Health Care Complaints Commission v Wong

NCAT Occupational|2017-03-31

Introduction

Dr Teresa Wong (the practitioner) is a 43 year old medical practitioner. According to her treating specialist she has a diagnosis of Bipolar 1 Disorder. She is currently practising for very limited hours under supervision. Earlier, in 2015, her registration was suspended by the Medical Council of New South Wales (the Medical Council).
In a complaint annexed to an application filed in the Tribunal for disciplinary findings and orders the Health Care Complaints Commission (the HCCC) asserts that the practitioner, in a period between 2012 and 2014, engaged in conduct that was below the standard reasonably expected of a practitioner of an equivalent level of training or expertise. The HCCC also asserts the practitioner engaged in unethical conduct, contravened regulations concerning the keeping of medical records, and improperly charged for mental health consultations when consultations were not for that purpose. The conduct principally occurred during a period the practitioner engaged in solo medical practice as a general practitioner in a south west suburb of Sydney.
The conduct engaged in by the practitioner is asserted by the HCCC to be of such a serious nature as to constitute professional misconduct as defined in the Health Practitioner Regulation National Law (NSW) (the National Law).
The HCCC further asserts that the practitioner suffers an impairment and additionally asserts she is not competent to practise. The HCCC seeks orders that the practitioner's registration is cancelled and that she pays its costs.
In broad terms the particulars of the complaint are that the practitioner engaged in inappropriate relationships with three patients, including two inappropriate sexual relations, inappropriately prescribed for and treated a number of patients and employed several patients in her solo general practice. It is also asserted she failed to keep appropriate medical records, and charged for mental health consultations without a proper basis for doing so. The complaint asserts the practitioner is impaired suffering Bipolar disorder, chronic fatigue syndrome and features "strongly suggestive of significant personality vulnerabilities".

Procedural history and rulings and Further Amended Statement of Claim

Procedural directions

These proceedings commenced in the Tribunal on 13 April 2016. Directions were made for the filing of documents and the matter was listed for hearing on 27 March 2017. The matter was listed for a Case Conference on 22 March 2017. On that date the presiding judicial officer was informed that the psychiatrist, Dr Ralf Ilchef (Dr Ilchef), appointed by the Medical Council, and on whom the HCCC rely in support of the assertion the practitioner is not competent to practise, was not available to give evidence as he was travelling in Europe. The presiding judicial officer requested counsel representing the HCCC, Mr A Britt (Mr Britt), and those instructing him to endeavour to see if Dr Ilchef could give evidence by telephone during the five days listed for hearing.
At the commencement of the hearing, the practitioner's counsel, Ms Burke, advised that, as presently instructed, she did not wish to cross-examine Dr Ilchef, but she reserved her right to do so. We were able to take Dr Ilchef's evidence by telephone and he was briefly cross examined by Ms Burke, and answered questions posed by the panel.

The Further Amended Complaint and Further Amended Reply

A number of documents were provided to us at the commencement of the hearing. The HCCC sought, without objection, leave to file a Further Amended Complaint. The practitioner sought and was granted leave to file a Further Amended Reply.
As a consequence of the filing of the Further Amended Complaint (in which a number of particulars in the earlier complaint were not pressed) and the Further Amended Reply several witness statements were withdrawn by the HCCC, again without objection from the practitioner.

Admissibility of the statement by the Manager, Investigations, Health Care Complaints Commission

The parties remained in dispute about whether we should admit a statement prepared by the Manager, Investigations, Health Care Complaints Commission, Ms Lovaine Ann Inman (Ms Inman) dated 26 August 2014.
Mr Britt, counsel for the HCCC, submitted that, notwithstanding the practitioner had conceded all complaints and the particulars of those complaints, except the complaint that she is not fit to practise medicine, the statement was relevant to her honesty and insight. He pressed for the statement to be admitted into evidence.
By contrast, Ms Burke referred us to s 135, s 138 and s 139 of the Evidence Act 1995 (NSW). In summary, she submitted that we should not admit the statement because the practitioner was not given any proper warning by Ms Inman before answering questions. She submitted that the statement makes it clear that a Notice under 34A (1) (b) of the Health Care Complaints Act 1993 (NSW) and a letter setting out details of two complaints were only handed to the practitioner when the investigating officers attended her practice. Ms Burke further submitted that the statement discloses that the practitioner had not had the opportunity to properly read the letter before she was asked and responded to questions from Ms Inman. Ms Burke also submitted that the questioning commenced before the practitioner received any warning she should or might wish to obtain advice before answering any questions.
We determined to reject the admission of the statement and to provide our reasons for doing so in these reasons.
Schedule 5D cl 2 of the National Law provides as follows: 2 Proceedings generally [NSW] In proceedings before it, a Committee or the Tribunal is not bound to observe the rules of law governing the admission of evidence, but may inform itself of any matter in the way it thinks fit.
Schedule 5 of the National Law is headed "Investigators". We were not referred to this Schedule by either party or to its relevance in NSW, a co-regulatory jurisdiction. We therefore refer to it only briefly.
Section 34A of the Health Care Complaints Act 1993 is found in Division 5 of that Act. The Note to the Division explains that "The bulk of Commission investigations under this Division will deal with matters arising under the [National Law] relating to health practitioners".
Section 34A of the Health Care Complaints Act sets out the powers of the HCCC to obtain information. It is a pre-requisite of the section that a practitioner be afforded "such time as is reasonable" to respond to a notice (s 34A (1) (a)).
Section 21A of the Health Care Complaints Act requires the HCCC, if assessing a complaint and seeking information, to give the person requested to provide information "reasonable time" to give information, to produce documents or to appear before the Commissioner or her member of staff.
Section 37A of the Health Care Complaints Act deals with the consequences flowing from a notice or questioning of a practitioner, or being required to provide further information under s 21A or 34A.
Section 37A provides as follows: Self-incrimination not an excuse (1) A person is not excused from a requirement under section 21A or 34A to give information, to answer a question or to produce a document on the ground that the information, answer or document might incriminate the person or make the person liable to a penalty. (2) Information or answer not admissible if objection made However, any information or answer given by a natural person in compliance with a requirement under section 21A or 34A is not admissible in evidence against the person in any civil or criminal proceedings (except disciplinary proceedings or proceedings for an offence under this Part) if: (a) the person objected at the time to doing so on the ground that it might incriminate the person, or (b) the person was not warned on that occasion that the person may object to giving the information or answer on the ground that it might incriminate the person. (3) Documents admissible Any document produced by a person in compliance with a requirement under section 21A or 34A is not inadmissible in evidence against the person in any proceedings on the ground that the document might incriminate the person. (4) Further information Further information obtained as a result of a document produced or information or answer given in compliance with a requirement under section 21A or 34A is not inadmissible in any proceedings on the ground: (a) that the document, information or answer had to be produced or given, or (b) that the document, information or answer might incriminate the person. (5) The Commission, the Commissioner or a member of staff of the Commission cannot be required (whether by subpoena or any other procedure) to produce, in connection with any proceedings, a document that contains any information or answer that has been obtained as a result of a requirement under section 21A or 34A if the information or answer is not admissible in evidence in those proceedings because of this section.
Section 37A is not drafted in identical terms to Schedule 5 cl 2(3) of the National Law. Section 37A (1) provides, as a primary position, that a person is not excused from a requirement under s 21A or s 34A to give information or answer a question on the basis that a document or answer may incriminate them. However, s 37A (1) is subject to s 37A (2) which provides information given is not admissible in evidence in any civil or criminal proceedings (except disciplinary proceedings) if a natural person objects to answering the question if the answers might incriminate the person, or the person was not warned on that occasion the answer may incriminate the person.
We did not have the benefit of the letter provided to the practitioner at the time of Ms Inman's attendance at her practice on 14 August 2014. The practitioner was not investigated using the powers and procedure set out in s 21A of the Health Care Complaints Act.
It appears to us, as presently advised, there is apparently some overlap between the provisions of s 37A of the Health Care Complaints Act and Schedule 5 of the National Law. But the questioning of the practitioner did not occur in accordance with the procedure outline in Schedule 5.
Further, the Tribunal, unless there is a specified power or powers in the enabling legislation (in this case the National Law), adopts the practice and procedure provisions set out in Part 4 of the Civil and Administrative Tribunal Act 2013 (NSW) (the CAT Act). Section 38 (3) (b) provides that s 128 of the Evidence Act 1995 (NSW) is taken to apply in the Tribunal even when the Tribunal is not required to apply the rules of evidence in those proceedings.
We discern that while the Evidence Act does not generally apply in proceedings in the Tribunal when dealing with professional misconduct of a health practitioner (as compared with proceedings under the Legal Profession Uniform Law 2014 (NSW) (see Schedule 5 of the CAT Act)) its application is not precluded. Provisions of the Evidence Act are relevant to inform the Tribunal of relevant factors to be taken into account in determining admissibility. Further, we have taken into consideration and give weight to principles of procedural fairness and natural justice in a Tribunal setting.
Here Ms Inman's statement makes it clear that before the attendance at the practitioner's rooms of Ms Inman and her colleague Ms McKaysmith the practitioner had no notice of the contents of the Notice or the letter referring to two complaints. The practitioner was reading the documents "on the run" while she printed patient records from her computer. At [16] of Ms Inman's statement she records that while the first patient's records were printing she commenced questioning the practitioner. It was after Ms Inman's first questioning of the practitioner about her general practitioner that Ms Inman notes she suggested that the practitioner "should take the time to go through the complaints and obtain advice before saying anything else".
We pause to note that even if the Notice itself did comply with the requirements of s 34A by requiring that information be given and documents to be produced "in such time as is reasonable", that was not what happened in practice.
From the chronology set out in Ms Inman's statement it is clear that although the practitioner was advised of her right to obtain advice after the questioning commenced that advice occurred in circumstances where the practitioner was distracted printing off medical records during the interview process.
In considering whether to admit this statement we focussed on three key issues. First, was the statement necessary to prove the particulars in the complaint? As these particulars (except fitness to practise) have all been admitted by the practitioner in her Further Amended Reply and the Statement of Agreed Facts we are satisfied the statement has no probative value on the question of liability. Secondly, did the statement provide relevant evidence going to the practitioner's insight and honestly? This was the basis on which Mr Britt submitted the statement should be admitted. We accepted, if relevant and admissible, the statement might require consideration when determining appropriate protective orders. We were satisfied, at best, the statement was of marginal relevance to the issue of the practitioner's honesty, and that there was other material probative of this issue. Of greater weight and relevance were the practitioner's recorded statements at the s 150 proceeding on 17 September 2014 and to Dr Ilchef when he interviewed the practitioner on 17 February 2015. Thirdly, were the circumstances in which the practitioner made admissions contrary to procedural fairness and the rules of natural justice? The practitioner was questioned about whether or not she had a general practitioner and provided answers before any warning was given to her. Although a warning was given to the practitioner, after initial questioning, it was given while the practitioner was distracted printing off computerised patient records and prior to being afforded time to read the Notice, and to digest the nature of the two complaints set out in the HCCC letter.
There is no doubt that answers given by the practitioner and recorded in Ms Inman's statement if properly obtained in accordance with s 34A of the Health Care Complaints Act could be used in disciplinary proceedings. However, we found the procedure adopted in this instance by the HCCC's officers was procedurally unfair to the practitioner.
In summary, we found the statement lacked any significant relevance to the issues on which it was sought to be adduced, and that there was other probative evidence before us on the identified issues. We were also satisfied the circumstances in which admissions recorded as having been made by the practitioner were procedural unfair and the statement was not admissible having regard to the non-compliance with s 37A (2) (b).

