Health Care Complaints Commission v Wood

Background

1. The Practitioner graduated with a Bachelor of Medicine/ Bachelor of Surgery from the University of Sydney in December 1979 and was first registered as a medical practitioner in NSW in that year.
2. In 1990, the Practitioner established a general practice clinic in Narrabeen NSW with his former wife.
3. On 11 August 2022, the Medical Council of NSW suspended the Practitioner's registration. Before us, the Practitioner asserted that he did not seek to be reregistered and had formally retired from his practice on the 14 June 2024. The suspension imposed by the Medical Council was briefly lifted from 14 May to 14 June 2024 (and replaced with a condition not to practise) to allow the Practitioner to surrender his registration.

The Scope of this Hearing

1. At the commencement of the hearing, it was agreed that we would hear both stage 1 and stage 2 of the application together.
2. The Practitioner has admitted much of the lengthy amended complaint; admits unsatisfactory professional conduct and professional misconduct and admits most of the particulars.
3. The parts of the particulars that the Practitioner does not admit require us to make findings as to whether the Practitioner: 1. hugged Patient A during consultations between October and December 2021; 2. made inquiries about, and sought to join Patient A's plans for Christmas Day 2021, in the course of those consultations; 3. continued a therapeutic relationship with Patient A after 25 November 2021; 4. engaged in sexual intercourse with Patient A on 26 January 2022 and on other occasions after that date; 5. sought to persuade Patient A not to proceed with a complaint he thought she had made to the National Board by his text message of the 15 July 2022 and his email of the 16 July 2022; 6. stayed at Patient B's home between April 2020 and June 2020 on one or more occasions; 7. intentionally deleted 3 records of prescriptions for Patient B in April 2020 from the front page of her medical records; and 8. intentionally made a false statement to the Commission that the records he had caused to be provided on 22 August 2022 were, to his knowledge, a complete copy of the records held by either his practice or him concerning the treatment of Patient A and Patient B.
4. We shall deal with these questions below, as we consider particular complaints.

Statutory framework and legal principles

1. Section 139B of the Health Practitioner Regulation National Law (NSW) 2009 (NSW) (National Law) relevantly provides: (1) Unsatisfactory professional conduct by a registered health practitioner includes each of the following: […] any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession
2. Section 139E of the National Law relevantly provides: 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
3. Where, as in this case, the Practitioner is no longer registered, s 149C(4) of the National Law empowers the Tribunal to: (a) decide that if the person were still registered the Tribunal would have suspended or cancelled the person's registration; and (b) if the Tribunal would have cancelled the persons registration, decide that the person is disqualified from being registered in the health profession for a specified period or until specified conditions have been complied with; and (c) require the National Board with which the person was registered to record the fact that the Tribunal would have suspended or cancelled the person's registration in the National Registrar kept by the Board
4. We are guided by the principles set out in the National Law. The main guiding principle is that the protection of the health and safety of the public must be the paramount consideration (s 3A(1)).
5. Our task centres upon the protection of the public and the maintenance of proper professional standards (Lee v HCCC [2012] NSWCA 80 at [21]). The Court of Appeal in Health Care Complaints Commission v Do [2014] NSWCA 307 at [35] said the maintenance of standards and the general standing of the profession included: 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 their required standards will not be permitted to practise

Onus and proof

1. The factual basis of the matters particularised must be established on the balance of probabilities which is to be assessed having regard to all of the relevant evidence before us (Healthcare Complaints Commission v Wilcox [2020] NSWCATOD 10 at [52]). While the rules of evidence do not apply, the principles identified in Briginshaw v Briginshaw (1938) 60 CLR 336 (Briginshaw) are relevant (Bronze Wing International Pty Limited v SafeWork NSW [2017] NSWCA 41 at [126]) and we must be mindful of the nature and seriousness of the allegations to be proved.
2. In Briginshaw, Rich J used the expression "comfortable satisfaction". The phrase "comfortably satisfied" is commonly used as shorthand in the context of proceedings such as the present (Gautam v Health Care Complaints Commission [2021] NSWCA 85 at [87] citing Kumar v Legal Services Commissioner [2015] NSWCA 161 at [60]) to describe the level of satisfaction we need to reach on the balance of probabilities.
3. In this case the Practitioner has not been accused of a crime or fraud but has admitted serious misconduct as a practitioner. What remains are contentions the Practitioner was involved in somewhat more serious misconduct than the conduct he has conceded.

Credibility

1. The credibility of the Practitioner and Patient A is central to the question of whether particulars not admitted by the Practitioner and relating to conduct involving Patient A, are proved by the Applicant. The Practitioner's credibility is more generally relevant to other findings we have been asked to make.

