I imagine that there will be no circumstances where there is any doubt in the way that I practice or the people who are with me. Whereas in the past it was in a general practice. It wasn't my own business. It was nurses who were coming in intermittently and I had no control over that specifically the whole time. Now I believe that I am completely in control of who's in the room the whole time and I am clear moving forward. At that time I thought that that was the practice, I didn't think about it enough. I didn't realise the times, the dates and I apologise of their behalf. That's certainly I feel I can be trusted now.
15. The following exchange took place during the cross-examination of Dr Segal: Q. I took you to those findings at paragraph 153 of the Tribunal Dr Segal about the Tribunal's concerns about your characterisation of yourself as concerned and the helpful observer and also that at times during your evidence you said that you called Patient A so often because she asked you to. Do you agree that that evidence was not viable evidence from you? A. I do recall her asking at the end of every conversation "please call me, please call me later". What I'm realising now is that I should never ever have been doing that but that was what I believed yes and is what I still believe. That is my recollection. Q. And what about the concerns of helpful observer? A. Yes I did believe during those years that I was helping her. That was my belief at the time. Now when I look at that I still think I was trying to help her at the time but it was all the other issues, the need to feel the centre of her world. I liked being - you know I like the way it made me feel hearing about the drama in her life and about the community, absolutely. Those were the problems I picked up but I do recall her telling me to please phone me. "Please, I know you can't talk, can you phone me later, can you". Yes, I do recall that. Q. So is it still your view that you were helping her? A. So my view is now that my actions were misguided, I believed that I was helping her at the time but now on reflection okay I realise how I wasn't helping her at all. Q. It was about you, Dr Segal? A. Correct, it was about my own character traits and need for validation. Q. And satisfaction through those conversations? A. True.
16. In cross-examination, Dr Segal was taken to the events of 2011 which resulted in the complaint being made by the female employee who was also a patient of Dr Segal's, who is referred to, above, as Patient Y. Dr Segal agreed that he had offered to drive Patient Y home and take her out for coffee. He agreed that his conduct with Patient Y was a blurring of boundaries. He agreed that the counselling interview with respect to this matter brought to his mind the need to exercise caution with women in his practice.
17. Dr Segal was taken to the Conduct Interview Report of 12 February 2013, which said, at p 4-5: Dr Segal was referred to a psychologist whom he saw weekly for 4-6 sessions then 3 monthly thereafter. Dr Segal said that the psychotherapy had been very beneficial and helping him understand what had transpired between Patient Y and him. It had also been supportive and assisted him with his anxiety.
18. Dr Segal was asked why he didn't use what he had gained in the 2013 process to avoid the situation which subsequently arose with Patient A. Dr Segal said: Because what I thought I understood then was very different to what I understand now. I, at that time, didn't have true insight at all, I thought I did and I thought I was on top of it and I thought it made sense but I was able to brush past it and I'm embarrassed about my behaviour in the past. There's no excuses.
19. Dr Segal said that he realised that an ethical boundary had been breached in relation to Patient A within about six months of first seeing her. However, he continued to see her and speak to her for a further two and a half years. Dr Segal agreed that he was knowingly, "intermittently", on the wrong side of the ethical boundary with Patient A during the last two and a half years of their contact (see transcript p 22-23).
20. In cross-examination, Dr Segal said that, when discussing the Tribunal's decision with him, Dr Diamond had admitted that Dr Diamond was mistaken when he had said, in evidence, that Dr Segal told him that he had given Patient A his mobile phone number (transcript p 33-34).
21. In examination in chief, Dr Segal said (transcript p 7): Q. Have you had a discussion with Dr Diamond as to how long his treatment of you will continue? A. Yes. Q. What did he say, if anything? A. He said that we've achieved a lot in the last two years of therapy and it would be beneficial although we probably didn't need it as often to continue intermittently to touch base on how my changes have affected my life, my personality, my family and my role as a doctor.