Issues in Dispute

The principal issue in dispute in these proceedings is whether the practitioner is presently competent to practise medicine. That and other relevant issues are encompassed in the following questions: 1. Does the practitioner demonstrate sufficient insight into her admitted conduct so that in the future she will practise safely? This issue requires consideration of the practitioner's present stated belief and position that all her conduct at the relevant time was attributable to her bipolar condition during the period of the complaints. 2. If the practitioner's present belief or position is not supported by the expert evidence, and involves an element of dishonesty, does a finding adverse to the practitioner on this issue require cancellation of her registration? 3. If the practitioner's present position is not honest and/or honestly held, should her registration be cancelled both as an example to other practitioners and to uphold the standards of the profession? If her belief is an honest but misguided belief would the issue of a reprimand or suspension of her registration be appropriate to protect the public, act as a deterrent and uphold the standards of the profession? We pause to note that Mr Britt on behalf of the HCCC submitted that it is not asserted by the HCCC that the practitioner's present statements are deliberately dishonest, but rather are a demonstration of her present rationale for past behaviour and are misguided or lacking in reality. Mr Britt describes the practitioner's current position as an "ex post facto reconstruction". 4. Does the practitioner's diagnosis, which is likely to involve relapses, present a risk to patients in the future? 5. Are the practitioner's current skills and level of knowledge adequate to ensure she prescribes and treats patients adequately? 6. Can conditions to be reviewed by the Medical Council be crafted to ensure the practitioner can safely practise for the foreseeable future?

Background

The practitioner graduated with a Bachelor of Science (Biotech) Bachelor of Laws from Macquarie University in 1996. She obtained her MB.BS from the University of Sydney in 2001.
The practitioner completed an internship at Nepean Hospital in 2002 and was first registered as a medical practitioner with general registration in 2003. She worked on a casual basis for several months in 2003.
The practitioner did not practise between 2003 and 2006 and she assisted her husband in his business. In 2005 she moved to non practising registration..
The practitioner was re-registered in February 2006 and in 2007 accepted a position at the Advanced Medical Institute, an erectile dysfunction centre.
In 2007 the practitioner was diagnosed with Bipolar II Disorder, and in 2008 with Chronic Fatigue Syndrome.
In 2009 the practitioner applied for and was accepted into the Special Approved Placement Program, and commenced working in general practice at Forestville. On resuming practice she entered the General Practice Experience (Practice Eligible) pathway (the pathway) leading to fellowship of the Royal Australasian College of General Practitioners. The practitioner has not completed the pathway, or the requisite examination to obtain her accreditation, although she states this remains her goal
In 2011 the practitioner moved to a general practice in Carlton, and in 2012 took up employment 3 days per week in general practice at Revesby.
From February 2013 to September 2014 the practitioner owned and operated her solo practice.
Following imposition of conditions on the practitioner's registration, and with Medical Council approved, in October 2014 the practitioner worked on a part-time basis as an employed general practitioner. She ceased this position in June 2015 for health reasons.
In November 2015 the Medical Council imposed a condition that the practitioner was not practise medicine until a further review by the Medical Council. That condition was removed on 26 August 2016 but conditions were imposed on the practitioner's registration limited her hours of practice and providing for supervision.
In February 2017 the practitioner commenced practising in her current position as an employed general practitioner twice per week to a maximum of four hours per session under supervision.