Patient A

1. Patient A was at times slightly agitated and combative particularly when she was being cross examined about the Practitioner's version of his relationship with her. We are mindful of the fact that Patient A has formed the belief, which was more than reasonable based upon the text exchange with Patient B on 2 March 2022 (see below), that the Practitioner was in a longer-term romantic relationship with Patient B during the period of time of Patient A's intimate sexual relationship with the Practitioner.
2. Patient A's oral evidence was generally consistent with her initial complaint [Exhibit 1 pg 28], her statement [Exhibit 1 pg 225 and following] and the affidavit which she provided to the Practitioner's former wife for her family law proceedings [Exhibit 1 pg 236 and following]. Materially she has always maintained the evidence that is the subject of the disputed particulars. The only significant piece of evidence that was new was the detail Patient A gave about the practitioner using the penile injectable (Caverject) prior to intercourse.
3. Patient A's version of events is largely consistent with contemporaneous documents including written communication passing between herself and the Practitioner.
4. Overall, we found Patient A gave evidence in an unvarnished and forthright manner and we generally accept her as a credible witness.

The Practitioner

1. The particulars that the Practitioner has denied are generally the more egregious aspects of the complaints.
2. Paragraph 8 of the Practitioner's written submissions [exhibit 12] says: The practitioner seeks to have the relationships with Patients A and B represented fairly and accurately, in a decision published by the Tribunal that will be available to the public, and importantly, may be read by his children and family members, who have already been hurt by their parents' separation.
3. Whilst Senior Counsel for the Practitioner, in oral submissions, indicated that this was only an introductory paragraph and did not arise from evidence given by the Practitioner, we find that this indeed is the Practitioner's motivation for challenging the more serious particulars.
4. The Practitioner, in oral evidence, seemingly for the purpose of bolstering his credibility and on more than one occasion, posed a question as to why he would substantially admit most of the particulars of the complaints but not all of them. What is set out in paragraph 8 of his written submissions provides an adequate answer to that question.

The Practitioner's statements at the section 150 hearing

1. We find that at times during the s 150 hearing on 11 August 2022, the Practitioner did not tell the truth about the extent of his physical intimacy with Patient A and Patient B nor the truth about the timing of the development of his feelings for Patient B. He refused to accept instances when it was plain that his evidence in his s 150 hearing was untrue, insisting for instance that his description of the physical intimacy with Patient A was "downplaying" the truth, but "not by a lot."
2. Examples include: 1. the Practitioner's statement said that he and Patient B had not consummated their relationship by 11 August 2022 which he said was solely "romantic" at that time but not "sexual" in nature [Exhibit 1 pg 969-970]. However, in his most recent statement he admitted they had sexual intercourse by no later than the end of February 2022; 2. the Practitioner's statement that his relationship with Patient B only took on a romantic flavour in March 2022. [Exhibit 1 pg 970]. Other evidence suggests that their relationship was well advanced at that stage with the gift of jewellery and a marriage proposal. [see for example Exhibit 1 pg 402]; 3. the Practitioner's statement that he had no "romantic" feelings for Patient B during their therapeutic relationship [Exhibit 1 pg 972] is to be contrasted with his present acceptance that he had become attracted to Patient B in April 2020 [Exhibit 4: practitioner's statement at [58]] in circumstances where he continued to see her as a patient as late as 25 March 2020 [Exhibit 1 pg 135] and consistently issued her with prescriptions between 2020 in 2022 [Exhibit 1 pg 907]; 4. the Practitioner's statement he had ceased treating Patient B in 2019 [Exhibit 1 pg 968; l 15 to 19] is to be contrasted with the prescriptions that he wrote her on the 8 June 2022 and 12 August 2022, respectively just two months prior to and one day after the s 150 hearing; 5. the Practitioner's general description of his physical intimacy with Patient A including the statements that physicality was not a "stand out feature of their of their relationship" but was limited to "a proper kiss that had meaning, on a few occasions" and otherwise was "a brief hug and a kiss on the cheek or something like that" [Exhibit 1 pg 938 l1-10]. This is in stark contrast with his description in the hearing before us of all the physical encounters from the 25 December until February 2022