22. In cross-examination Dr Segal said (transcript p 8): Q. In relation to the question about you agreeing if this tribunal was minded to impose a condition for you to continue to receive treatment with Dr Diamond, have you read Dr Diamond's most recent report? A. Yes, I have. Q. In his report he says that he's retiring at the end of this year? A. Yes. Q. Have you made enquiries about somebody else who would be suitable? A. We've discussed it together, Dr Diamond and myself, and although he won't be taking new patients, he said until we've found someone appropriate he will continue to see me.

Dr Diamond

1. Dr Diamond is Dr Segal's treating psychiatrist. Dr Diamond first saw Dr Segal on 24 November 2020. Consultations continued approximately monthly throughout 2021 and approximately every three weeks throughout 2022.
2. Dr Diamond plans to retire from clinical practice at the end of 2022. In his statement, he said: Dr Segal is aware of my retirement from clinical practice at the end of this year. It is probable that Dr Segal will join his family who have moved to Perth in the interim and where they have settled over the past months. Dr Diamond said that future consultations between Dr Segal and his "appropriately trained and experienced therapist" should occur at about monthly intervals in the future.
3. In oral evidence, Dr Diamond said (transcript p 40): Q. And you've also indicated to Dr Segal that it's your intention to retire, can you explain to the tribunal whether you will continue to see Dr Segal for a period of time or if not how you would envisage a transfer to another psychiatrist? A. Well I wouldn't see Dr Segal for ongoing clinical treatment. I'm not seeing any more patients as of the end of this year and as for transferring his care to someone else I think that would depend on where he's living and the nature of the people he's likely to see in that environment.
4. Dr Diamond has been treating Dr Segal with psychoanalysis. Dr Diamond said that Dr Segal has engaged strongly with therapy, and that beneficial results are evident. In his report of 15 September 2022, Dr Diamond said, at p 39 and p 41: Over the extended period, there is exploration of the influence of role modelling within his family, within the culture in which he grew up and within the society in which he was raised. There is identification of dysfunctional perceptions and attitudes that were part of his upbringing and environment within the context of growing up in South Africa during that era. There is exploration of unchallenged perceptions of entitlement based upon the intrinsically hierarchical society where elitism, an unquestioned place in the hierarchy and privilege, racism and sexism went unchallenged. These influences were not unique to Dr Segal but formed an important backdrop to his developmental history. He has gained helpful insight into these aspects of his developmental history. The therapy has continued to focus upon the deficiencies regarding a sound understanding of professional ethics, knowledge of codes of conduct relevant to this medical professional and a deeper appreciation of the ethical underpinnings of the material recorded in the code of conduct. With greater insight, Dr Segal sees the extent to which past attitudes were held and how they have influenced his conduct. These principles are reiterated in the course of examining the day to day interactions that Dr Segal describes during his therapy sessions. With his substantially improved insight into the issues described, his ability to conduct himself professionally, interact with others, engage with his family members and perceive and express genuine empathy has developed substantially. Dr Segal's diagnosis has not changed. There is no significant psychiatric disorder to diagnose other than a reactive conduction that is described as Adjustment Disorder with Anxiety and Depression. It occurs as a consequence of his current response to external stressors that are related to the subject matters. … He is assisted by the developed insight that he now has that includes the appreciation of the predicament of the complainant, the shortcomings in his conduct and his capacity to demonstrate empathy and contrition about the effects upon the complainant that result from his conduct. There is strong evidence that supports the extent of the shift in Dr Segal's mindset and attitudes that were expressed in his considerably more superficial and glib responses to previous counselling and disciplinary hearings in the past. The underlying improved insight is clearly evident in relation to his acceptance and understanding of the Tribunal judgment.
5. In cross-examination, Dr Diamond said, in relation to Dr Segal's future therapy: I think Dr Segal knows that he needs to continue, but he needs to continue in a psychotherapy arrangement, and not see a psychiatrist per se. It could be a psychologist, it could be a psychotherapist from a different background. The important thing is somebody who understands his psychological makeup and will continue the process as he continues with his life.