The legislation

The HCCC brings this complaint under s 138 (1) (a) (b) and (l) of the National Law being assertions that the practitioner's conduct constituted unsatisfactory professional conduct. The relevant sections provide: (1) "Unsatisfactory professional conduct" of a registered health practitioner includes each of the following-- (a) 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. (b) 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. … (l) Any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession.
The HCCC also rely on s 139E of the National Law asserting the practitioner is guilty of professional misconduct. Professional misconduct is defined in s 139E as follows: 139E Meaning of "professional misconduct" [NSW] 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.
It is asserted that the practitioner is impaired. Impairment is defined in s 5 of the National Law insofar a registered health practitioner is concerned as follows: "impairment", in relation to a person, means the person has a physical or mental impairment, disability, condition or disorder (including substance abuse or dependence) that detrimentally affects or is likely to detrimentally affect-- (a) for a registered health practitioner or an applicant for registration in a health profession, the person's capacity to practise the profession; or …
Finally, the HCCC assert the practitioner is not competent within the meaning of s 139 (a) of the National Law to practise medicine. Section 139 (a) provides as follows: A person is "competent" to practise a health profession only if the person-- 1. has sufficient physical capacity, mental capacity, knowledge and skill to practise the profession;

Relevant Principles

Section 3 of the National Law sets out the objectives and guiding principles of the law, as those objectives and principles apply to the national registration scheme. Section 3A of the National Law, in force at the date of the hearing, sets out the objective and guiding principle to be applied by a Tribunal in New South Wales conducting an inquiry into a complaint and, if appropriate to do so, when making protective orders. The relevant parts of s 3, for the purposes of this hearing, are as follows: (2) The objectives of the national registration and accreditation scheme are-- (a) 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; and … (e) to facilitate access to services provided by health practitioners in accordance with the public interest; and … (3) The guiding principles of the national registration and accreditation scheme are as follows-- (a) the scheme is to operate in a transparent, accountable, efficient, effective and fair way; … (c) restrictions on the practice of a health profession are to be imposed under the scheme only if it is necessary to ensure health services are provided safely and are of an appropriate quality.
Section 3A, which has particular relevance in the circumstances of this matter, provides as follows: In the exercise of functions under a NSW provision, the protection of the health and safety of the public must be the paramount consideration.
It is relevant at this point that the Tribunal records that protective orders made at the end of a hearing are not intended to punish the practitioner, but to protect the public (see Clyne v NSW Bar Association (1960) 104 CLR 186).

The onus or burden of proof

The onus or burden of proof is that of the HCCC. It is well established, due to the protective nature of the jurisdiction, and the seriousness of the complaints, if established, both for the practitioner and the public, that the standard of proof is on the balance of probabilities, but to the level of satisfaction described by the High Court in Briginshaw v Briginshaw (1938) 60 CLR 336.

The conceded complaints and particulars

As Mr Britt submitted to us, it is easy to gloss over the very serious conduct in which the practitioner engaged during her period of solo practice when the particulars of the complaint are admitted (except fitness to practise) because it is unnecessary to engage in detailed examination of the evidence, or for the evidence to be tested by cross-examination.
There is much merit in this submission. The practitioner's admitted conduct is particularly serious.
The practitioner has conceded that her treatment of Patient A, a mental health patient, between April 2013 and January 2014, was below the expected standard. The practitioner altered the patient's diagnosis without proper and sufficient clinical reasons. She prescribed a cocktail of psychoactive medications for this patient. She also engaged in personal communication via text messaging and telephone, engaged in a sexual relationship with the patient, and continued to treat this patient after she formed a close personal relationship with her. She also engaged in excessive (103) consultations with Patient A including 21 consultations in May 2013 which she bulk billed to Medicare. The practitioner concedes that the number and frequency of the consultations were likely to lead to Patient A becoming emotionally dependent on her.
The practitioner has conceded her prescribing practices in respect of Patient B, which occurred over a prolonged period, were outside recognised clinical guidelines. Between October 2012 and November 2013 the practitioner prescribed excessive quantities of Diazepam for Patient B. This prescribing was not in accordance with therapeutic standards and contrary to the provisions of cl 34 of the Poisons and Therapeutic Goods Regulation 2008 (PTGR 2008).
Between February 2013 and 21 November 2013 the practitioner prescribed, contrary to the PTGR 2008, Oxycodone, a drug of addiction for Patient B. The practitioner has conceded she prescribed this drug without exercising responsible clinical judgment and in circumstances where the drug was contra-indicated due to the patient's history of inflammatory bowel disease and of previous gastro-intestinal surgery with complications.
The practitioner acknowledges that her prescribing of Oxycodone for this patient between April 2012 and November 2013 occurred in circumstances where she had either formed the opinion, or ought to have informed the opinion, that Patient B was a drug dependent person (as described in the Poisons & Therapeutic Goods Act 1966 (NSW).
The practitioner engaged in a sexual relationship with Patient C from September 2013 to August 2014. Between February 2013 and March 2014 the practitioner prescribed Ketamine other than in accordance with therapeutic standards for this patient. Overlapping in part to that prescribing, the practitioner also prescribed Stilnox other than in accordance with therapeutic standards and for an excessive period. She engaged in similar conduct in prescribing Zopiclone (a Schedule 4 restricted substance), Panadeine Forte, Tramadol, Diazepam, Endone, Xanax, Duromine, Epilim, Oxycontin, Rivotril, Codeine Linctus and Targin for the patient.
Further, between July 2013 and May 2014, the practitioner prescribed Endep for Patient C without sufficient clinical indications to do so, and without proper and sufficient monitoring of the patient's response to the medication. During approximately the same period, she prescribed an anti-epileptic drug, Pregabalin (Lyrica) without clinical indications and with potential for adverse side effects given her other prescribing for the patient.
Patient D and the practitioner had been friends for a number of years. Notwithstanding this fact, the practitioner employed Patient D to work at her solo medical practice. During Patient D's employment the practitioner inappropriately continued to treat Patient D contrary to Section 3.14 of Good Medical Practice, the Code of Conduct for Doctors in Australia (the Code). The practitioner prescribed lithium carbonate at a sub-therapeutic dose and failed to adequately monitor and respond to the patient's lithium carbonate levels.
As with Patient D, the practitioner employed Patient E to work in the practice in July 2013 and for approximately 10 months thereafter continued to treat Patient E contrary to the Code.
Patient F suffered a mental health condition. The practitioner failed to maintain appropriate boundaries with this patient inviting the patient to her home for dinner, questioning her about her sexual orientation and sexual history. The practitioner disclosed information of a personal and intimate nature about herself to Patient F, including information about her sexual orientation. She engaged in text messaging with the patient of a social and personal nature.
Patient G also suffered mental health problems. The practitioner inappropriately prescribed for this patient, including commencing her on Lithium Carbonate without proper clinical indication. The practitioner failed to monitor the patient's blood levels. She also inappropriately prescribed Aripiprazole, Quetiapine, other psychoactive medications without consultation, assistance or approval from a specialist psychiatrist.
Patient G was another patient with whom the practitioner engaged in boundary violations: she invited and permitted Patient G to stay in her home for approximately six months, with the patient staying overnight, and sharing her bed with her. The practitioner also permitted Patient G to stay in a flat above the practice free of charge. She employed Patient G in the practice contrary to the Code.
The practitioner saw Patient G between April 2013 and November 2013 on 103 occasions including on 21 occasions in May of that year. The practitioner was unable to explain the identical number of consultations with this patient and Patient A, particularly why she also saw this patient on 21 occasions in May 2013 on the same days as she saw Patient A.
Patient H is a patient for whom the practitioner prescribed anabolic steroids (Testosterone enanthate and Trembolone ethanate) in a quantity and for a purpose that is not in accordance with cl 34 of the PTGR 2008 and without exercising clinical judgment or first obtaining a blood test to ascertain the patient's testosterone levels. She also prescribed a number of drugs of addiction for this patient including MS Contin, and Oxycodone. These drugs too were prescribed contrary to the relevant PTGR, for an excessive period, and without exercising appropriate clinical judgment.
On 3 May 2013 the practitioner inappropriately prescribed Mersyndol Forte and Zofran, both restricted substances, to enable Patient H to cease Oxycodone abruptly. Other prescribing of drugs of addiction for this patient occurred on a number of occasions and without a professional consultation. The practitioner's prescribing continued in the period March 2013 to August 2014 where the practitioner formed the opinion that Patient H was a drug dependent person.
The practitioner also failed to maintain boundaries with this patient, sending him text messages, developing a close friendship with him whilst a patient contrary to the Code.
The practitioner's prescribing for Patient J was centred principally on her inappropriate prescribing of Pethidine. As with other patients named in the complaint, this patient was treated by the practitioner whilst she was an employee of the practice.
The practitioner prescribed a Buprenorphine patch of 10 micrograms per hour contrary to the initial recommended dose of 5 micrograms per hour for Patient J. She also inappropriately prescribed Buprenorphine, Oxycodone and Epilim PC for this patient.
The particulars asserted in relation to Patient K are that he suffered mental health problems. He was treated by the practitioner for approximately 8 months in 2013. The practitioner purported to treat this patient without taking a comprehensive history or administering any standard diagnostic tests, or preparing a mental health plan. She diagnosed Patient K with schizophrenia, failed to conduct regular mental health examinations or to record his physical symptoms. The practitioner did not seek specialist assistance in her treatment of the patient, and inappropriately prescribed psychoactive medications (Lorazepam and Serenace, Aripiprazole, Escitalopram).
Patient L consulted the practitioner for her alcohol dependence over the period April 2013 to June 2014. The practitioner failed to complete an adequate history or physical examination of the patient. She also inappropriately prescribed Diazepam, and psychoactive medications (Escitalopram, Quetiapine Aripiprazole and Serenace) and diagnosed, or purported to diagnose the patient as suffering depression and a bi polar condition without administering any standard diagnostic tests.
The practitioner also prescribed for a close family member and herself contrary to the Code.
Other particulars of unsatisfactory professional conduct are the practitioner's failure to keep proper records, and improper charging on three occasions for mental health plans for Patient C, and on a number of occasions for Patient K.
The practitioner's position is that, while she acknowledges her inappropriate conduct including the sexual relationships and other close relationships with patients, her gross inappropriate prescribing and woeful record keeping, she attributes all of her behaviour to her Bi-polar diagnosis. She says her manic or hypomanic state endured throughout the whole of the period of the complaint. The practitioner's position is best summed up by answers she gave to the panel during her oral testimony she said: A. I won't defend that person, I don't agree with her anymore, so I won't defend it, I don't believe I was helping, but I know at the time I thought I was doing right by my patients and that I was ultimately the only one that could care for them. [transcript 30 March 2017 p 5]
Later the practitioner said: A. I couldn't say. I truly couldn't say. I don't know what I was thinking. I wish - I can't defend that person. I'm not that person any more, I can't defend that person, I don't know what she was thinking. [transcript 30 March 2017 p 43]
In her statement dated 2 September 2016 the practitioner explained at [43] when she commenced solo practice with the benefit of hindsight she recognised that she was already in a heightened emotional state and that this heightened emotional state quickly "escalated into a hypomanic episode" [44].
At [45] and [46] she said: As my patient base continued to grow my hypomania gave me a delusion of invincibility and the false impression I could never make a mistake. In retrospect I can see that these delusions intensified as I was working on my own. I did not seek advice from my treating practitioners as my high convinced me that everything was good and I was unable to recognise my limitations. I had an exuberant confidence and great sense of optimism. ….My hypomanic state allowed me to convince myself that my patients really needed me and that no other doctor could help them in the same way that I could. I felt it was my duty to help a patient in a way I could and I believed I could never harm a patient as my intentions were good. I was filled with incredible self-belief and exuberance.
We will return to discuss the practitioner's evidence when we turn to the issues we posed as requiring resolution at the commencement of these reasons. Suffice it to note at this point, the conduct pleaded in the complaint involves transgressions of the most serious kind. The practitioner's actions in engaging in both heterosexual and homosexual relationships with patients, inappropriate close personal relationships with mentally ill patients while all of those patients were being treated by the practitioner was damaging to them. The relationships were further complicated when the patients were financially dependent on the practitioner as employees of her solo practice.
The practitioner's prescribing, which endured in most cases over months and involved access to drugs of addiction by drug seeking and vulnerable patients can only be described as reckless in the extreme. The practitioner's identical 103 consultations with Patient A and Patient G on the same days left us with significant doubt as to the circumstances of these consultations.

The expert evidence

It is unnecessary that we repeat in detail all the medical experts' evidence. We note at this point we heard from and had the opportunity to ask questions of the practitioner's treating doctor of some seven years duration, Dr Marianne Coffey (Dr Coffey) and from her current treating specialist, Dr Kathryn Watson (Dr Watson). We also had a report and heard oral evidence from Dr Murray Wright, (Dr Wright) psychiatrist. The practitioner consulted Dr Wright for advice almost exclusively in respect of boundary violations. Dr Wright was retained by the practitioner's lawyers to provide a report for these proceedings.
Dr Ilchef, the Medical Council appointed psychiatrist, provided six reports relied on by the HCCC and gave brief but comprehensive evidence to us by telephone.
Dr Andrew Patterson (Dr Patterson), a highly experienced general practitioner was retained by the HCCC. He provided two reports and gave brief oral evidence before us. Dr Patterson's evidence was substantially unchallenged.
The material supplied by the HCCC to Dr Patterson which underpins his report did not address to any significant or substantial degree the practitioner's mental health diagnosis, and the impact of that diagnosis on her behaviour during the relevant period.
Dr Patterson found the practitioner's conduct in respect of her sexual relationship with Patient A and her failure once the relationship was established to transfer this patient to another practitioner to attract his serious criticism. He also found the practitioner's prescribing for this patient significantly below the standard to be expected and that her conduct attracted his serious criticism.
Similarly, Dr Patterson was strongly critical of the practitioner's conduct in respect of her relationship with Patient A, including her text communications with the patient, her record keeping, and the frequency of consultations.
The practitioner's conduct in failing to cease prescribing for Patient C, a drug seeking patient, also attracted Dr Patterson's strong criticism as did her action in employing him in the practice. Dr Patterson noted the inadequacies of the practitioner's record keeping in respect of this patient.
Dr Patterson next addressed the practitioner conduct in respect of Patient J. He found her record keeping in respect of this patient to be "of a consistently poor standard". He was also critical of the practitioner's conduct in treating the patient while she was an employee of the practice.
Dr Patterson was also critical of aspects of the practitioner's conduct involving Patient H, a sub-tenant of the practice. He was strongly critical of the practitioner's prescribing of testosterone enanthate and trenbolone enanthate and other drugs including Oxycontin, and MS Contin for this patient. He was strongly critical of the practitioner's text messaging to the patient of a personal nature and providing scripts without consultations. As with other patients, Dr Patterson found the practitioner's record keeping for this patient to be inadequate.
Dr Patterson records his criticism of the practitioner in providing accommodation for Patient G and in sharing a bed with her. He is also strongly critical of the frequency of the practitioner's consultations with this patient, her inappropriate telephone communication with her, and acting as her doctor after developing a close personal relationship and employing Patient G in the practice.
In his report Dr Patterson next comments on the practitioner's conduct in respect of Patient B. He is, unsurprisingly critical of the practitioner's prescribing for this patient contrary to her history of inflammatory bowel disease.
Dr Patterson was very critical of the practitioner's management of Patient K, a mentally ill patient. He was similarly critical of the practitioner's management and prescribing for Patient L, a patient trying to reduce her alcohol intake.
Dr Patterson also found the practitioner's conduct in engaging in a personal relationship with Patient F including inviting the patient to her home, and asking questions about her personal life and sexual orientation to fall significantly below the standard expected of a practitioner of an equivalent level of training and expertise of the practitioner and invited his strong criticism.
Generally, Dr Patterson expressed his condemnation of the practitioner's self-prescribing, and breaches of the Code in treating family members and employees.
We found Dr Patterson's opinions of the practitioner's treatment of her patients, her breaches of the Code, and her poor record keeping to be soundly based. However, this finding is subject to our conclusions about the effect of the practitioner's bi-polar disorder, which we discuss below.

Discussion and conclusions professional misconduct

We turn now to the issues requiring resolution we posed at the commencement of these reasons.

Does the practitioner demonstrate sufficient insight into her admitted conduct so that going forward she will practise safely? This issue requires consideration of the practitioner's stated belief and position that all her conduct at the relevant time was attributable to her bipolar condition during the period of the complaints.