6. In cross-examination, Dr Diamond was referred to the previous Medical Council proceedings referred to above, and the following exchange occurred: Q. During the course of those Medical Council proceedings Dr Segal gave similar reassurances to the Medical Council to what he does now with the Tribunal. That is, that he now has insight, he's received appropriate therapeutic intervention and he no longer poses a risk. Why is now different to those prior reassurances that he gave to the Council back in 2013 and 2014? A. I'll just refer to the evidence I've just given. I don't think he had any insight back then, I think he did what he thought was necessary, and that was to get through the complaints. I don't think seeing Dr Jacobs went into the realms of psychotherapy of any depth. I think he saw him - when he saw him back then, but I don't think he engaged in a therapy process in a similar way to the one he's engaged with now.
7. Dr Diamond indicated that he did not think that Dr Segal was repeating his behaviour with Dr Jacobs, of paying lip service to what he needs to say to get through the complaint, in the present context.
8. Dr Diamond was asked whether, in discussing with Dr Segal the Tribunal's decision with respect to Patient A's complaint against Dr Segal, Dr Diamond had agreed with Dr Segal that, contrary to the Tribunal's finding, Dr Segal never told Dr Diamond that Dr Segal had given Dr Segal's mobile telephone number to Patient A. Dr Diamond said that he had told Dr Segal that he gave the evidence that Dr Segal had told him that Dr Segal had given Patient A Dr Segal's telephone number because "I believe that was what I understood". Dr Diamond said "I said maybe I got it wrong but that is the evidence I've given and now it's in the finding, there's no point going back to it over and over because it's there, it's in the finding".
9. In the first hearing before us, Dr Diamond was shown his notes of a consultation on 24 November 2020 with Dr Segal in which Dr Diamond had written "Why did you give her [ie Patient A] your number". Commenting on that note, Dr Diamond said, in cross-examination "I could only have written that if I was aware that he had done that, yes". Dr Diamond confirmed that it was his understanding that Dr Segal had given Patient A his mobile telephone number.
10. The documents tendered in Dr Segal's case included a character reference from each of two specialist anaesthetists who have worked with Dr Segal. Further references were provided by a cosmetic physician and skin cancer surgeon who has worked in the same practice as Dr Segal and by Ms Bailey, an enrolled nurse who has worked with Dr Segal for about 7 years. All speak highly of the quality of Dr Segal's work. One of the anaesthetists said that he has never witnessed any inappropriate behaviour on the part of Dr Segal towards a patient, member of staff or colleague. Ms Bailey said that Dr Segal conducts himself within the professional boundaries expected of a doctor. We take into account the content of these references. In the circumstances of this matter, however, with respect to the opinions given about Dr Segal's behaviour, we can give the references little weight. It is in the nature of the type of conduct the subject of Patient A's complaint that it occurs in private, and not in the presence of an anaesthetist, a colleague or a practice nurse.

Consideration of protective orders

1. The powers exercisable by the Tribunal when a complaint against a health practitioner is proven or admitted are provided for in Part 8, Division 3, Subdivision 6 of the National Law.
2. The following powers are provided for in s 149A(1), (4) and (5) of the National Law: 149A General powers to caution, reprimand, counsel etc [NSW] (1) The Tribunal may do any one or more of the following in relation to the registered health practitioner - (a) caution or reprimand the practitioner; (b) impose the conditions it considers appropriate on the practitioner's registration; (c) order the practitioner to seek and undergo medical or psychiatric treatment or counselling (including, but not limited to, psychological counselling); (d) order the practitioner to complete an educational course specified by the Tribunal; (e) order the practitioner to report on the practitioner's practice at the times, in the way and to the persons specified by the Tribunal; (f) order the practitioner to seek and take advice, in relation to the management of the practitioner's practice, from persons specified by the Tribunal. … (4) If the Tribunal makes an order or imposes a condition on the registered health practitioner's or student's registration, the Tribunal may order that a contravention of the order or condition will result in the practitioner's or student's registration being cancelled. (5) The order or condition concerned is then a critical compliance order or condition.