The practitioner's position is unambiguous. She attributes all of her aberrant behaviour to her manic or hypomanic condition from February 2013 up to and including her admission for ECT in 2015.
The objective evidence before us comprises Dr Coffey's clinical records, the practitioner's demeanour and statements at the first s 150 hearing and made to Dr Ilchef on 17 February 2015. We also consider the evidence of her present treating psychiatrist, and the opinions expressed by Dr Wright and Dr Ilchef.
Dr Coffey was the practitioner's treating doctor from 2007 to 2014. Her therapeutic relationship with the practitioner ceased in January 2014. Thereafter, the practitioner consulted another psychiatrist, underwent ECT therapy, and in December 2015, commenced seeing Dr Watson who remains her treating doctor.
Dr Coffey holds general registration in NSW. She is employed as a career medical officer in psychiatry at Bankstown Mental Health Services. On 19 September 2016 she provided a "brief synopos" of her treatment of the practitioner. She record the practitioner's "predominant clinical presentations were;" 1. Depressive episodes 2. Subsyndromal depressive symptoms 3. Mixed affective symptoms 4. Brief episodes of hypomania.
In reporting on the nature of her relationship with the practitioner in the relevant period Dr Coffey explained: Under stress of work in the responsibility for a solo practice overloaded with staff, her limited medical experience in dealing with patients on a day to day basis led to the emergence of (upward arrow - heightened sensitivity to rejection and (upward arrow) to idealization and devaluation plus impulsivity. Our therapeutic relationship also suffered from this when I urged caution with money, staff, taking on too much and declined to move to her adjacent development. I discussed a change to either Dr M Rees. Dr Tom Luu and Dr [indecipherable] in June prior to my leave.
Dr Coffey also noted that her leave periods "in May, July to September interfered with the transfer of care". She confirmed in her oral evidence that she had referred the practitioner to Dr Luu on 15 September 2014, but the practitioner had seen "somebody other than Dr Luu".
Dr Coffey's notes and oral evidence were strongly relied on by the HCCC to discredit the practitioner's medical explanation for her conduct during the relevant period.
In her oral evidence, Dr Coffey agreed that during the period February 2013 to January 2014 that "[the practitioner] was struggling with bipolar disorder to the extent whereby she had ups and downs" (transcript 29 March 2017 page 13).
Although Dr Coffey recorded on 26 September 2013 that she had reviewed the practitioner and noted "reviewed early warning of hypomania" that this was not how the practitioner was presenting at the time. Rather, she explained her notes reflected "a wellness plan to review with her what would be the signs, the imminent signs of becoming hypomanic" (transcript 29 March 2017 p 14).
Dr Coffey also explained that when she saw the practitioner on 26 September 2013 she was satisfied that the practitioner was not hypomanic on that day but said she suspected there was hypomania prior to the particular visit.
In answering questions posed to her by Dr Giuffrida, Dr Coffey agreed because the practitioner was very well engaged with her that she would have expected she would have disclosed a range of boundary crossing or blurring violations but she had not done so.
The following exchange occurred between Dr Giuffrida and Dr Coffey: Q. Doctor, can I ask you this. In the period that we're talking about, and it's about, I think it's about a 20 month period, from 17 January '12 to the last date, 15 September '14, reading the transcribed notes, you make numerous references to what appear to be switches in mood-- A. Mm. Q. Periods of depression with suicidality, and other periods of elevation of mood, and it seemed that you made a conclusion in the end that there were periods where Dr Wong was frankly hypomanic. Is that-- A. Hypomanic? Q. Yes. A. Yes. Q. Would that describe what you were observing and reporting in that period? A. There is something different about that period, in that compared with the earlier years, I saw less of her in that period. Q. The earlier years being what, from-- A. From 2007 onwards, I saw her far more frequently, and I saw her less frequently at this time, because she said she was going well and didn't, you know, didn't feel the need to see me. Q. So this is in the transcribed period? A. No it isn't. This would be - if I could describe my practice a little bit, that helps. Q. Yes, thank you. A. Because I work in community health, and with, you know, the case management approach, I tend to take that into my private practice, and so I remain in fairly close contact, either through text message, phones or email, with my patients, so I would - in earlier notes you might see a reference to say that, you know, I phoned her daily, or text messaged to see how she was going, those kinds of things. But that wouldn't be recorded in the notes. Q. So there were more frequent interactions than are recorded in the records in that period? A. Yes. Yes.
In subsequent questioning by Dr Giuffrida, Dr Coffey said: Q. What were you worried about in particular? A. Well, I felt that she had a rather complex presentation. She had bipolar, at first I thought of Bipolar II, Bipolar I, fairly rapid cycling-- Q. Sorry, just on that point, just so everyone is clear, and the tribunal may not, so the distinction between Bipolar I and Bipolar II is? A. Well, Bipolar I has more clearly defined manic episodes with more functional impairment. Bipolar II is characterised by more severe depressive, prolonged depressive episodes, subsyndromal or subclinical depression, which can be quite debilitating, and generally a poor, you know, poor return to full function between episodes. Q. And also with Bipolar II, they don't have frankly manic, but-- A. No, but more-- Q. But they have at least one single hypomanic episode. A. Hypomanic, yes. Q. So, with Dr Wong, did you observe and report then several intermittent periods of hypomania-- A. Yes. Q. --in the period in question that we're talking about. So this is the-- A. Well, I can see one right in front of me in 2012. Q. Yes. A. Which, you know, she was quite well in January, then in February she was hypomanic, and then by April she was well again. Q. So, just on that point, so you thought that she was then well in the sense that she was, her mood was normal, euthymic? A. Yes, settled, manageable - or, sorry - you know, managing work, her concentration was good, so cognitively things seemed to be, yeah, seemed to be back on track. Q. She wasn't obviously hypomanic during that particular time. A. No. Not at that particular time. Q. And then later in that period, you again found that she became hypomanic A. Yes. Q. If I can take you to the latter part of the year, by September you said clinically accelerated and irritable. A. That's right, yep. And when she was-- Q. On 26 September - well, no, you're still on 10 September, you say "? unrealistic plans". A. Mm. Q. On 27 September, that she was overloaded, overwhelmed, impulsive decision making. Were these features of hypomania, or-- A. Yes, I thought so. Q. So there was a recrudescence then of the condition at that time. A. Mm. Q. And you were treating her, of course, with mood stabilising medication-- A. Yes.
Dr Coffey further responded to Dr Giuffrida's questions as follows: Q. Can I raise this with you. One of the issues that has exercised the tribunal's mind is the extent to which the periods of hypomania might explain what constituted, well, the alleged boundary violations and other complaints. The question that arises really in our mind is to what extent the hypomania, or periods of hypomania, can explain this. I'm not asking you to answer that question though, but I think the pertinent question is, was Dr Wong likely to have been simply chronically hypomanic or were there just intermittent periods interspersed by one or more periods where she was in complete remission, as you seem to indicate? A. The pattern was one of fairly brief episodes of hypomania. Q. Thank you. Yes. A. So, I really can't comment. But that had been her previous pattern. Q. Just so we're clear, the pattern was of intermittent-- A. Yes. Q. --relatively brief episodes of hypomania. A. Episodes of hypomania, which were generally followed then by depression. Q. Periods of depression. A. Mm. (transcript 29 March 2017 p 22)
In response to questions from Ms Kelly, Dr Coffey opined that when the practitioner was depressed that she "certainly had insight into that" rather her concern was about what might happen when she was hypomanic.
We have discussed Dr Coffey's oral evidence in some detail because it was her observations in her clinical notes that formed, to significant degree, the foundation on which the HCCC relied to demonstrate that the practitioner was not, as she claimed, in a hypomanic or manic state throughout the whole of the relevant period.
While we give some weight to Dr Coffey's notes and to her recall of her observations of the practitioner, those observations must be balanced against the significant gaps in her professional consultations with the practitioner in 2013/2014. She saw the practitioner on 6 February 2013 when she recorded "stable mood? Moving Up". She saw the practitioner again on 4 March 2013 and on 17 March 2013. On the latter occasion she noted that the practitioner was stressed by her workload. On 27 March 2013 she noted the practitioner's mood "was still good", that she was enjoying her own practice and "remains well clinically".
Dr Coffey did not see the practitioner again until 10 September 2013. On that occasion she noted that the practitioner had "fired four people" and recorded that the practitioner was "Clinically accelerated, irritable" and noted "unrealistic plans". On 29 September 2013 Dr Coffey recorded "impulsive decision making" and "doesn't appear hypomanic - denies any symptoms - but tattoo on leg noted".
Thereafter, Dr Coffey did not see the practitioner until 8 January 2014 when the practitioner's physical appearance was recorded as "dishevelled, slump posture" with slow speech. Dr Coffey recorded the practitioner was not psychotic. Later that month, on 19 January 2014, Dr Coffey recorded the practitioner was "flat sad and tearful, fatigued, overwhelmed and uncertain re future". She went on to record the practitioner was "[t]hinking clearly".
There is a significant gap in the notes from January 2014 until September 2014. On 8 September 2014 Dr Coffey noted that the practitioner had received notification of a complaint by the HCCC which she suspected "might be malicious" because [patient's name] was "v.Threatenting when fired. Had actually rehired him because of this". On this occasion Dr Coffey referred the practitioner to Dr Tam Luu at St John of God Hospital. Her final consultation with the practitioner occurred on 15 September 2014 the same day as the practitioner attended a meeting with the Medical Council.
Prior to the period of the complaints, the practitioner saw Dr Coffey on a regular basis over a considerable number of years. Dr Coffey also maintained contact with the practitioner by phone and text messaging. Thus, we are satisfied Dr Coffey, by reason of her extensive contact with the practitioner was able to objectively assess the practitioner's moods, including periods when she was noted to by Dr Coffey to be clearly hypomanic.
When Dr Coffey was questioned by the panel about the practitioner's gross and inappropriate prescribing, Dr Coffey appeared genuinely shocked. We infer that the practitioner did not disclose her prescribing regimes, particularly for mental health patients, with Dr Coffey. We are however satisfied that at the end of her therapeutic relationship with the practitioner Dr Coffey knew that the practitioner had engaged in boundary violations with at least one patient, but not that the relationship was a sexual one.
Further, notwithstanding the gaps in consultations by the practitioner with Dr Coffey in the period March 2013 and September 2013, and again in period February 2014 to September that year, Dr Coffey's notes and her oral evidence, which we accept was truthful, disclose some occasions when the practitioner was not hypomanic or manic. This is to be clearly contrasted with Dr Coffey's notes in February 2012 when she recorded on two occasions in that month the practitioner was hypomanic.
Although significant gaps in Dr Coffey's records and treatment of the practitioner are noted, we are unable to accept as a complete explanation for the practitioner's conduct her Bi-polar disorder. The practitioner's own expert, Dr Wright, did not unequivocally attribute all of the practitioner's inappropriate conduct to periods of hypomania, although he offered more support for such an explanation than did Dr Ilchef.
At page 3 of his report dated 5 September 2016 Dr Wright noted: When I first saw her I formed the view that [the practitioner] did suffer from bipolar affective disorder, with predominately depressed mood swings, and that this had been present for much of her adult life, interspersed with brief but quite disruptive episodes of hypomania. It appeared plausible that periods of impaired judgement associated with hypomanic mood swings contributed to a series of unwise business decisions and inappropriate behaviours whilst working as a general practitioner. Some of those inappropriate behaviours included boundary transgressions as identified in the complaint and her statement, but it would appear that some of her professional practice was impaired by poor judgment at that time……..It is my opinion that these instances of poor judgment occurred because she was hypomanic at the time.
Later in his report, Dr Wright opined that the practitioner's "bipolar II disorder significantly influenced her clinical conduct". He concluded, noting the practitioner had "some level of awareness" that her conduct was "unorthodox at the least" or "inappropriate", but she continued her violations of the basis she was specially gifted. Dr Wright opined: …this is highly likely to reflect the grandiosity, impaired judgment and impulsivity of a hypomanic mood state.
We were significantly assisted by the reports and oral evidence of Dr Ilchef, the Council appointed psychiatrist. He saw the practitioner initially on 17 February 2015, and subsequently on 27 October 2015, 10 February 2016, 18 May 2016, 1 August 2016, and 17 October 2016. Dr Ilchef provided a supplementary report dated 14 March 2016.
When Dr Ilchef first saw the practitioner in February 2015 he observed "no evidence of marked mood disturbance or psychosis". He also recorded that the practitioner denied having a sexual relationship with a patient after she left her husband. Having noted the practitioner's explanation for her conduct Dr Ilchef opined "but this does not seem to me to be a sufficient explanation".
In his updated report dated 14 March 2017 Dr Ilchef said "a primary diagnosis of bipolar II disorder is established…" He went on to say "I believe that this was a primary contributor to [the practitioner's] boundary violations in regard to inappropriate prescribing, inappropriate frequency of consultations and personal and sexual boundary violations. He went on to opine: However, I also consider that there is sufficient longitudinal evidence of dramatic and impetuous behaviour, boundary transgressions, difficulties in relationships and recurrent suicidality outside periods of clear severe mood disturbance likely. For example, the admitted sexual relationship with patients lasted for three months and eleven months, and commenced when she was still seeing Dr Coffey for management of her bipolar disorder. This suggests that these relationships were not disclosed to her doctor. It is extremely unlikely that an episode of severe hypomanic mood disturbance would last this long, and the fact that the relationships were not disclosed strongly suggests that Dr Wong had an awareness at the time that they represented a major boundary transgression.
Although Dr Ilchef did not disagree that the hypothesis advanced by Dr Wright could be possible, he maintained his position set out in his reports particularly that expressed in his last report which we have set out above.
We accept and prefer the evidence of Dr Ilchef to that of Dr Wright on the topic of the causation of or explanation for practitioner's serious boundary violations, lack of proper record keeping and inappropriate prescribing and management of her patients. First, his opinion is based, in part, of the practitioner's attendance, albeit limited in the relevant period, on Dr Coffey and her failure, until about the time of the HCCC investigation to make any disclosure of boundary violations to her long time treating specialist. Secondly, Dr Ilchef had the benefit of seeing the practitioner over an extended period in 2015/2016. His consultations enabled him to see the practitioner exhibit different moods. Significantly, he saw the practitioner in February 2015 when she was not hypomanic, but nevertheless at that time told him untruthfully that her relationship with a patient was not a sexual relationship. This conduct supports Dr Ilchef's view that during periods she was not hypomanic the practitioner was well aware of her boundary violations, and the likely consequences of those violations.
In reaching this conclusion, we have had regard to the comments of the NSW Court of Appeal (Kirby P, Mahoney and Handley JJA) in Kirumba v Walton (unreported 4 October 1990) a case also dealing with a practitioner who suffered bi-polar disorder during the period of complaints. Their Honours said: However, the Tribunal, as the body established to determine the facts, had to judge for itself the conclusion to be derived about the nature and degree of the appellant's disorder. It was entitled to do so on the basis of the written and oral evidence and its impression of the witnesses. It was entitled to take advantage of the expertise available to it in the experts appointed as members of the tribunal.
We did not find that the practitioner was deliberately dishonest in her evidence to us. Rather, we found, because of her awareness of her transgressions in the relevant period, she has, with hindsight, rationalised her behaviour by attributing all of her conduct to her bipolar disorder. This is characterised by her referring to herself during the relevant period as "that other person" and demonstrates, in some manner, her way of attempting to move forward and to distance herself from the past. We also have taken into account the practitioner's statement of poor memory since her ECT treatment in 2015.
We have sympathy for the terrible impact the practitioner's mental health has wrought on her life including her career and her personal relationships. However, her present blanket denial of any blame for her entire conduct demonstrates a degree of lack of contrition, discernment and insight.
We found Dr Watson's evidence particularly helpful on the issue of the practitioner's vulnerabilities. Dr Watson explained that she had not explored in depth with the practitioner the matters the subject of the complaint because the practitioner had been too ill for her to do so. But she was able to usefully comment on the practitioner's vulnerabilities.
In her report dated 16 December 2016 Dr Watson stated: [The practitioner] still retains some vulnerabilities in her capacity to read and interpret the dynamics of complex, interpersonal situations - such as dealing with some of the therapeutic situations she encountered in the period of the current complaints. These vulnerabilities are likely to be in relation to dealing with patients who have serious mental health issues or personality disorders. In my opinion, these issues will require ongoing supervision when working clinically and are amenable to psychotherapeutic treatment over a period of years, rather than months.
In her oral evidence Dr Watson explained: Q. And she's commenced that treatment? A. So she has engaged with a psychologist and in my treatment of her we've been working on keeping daily routine, self-care, understanding her illness better. So I guess a supportive and psycho-educational approach to psychotherapy with myself, and she's also been working with a psychologist more on mindfulness and anxiety management. Q. But as you tell us, this is a - she's taken a few steps? A. Mmm. Q. But it's a matter that's going to take years? A. I think, like - yes, I think in terms of being able to reflect on and understand her own illness, she is early in the process. Q. You tell us, "This anxiety is inhibiting Dr Wong's ability to clearly explore boundary issues." What did you mean by that? A. Boundary issues have been a key problem for Dr Wong and we have discussed it a couple of times and I'm also aware of her seeing Dr Wright. When we have discussed boundary issues in our own therapeutic relationship, she's been anxious about that and she's taken time to even be willing to discuss some of those things. So I think she's very cautious and ashamed, and taking - approaching that as she's capable, I guess.
Accepting as we do the evidence of Dr Ilchef that the practitioner's behaviour in the relevant period was primarily, but not wholly, attributable to her bi-polar disorder, we find the practitioner remains reluctant to, or incapable at this point of, acknowledging any true wrongfulness at all on her part.
We accept Dr Watson's view that the practitioner is currently still unable to acknowledge aspects of her conduct during the period of the complaint and that she is still vulnerable and lacking in some capacity to deal appropriately with many of the patients likely to be encountered in general practice. This is particularly relevant to patients with mental health issues. This cohort of patients are ones with whom the practitioner candidly acknowledged she has a special affinity. We make this finding having regard to the practitioner's history with patients suffering mental illness, and notwithstanding her evidence that she has on one occasion since her limited resumption of practice referred a teenager with complex mental health problems for specialist attention.
We also took into account and gave weight to Dr Watson's oral evidence that the practitioner's insight into her boundary issues would grow "through practise and having enough support and supervision in doing that".
We agree with Dr Watson's opinion that, if the practitioner is to have a supervisor, the supervisor should be someone who does not practise in the same practice as the practitioner.
Ultimately, however, our assessment of the practitioner's evidence led us to the conclusion that she is not currently fit to practise even with external supervisor and support. We expand our findings in this regard below.