3. The Tribunal has further powers under s 149B and s 149C of the National Law: 149B Power to fine registered health practitioner in certain cases [NSW] (1) The Tribunal may by order impose a fine on the registered health practitioner of an amount of not more than 250 penalty units. (2) A fine is not to be imposed unless - (a) the Tribunal finds the registered health practitioner to have been guilty of unsatisfactory professional conduct or professional misconduct; and (b) the Tribunal is satisfied there is no other order, or combination of orders, that is appropriate in the public interest. (3) A fine is not to be imposed if a fine or other penalty has already been imposed by a court in respect of the conduct. (4) A fine must be paid within the time specified in the order imposing the fine and must be paid to the Council for the health profession. 149C Tribunal may suspend or cancel registration in certain cases [NSW] (1) The Tribunal may suspend a registered health practitioner's registration for a specified period or cancel the registered health practitioner's registration if the Tribunal is satisfied - (a) the practitioner is not competent to practise the practitioner's profession; or (b) the practitioner is guilty of professional misconduct; or (c) the practitioner has been convicted of or made the subject of a criminal finding for an offence, either in or outside this jurisdiction, and the circumstances of the offence render the practitioner unfit in the public interest to practise the practitioner's profession; or (d) the practitioner is not a suitable person for registration in the practitioner's profession. …
4. In considering the protective orders that are appropriate in this matter, we bear clearly in mind that any protective orders to be made by this Tribunal are to be made solely in relation to the conduct the subject of the complaint attached to the Application for disciplinary findings and orders.
5. In Lee v Health Care Complaints Commission [2012] NSWCA 80 ('Lee'), Barrett JA, with whom Macfarlan JA and Tobias AJA agreed, said, at [31]: There is also the point that the purpose of orders in cases of professional misconduct differs significantly from the purpose of sentencing in the criminal field. As was explained in Director-General, Department of Ageing, Disability and Home Care v Lambert (above) at [83], the overwhelming emphasis in the present type of case is on the protection of the public, with notions of punishment relevant only incidentally if and when material to the achievement of the protective purpose. While protection of the public plays a significant part in the sentencing of criminal offenders, considerations of punishment, individual deterrence and general deterrence have a very prominent role that is, generally speaking, subsidiary in the exercise of a protective jurisdiction.
6. In Health Care Complaints Commission v Do [2014] NSWCA 307 ('Do'), Meagher JA, with whom Basten JA and Emmett JA agreed, said, at [35]: The objective of protecting the health and safety of the public is not confined to protecting the patients or potential patients of a particular practitioner from the continuing risk of his or her malpractice or incompetence. 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.
7. In Chen v Health Care Complaints Commission [2017] NSWCA 186 ('Chen'), Basten JA said, at [20]-[22]: 20. There is no category of unsatisfactory professional conduct which is not capable, depending on the circumstances, of giving rise to professional misconduct and hence engaging the power of either suspension or cancellation of registration. The only requirement is that it be "sufficiently serious" to justify such an order, a characterisation which must depend upon an evaluative judgment made by the Tribunal. Some, perhaps all, categories include conduct which may reveal a defect of character as to which the Tribunal may conclude that the person should not be allowed to practise his or her profession unless at some future date the practitioner is able to satisfy the Tribunal that the defect has been overcome. Incompetence or inadequate care may in some circumstances be remediable by specific steps; in other circumstances the Tribunal may be concerned that the carelessness, for example, is such as to cast doubt on the suitability of the person to practise medicine. Each of the criteria for cancellation or suspension may be analysed in this way. Each case will depend upon an evaluative judgment to be made by the Tribunal as to the nature and seriousness of the conduct. It follows that the legislative scheme is inconsistent with the implication of the abstract condition sought to be imposed by the practitioner on the language of s 149C(1). 21. Finally, in determining whether to suspend the practitioner's registration or cancel it, it is entirely appropriate for the Tribunal to take into account the consequences of the order being considered. Unless a period of suspension is made conditional, renewal of the practitioner's registration will occur automatically on completion of the period of suspension. By contrast, an order of cancellation will require the practitioner to justify re-registration. Uncertainty as to the future may lead the Tribunal to cancel a registration rather than suspend it. 22. The fixing of a period within which re-registration may not be sought may be seen to have a twofold operation. On the one hand, it indicates the minimum period within which the Tribunal considers the person should not be able to practise his or her profession; on the other hand, it holds open the possibility that an application for re-registration thereafter will at least be considered. It is entirely proper for the Tribunal to consider all aspects of the possible orders available to it in determining what order to make. The suggestion that there must be a two-stage process in undertaking that function was misguided.