If the practitioner's present belief or position is not supported by the expert evidence, and involves an element of dishonesty, does a finding adverse to the practitioner on this issue require cancellation of her registration?

If the practitioner's present position is not honest and/or honestly held, should her registration be cancelled both as an example to other practitioners and to uphold the standards of the profession? If her belief is an honest but misguided belief would the issue of a reprimand or suspension of her registration be appropriate to protect the public, act as a deterrent and uphold the standards of the profession.

It is convenient we address the two questions we have posed simultaneously given the overlap of the evidence on this topic.
We have already concluded that the practitioner's evidence before us was not deliberately dishonest. Rather, we accept it is too early in her treatment for the practitioner to have enough insight into her illness, to separate matters of conduct attributable to her bi-polar disorder or other personality traits, and taking present ownership for her conduct during the periods she was not unwell.
We find the discussion of impairment and professional misconduct of Basten JA in Reimers v Medical Council of NSW apposite to this matter. His Honour at [11]-[13] explained: ... it is appropriate to say something about the second element, namely the miscarriage of justice relied upon. The applicant says that if impairment were established, as the Tribunal found, he cannot be guilty of professional misconduct: written submissions, paragraph 9. That proposition, however, elides two ideas which need to be separated. The applicant must say either that conduct which results from an impairment cannot be professional misconduct, or that it is manifestly unreasonable to treat misconduct which is the result of an impairment as professional misconduct warranting deregistration. So understood, the first proposition is untenable. Gross, repeated, incompetent medical practice does not cease to be such because it is caused by an addiction to alcohol, heroin or other drugs. This was not a case where the practitioner was held to be unaware of his condition or its consequences. That he continued to practice as an anaesthetist whilst unable to exercise the necessary care, skill and judgment, could reasonably be found to constitute professional misconduct. The conclusion of the Tribunal that there was professional misconduct was, at least, unsurprising. The second proposition is also untenable. There is no doubt that addiction is a condition which may, perhaps should, evoke sympathy. The degree to which a criminal offence is caused by a mental illness, including addiction, may properly be reflected in the sentence imposed. Nevertheless, "protection of the community" is a relevant sentencing principle and may, within limits of proportionality identified by reference to the seriousness of the offence, extend rather than restrict the sentence: The Queen v Veen [No 2] [1988] HCA 14; 164 CLR 465. But the underlying purpose of a disciplinary order of deregistration is not primarily punitive, but protective. That is not to impose some artificial dichotomy of punitive and protective orders, contrary to Rich v Australian Securities and Investments Commission [2004] HCA 42; 220 CLR 129. Rather, it is to recognise the primary object of the Medical Practice Act which was "to protect the health and safety of the public by providing mechanisms designed to ensure that ... medical practitioners are fit to practise medicine": s 2A(1). Misconduct which could be classified as professional misconduct may properly lead to deregistration. In short, the applicant's submission that impairment cannot be professional misconduct is true, but only in the sense that an impairment is not conduct. An impairment may manifest itself in conduct or, to reverse the relationship, an impairment may explain particular conduct in part or in whole.
The paramount purpose of these proceedings is not to punish the practitioner, but to protect the public, to uphold the high standards of the profession and to act as a deterrent to other practitioners engaging in like conduct. This is well explained by Meagher J in Health Care Complaints Commission v Do [2014] NSWCA 307: 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.
Having found there were times in the period of the complaint that the practitioner was conscious of the wrongfulness of her conduct and that conduct harmed her patients, we are satisfied that the practitioner's concession of professional misconduct is appropriately made.
Although a finding of professional misconduct does not automatically lead to cancellation or suspension of a practitioner's registration, the practitioner's admitted conduct demonstrated a serious dereliction of her professional responsibilities and duties. She continued to treat employees, engage in sexual and other inappropriate relationships with patients, and to prescribe irresponsibly over an extended period of time. But for the conduct being primarily attributable to her bi-polar disorder we would have concluded that the conduct was so egregious that cancellation of her registration was the only proper outcome consistent with the principles enunciated in HCCC v Do.
In reaching our conclusion above, we have also had careful regard to the comments of Hope JA in Spicer v New South Wales Medical Board & ors (unreported 19 February 1981). His Honour (with whom Reynolds JA, Hutley JA and Hope JA agreed, explained: In my opinion, it is clear beyond argument that the proper handling and prescribing of drugs by medical practitioners are of the greatest importance to the community. If a medical practitioner handles or carries out that very great responsibility in a way which is reckless and which shows a disregard to the law it cannot be said that he [she] is fitted at such time to be a medical practitioner. In my opinion the view expressed by the Tribunal has implicit in it that not merely was he presently unfitted to treat those addicted or habituated to drugs but that that unfitness in itself demonstrated his present unfitness to be a medical practitioner.
Ms Burke submitted that the public could be adequately protected by conditions on the practitioner's registration, or by a period of suspension followed by the imposition of conditions. After the hearing we received detailed proposed orders from Ms Burke.
Taking into account our finding that the practitioner still has a lack of insight, preparedness or ability to acknowledge any of her actions were carried out knowingly during the relevant period, we are not satisfied that the imposition of conditions, even ones requiring supervision and strict health conditions are appropriate at this time. They are the type of conditions which may be appropriate for consideration on a re-instatement application.
We have also carefully considered whether a period of suspension would address the issue of deterrence and provide time for the practitioner to work through with her treating psychiatrist and psychologist her residual vulnerabilities. That course was urged upon us by Ms Burke on the basis that the practitioner would not have to face the costs of an application to the Tribunal for re-instatement.
We are conscious that the practitioner currently has a very limited income which would cease if her registration is suspended or cancelled. We have taken into account not only the costs of a re-instatement application, but the physical and emotional strain of such proceedings on the practitioner.
However, the choice of a period of 12 months suspension is arbitrary, and we cannot be satisfied at the conclusion of the proposed suspension period the practitioner will have successfully addressed her vulnerabilities. Those vulnerabilities could lead to further boundary violations. We accept Dr Watson's evidence that the practitioner's treatment is still at an early stage and that appropriate psychotherapy is likely to be necessary for years rather than months. Dr Watson's opinion is shared by Dr Ilchef.
Further, as we discuss below, we could not be satisfied that the practitioner's current lack of appropriate clinical skills in respect of prescribing would necessarily be adequately remedied during any period of suspension. Evidence of successful completion of a prescribing course adduced at any re-instatement application would be relevant on any re-instatement application.

Does the practitioner's diagnosis, which is likely to involve relapses, present a risk to patients in the future?

Each of the experts before us, with the exception of Dr Patterson who was not retained for his psychiatric expertise, agreed that, unfortunately, the nature of the practitioner's illness means she is likely to suffer relapses. That factor, of itself, is not sufficient in our view to require cancellation of the practitioner's registration. It may well in the future be an issue that can be appropriately managed with health conditions on the practitioner's registration.

Are the practitioner's current skills and level of knowledge adequate to ensure she prescribes and treats patients adequately?

As we earlier noted, Dr Coffey was genuinely shocked when she was informed about the practitioner's prescribing practices.
We have no hesitation in adopting in its entirety Dr Patterson's opinion about the practitioner's prescribing but that finding is subject to the caveat that much of the prescribing occurred when the practitioner was unwell.
However, what was of extreme concern to us was the practitioner's current knowledge of the indications for and correct prescribing of a number of drugs. These were essentially drugs she prescribed during the relevant period. The nature of the drugs and the indications for prescribing raised with the practitioner in her cross-examination was in respect of drugs not uncommonly prescribed in general practice.
The practitioner sought to overcome her lack of appropriate knowledge by saying she would not prescribe particular drugs, and refer a patient for specialist opinion or seek an opinion from her supervisor.
We are satisfied that while the practitioner has diligently worked on boundary issues by reading relevant publications and working with Dr Wright we found her lack of current knowledge of a significant number of drugs of considerable concern. We are conscious that the practitioner's career has been fragmented because of her illness. While her continuing professional development for the relevant triennium is up to date, we found a significant deficit in her prescribing knowledge and skills. The practitioner acknowledged while she placed substantial reliance on her ability to consult her supervisor, that she had no alternate arrangements in place if he was not available. We did not have the benefit of a report from the practitioner's supervisor.
In summary, we found the practitioner's clinical skills in the area of prescribing to be lacking. We also found the practitioner remains vulnerable to a nuanced appreciation of potential boundary violations. Each of these deficits is one which can be addressed by the practitioner with time and diligence on her part.

Can conditions to be reviewed by the Medical Council be crafted to ensure the practitioner can safely practise for the foreseeable future?

If we were satisfied that the practitioner had sufficient physical and mental capacity and knowledge to enable her to practise safely with practice and health conditions on her registration, we would have ordered that the conditions be reviewed by the Medical Council. But that is not the case at present.

Discussion and conclusions impairment and competence to practice

In this finely balanced matter we have no hesitation in accepting on the expert evidence before us that the practitioner currently suffers an impairment as defined in the National Law. We based this finding on the uncontested evidence of Dr Watson and Dr Ilchef.
We have found the evidence and opinions expressed by Dr Ilchef about the practitioner's illness and her conduct to be cogent and relevant. His evidence that the practitioner's conduct during the relevant period cannot be completely attributed to her illness is corroborated by Dr Coffey's evidence in part. His observations of the practitioner at their first interview support his expressed opinion. We note that the practitioner asserted that she was manic when she first saw Dr Ilchef in February 2015 as an explanation for her untruth about the nature of her sexual relationship with a patient. (see also transcript 30 March 2017 p 8 and 9) However, Dr Ilchef described her mood on that occasion as stable. Thus we are satisfied that the practitioner is guilty of professional misconduct, and presently lacks the ability to grasp the finer risks of boundary violation in the future notwithstanding we acknowledge she has, and is, working on this issue.
At the date of the hearing before us, the practitioner's return to work was of very limited duration. We were unable to rely on a period of practise for approximately 8 week's duration where the practitioner was seeing a limited number of patients as off-setting or overcoming our factual findings in respect of competence to practise. In this regard we note while both Dr Ilchef and Dr Watson supported the practitioner practising with ongoing supervision for a considerable period of time, neither of them was aware, as we became, of the deficit in the practitioner's prescribing knowledge and skills.
Compounding the practitioner's lack of mental capacity at the present time to practise is the deficit in her clinical skills in respect of prescribing. Accordingly, we find the practitioner presently lacks the necessary competence to practise and that her registration must be cancelled.

Should we impose a period before which the practitioner can seek a re-instatement order?

The HCCC sought that we impose a period of three years before the practitioner may apply for re-instatement under s 163A of the National Law.
As we have noted above, at the date of the hearing before us, the practitioner's return to work was of very limited duration. We were unable to rely on a period of practise for approximately 8 weeks duration where the practitioner was seeing a limited number of patients as outweighing the deficits identified our factual findings in respect of competence to practise.
We think a period of two years is a prudent one in all the circumstances. The period will enable the practitioner to work with her psychiatrist and psychologist, to hopefully stabilise her condition and adjust if indicated her significant prescribed medications of Lamotrigine 200mg bd, Nortriptyline 75mg, Amisulpride 400mg mane and 200mg nocte, Agomelatine 50mg nocte, and Lorazepam 1-2mg nocte. She will be able to build on the hard work she has thus far achieved on boundary violations.
We are also satisfied that during the next two years the practitioner can update her prescribing skills. We also take into account that the alternate orders Ms Burke sought on her client's behalf included a suspension period of one year after which conditions would be imposed on the practitioner's registration. This indicates to us that the practitioner recognises that a period of time is appropriate before she is likely to be physically and mentally ready to practise competently and safely.

Costs

There was no dispute that applying well established principles that an order should be made that the practitioner pay the HCCC's costs as agreed, and failing agreement as assessed. (see Health Care Complaints Commission v Philipiah [2013] NSWCA 342). We propose to so order.

ORDERS

The registration of Dr Teresa Wong (the practitioner) on the register of practitioners maintained by the Australian Health Practitioner Regulation Agency is cancelled.
The Registrar is requested as soon as practicable to notify the Medical Council of NSW of Order 1 of these orders.
Under s 149C (7) of the Health Practitioner Regulation National Law the practitioner is precluded from seeking a re-instatement order under s 163A for a period of two years from the date of these orders.
The practitioner shall pay the costs of the Health Care Complaints Commission as agreed and failing agreement as assessed under the Legal Profession Uniform Law Application Act 2014 (NSW). 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: 23 June 2017

Therapeutic Goods Act 1966(NSW)

At a glance

Court

Decision date

Source

Judgment (23 paragraphs)

Parties

Legislation Cited (5)

Cases Cited (7)

Cited By (1)