8. In considering the appropriate protective orders, we also bear in mind the Objectives and Guiding principles in s 3 and s 3A of the National Law. The National Law provides, in s 3A: 3A Objective and guiding principle [NSW] In the exercise of functions under a NSW provision, the protection of the health and safety of the public must be the paramount consideration. Note - This section is an additional New South Wales provision.
9. Dr Segal initiated and maintained an inappropriate personal relationship with Patient A from October 2016 to April 2019. The relationship began following a consultation in which Patient A sought advice from Dr Segal, as a general practitioner, in relation to the high libido that she had recently been experiencing.
10. We have set out in detail in the first decision the events which occurred at the beginning of the relationship, including the texts sent by Dr Segal, and we will not repeat that narrative here in detail. In summary, Dr Segal encouraged Patient A to continue to see him, both in and out of his rooms, for the purpose of 'counselling' in relation to her high libido and the impact that it was having on her marriage and her social life. Dr Segal gave evidence that Patient A was the only patient he saw regularly as a general practitioner. His other regular patients consulted him in relation to skin cancer.
11. In the course of the relationship, Dr Segal telephoned Patient A 659 times, with 10 of those calls being for longer than 30 minutes, and the longest being for 61 minutes. In the same time period, Patient A called Dr Segal 157 times, 6 of which went for longer than 30 minutes.
12. We noted in the first decision that, from October 2016, Patient A's social life became increasingly chaotic as she engaged in sexual encounters and relationships with many men and became involved in many situations which posed risks to her mental and physical health.
13. Dr Segal sought frequent contact with Patient A, from time to time throughout the period of their relationship, because he obtained gratification from hearing about her exploits, and because he enjoyed acquiring information, which was not publicly known, about members of the community of which both he and Patient A were members. Dr Segal's relationship with Patient A was exploitative of Patient A. It was improper and unethical conduct, which endured for two years and five months, and was not in keeping with the high standard of ethical behaviour expected of a registered medical practitioner in New South Wales.
14. We have found that Dr Segal is guilty of unsatisfactory professional conduct, as alleged in Complaint One, particulars 1, 2, 3, 6 and 10. We have also found that Dr Segal is guilty of professional misconduct, as alleged in Complaint Two.
15. Dr Segal was anxious to assure the Tribunal that his new, sole, practice would incorporate safeguards to ensure that he did not enter into unethical relationships with patients or staff in the future. He emphasised, as a protective factor, the role of his wife as the person responsible for taking telephone bookings from patients of the practice. It emerged, though, in cross-examination, that the process would be more complicated than it appeared from Dr Segal's statement, and three people would actually be taking telephone calls at different times, for the practice. In any event, no system can prevent contact being arranged between a doctor and a patient outside of the practice setting.
16. Dr Segal implied that the fact that he would have control over staff movements because he was the sole practitioner would be a protective factor. The more usual view is that it is preferable for a medical practitioner who has difficulties maintaining boundaries to practise in a group practice. This is because the practitioner can seek advice and counselling if boundaries are slipping. Supervision can be put in place more readily. It is also because a patient, or staff member, who may have experienced an encounter they found uncomfortable, has someone else to complain to in a group practice. For these reasons, disciplinary action involving boundary violations will frequently result in the imposition of a condition that the practitioner must work in a group practice.
17. Dr Segal's family have moved to Perth, Western Australia. Dr Segal's wife will perform her role in the practice remotely, for most of the time. Her role as a protective factor will, therefore, be very limited during practice hours, and non-existent outside of practice hours, in a practical sense, for those days in which Dr Segal is in New South Wales and she is in Perth.
18. Some aspects of Dr Segal's evidence at the hearing on 17 November 2022 troubled us.
19. Dr Segal said, in evidence, that Dr Diamond had admitted to him that Dr Diamond had been mistaken when he gave evidence before us, on the first occasion, that Dr Segal had told him that Dr Segal had given Patient A his mobile phone number. Dr Diamond's evidence on 18 November 2022 was that he told Dr Segal that his evidence on the previous occasion about the mobile phone issue was as it was because "I believe that was what I understood". Dr Diamond gave evidence that he had told Dr Segal "Maybe I got it wrong, but that is the evidence I've given". This does not amount to Dr Diamond saying that he had been mistaken when he gave evidence in the first hearing, and it was misleading of Dr Segal to say that it did.
20. Dr Segal's registration is presently subject to condition 9, which requires him to attend for treatment by the psychologist of his choice as frequently as the psychologist determines to be necessary. Dr Segal, as at 17 November 2022, when he gave evidence, was not attending a psychologist, and had not done so for some time. Dr Segal had not sought a change to the condition on his registration. This shows a degree of carelessness about compliance with regulation.
21. Dr Segal, in evidence set out above at [52] and [53], conveyed to the Tribunal that Dr Diamond had said that he would continue to see him "intermittently" after Dr Diamond's retirement at the end of the year, until another suitable psychotherapist was found, "although we probably didn't need it as often". Dr Diamond, in evidence, stated very clearly that he "would not see Dr Segal for ongoing clinical treatment". Again, Dr Segal's evidence was at best misleading and at worst untruthful on this point.
22. Dr Segal has no current plan in place to begin psychotherapy with a new psychotherapist. As at 17 November 2022, Dr Segal had made no effort to find a new psychotherapist.
23. Dr Segal said, in summary, that his treatment from Dr Diamond had given him greater insight in relation to his behaviour and that his understanding of patient boundaries and the importance of them had changed dramatically through his work with Dr Diamond and Dr Shapiro. However, he made similar comments in relation to the 4-6 weekly sessions, followed by three monthly sessions he attended with a psychologist following the complaint of Patient Y. Following the subsequent complaint from the Assistant, Dr Segal was treated by Dr Jacobs, psychiatrist. Dr Segal told the s 150 panel that, on account of the treatment, he had "changed as much as he can". He said that he was working with Dr Jacobs to change his demeanour, be aware of his actions and interpersonal skills and the way he is looked at by others. We acknowledge that Dr Diamond believes that Dr Segal has made progress with him, and we accept that. However, it is notable that there has been a series of complaints in relation to Dr Segal about boundary violations, with very similar reassurances being given by Dr Segal of insight gained and changes made.
24. In cross-examination, Dr Segal said that he will, in future, get his gratification from his clinical work. The gratification he obtained from his relationship with Patient A is not the same kind of gratification which can be obtained from treating patients. Dr Segal's comment ignores the sexual theme of his relationship with Patient A. In saying that, we acknowledge that we found that sexual contact had not been proven. The content of Dr Segal and Patient A's conversation, however, was sexual in nature from the first consultation and continued in that way.
25. We determine that the protection of the patients and potential patients of Dr Segal, the protection of the public from similar behaviour by other practitioners (general deterrence), and the upholding of public confidence in the standards of the medical profession require that Dr Segal's registration be cancelled. There will be an order that Dr Segal may reapply for his registration one year after its cancellation.

Costs

1. Dr Segal sought an order that he pay only 50% of the costs of the HCCC on account of the time spent in the course of the hearing on evidence concerning allegation which were ultimately found not to have been proven.
2. The HCCC conceded that some time was taken at the hearing on allegations which were not proven, but submitted that a fairer reflection of that circumstance would result in an order that Dr Segal pay 80% of the costs of the HCCC.
3. After reviewing the transcript of the first hearing, we agree that the appropriate costs order is that Dr Segal pay 80% of the costs of the HCCC.

Orders:

1. We make the following orders: 1. Dr Segal's registration as a medical practitioner is cancelled pursuant to s 149C(1)(b) of the Health Practitioner Regulation National Law (NSW). 2. A non-review period of one year is imposed upon Dr Segal pursuant to s 149C(5) of the Health Practitioner Regulation National Law (NSW). 3. Dr Segal is to pay 80% of the costs of the Health Care Complaints Commission.

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: 01 February 2023