Other evidence

1. The Practitioner also alleged in oral evidence for the first time, that Patient A kissed him without warning on 25 December 2022. The Practitioner was taken to his evidence at the s 150 hearing about that occasion where he had said there was "nothing flirtatious about that meeting" … "Certainly not-nothing romantic and nothing flirtatious at that time" [Exhibit 1 pg 936]. Implausibly, he attempted to explain the inconsistency by asserting that at the s 150 hearing he was only referencing "flirtatiousness" on his behalf. The text of his evidence at the s 150 hearing is not compatible with that explanation and in any event, he agreed that he kissed Patient A back which is unambiguously flirtatious and romantic. We note in passing that it is Patient A's evidence that she does not recall there being any physical contact with the Practitioner that evening.
2. The Practitioner's evidence that there had been a final breakup in the relationship with Patient A, at least from his side following the alleged altercation at his home on 20 February 2022, was also directly inconsistent with subsequent messages he sent the Patient A. For example, on the 22 February, the Practitioner sent Patient A a text message in which he said, in part [at Exhibit 1 pg 373]: I would love to talk to you tomorrow. Please know that I want you in my life and in truth I need you in my life. You have given me an energy and vibrancy that I have never experienced before.
3. In his statement dated 17 September 2024 at [42]-[43], he described his version of an incident on the 21 June 2022 when Patient A attended his surgery: 42….I was with a patient when I heard raised voices. I went to the patient area and noted one male patient waiting to be seen. [Patient A] was talking to [Patient B] who was working as a receptionist that day. [Patient A] appeared to be intoxicated 43…[Patient A] left the practise moving towards the car park area. I followed her requesting that she stay. I watched her get into her car. I did not try and open her door as alleged. She started the car and reversed into my leg. I don't think it was intentional. By this time the police had arrived. The police body cameras operating. I express the view that I did not want her to attend the practice, or my home and she said she did not want me to go to her home. The police negotiated an agreement whereby we agreed not to approach each other's residence or my place of practise. No charges were laid.
4. When it became apparent that his position that [Patient A] appeared to be intoxicated was inconsistent with the lack of police action when they arrived and observed her behind the wheel of her motor vehicle, the Practitioner changed his evidence to say that Patient A was out of her car at the time they arrived and refused to accept that his written statement clearly said otherwise.
5. The Practitioner's evidence that he was aware on 15 July 2022 that the anonymous complaint was by his former wife is also directly inconsistent with the content of his text message about this to Patient A on that day [Exhibit 1 pg 424].
6. We discuss below the evidence central to complaint three. We have found that the Practitioner on 22 August 2022 and 17 September 2024 has given false information and evidence about the circumstances in which he was appointed as Patient A's enduring guardian. In particular, the Practitioner's statements gave the clear impression that Patient A had an independent solicitor with whom she had discussed the enduring guardianship; that his appointment occurred at her instigation; and that the Practitioner's involvement was limited to attending on Patient A's solicitor's offices to sign the document. It was only after the Practitioner was aware that Mr Maspero, the lawyer who witnessed the document, was going to be called as a witness in the case that he made known his long-standing friendship with Mr Maspero. He in fact had arranged for Mr Maspero's involvement.
7. In dealing with complaints 5 and 6 below, we set out our reasons why we conclude that the Practitioner has not told the truth about the fact that he intentionally altered both Patient B's current prescription records and her clinical notes and that he had intentionally provided materially incomplete records to the applicant about medical services given to Patient A and Patient B.
8. At times during cross examination, the Practitioner would finally accept that some of the evidence was untrue [for example that Patient B had not had sexual intercourse with him by the time of the s 150 hearing], but then obfuscate when asked to explain the untruth and then be unable to proffer any explanation.
9. In the face of the words written to Patient A in his text message sent on 15 July 2022 and in an email sent on 16 July 2022 (discussed below), the Practitioner continuing to say that he had no intention of attempting to influence Patient A to withdraw the complaint that he thought she had lodged against him, does him no credit.
10. The Practitioner gave oral evidence that he did not go to Patient A's house when she was not there as he "did not have a key". This evidence is disingenuous given in a text dated 25 January 2022 at 7.53pm [Exhibit 1 pg 316]: from Patient A to the Practitioner, she says "I have left the keys out so just let yourself in." In another text dated 7 February 2022 at 7.08pm [Exhibit 1 pg 339] from the Practitioner to Patient A, he says: "Hi [Patient A's given name]. Just at your place drinking red and watching TV".
11. In a reference prepared for the Tribunal on 19 September 2024, Dr Anthony F Morrow wrote, amongst other things: I have never had reason to doubt [the practitioner's] honesty and trustworthiness
12. Unfortunately, the Practitioner has given us reason to have those doubts.

Conclusion about the Practitioner's credibility

1. Overall, we got the impression that the Practitioner was prepared to change his evidence when it suited him.
2. When numerous and wide-ranging difficulties with the Practitioner's evidence are taken as a whole, we are generally unable to conclude that the Practitioner is a credible witness. Consequently, unless his evidence is uncontroversial or compellingly plausible, we are unable to accept his evidence unless it is corroborated by other evidence which we do accept.

The complaints

1. There were seven complaints.
2. The first three complaints relate to the Practitioner being guilty of unsatisfactory professional conduct under s 139B(1)(l) of the National Law in respect to Patient A. The next three complaints relate to the Practitioner being guilty of unsatisfactory professional conduct under s 139B(1)(l) of the National Law in respect to Patient B. The final complaint asserts that the Practitioner is guilty of professional misconduct because of the nature of the unsatisfactory professional conduct alleged in the previous six complaints.

Complaint 1

1. The first complaint relates to an allegation that the Practitioner breached professional boundaries with Patient A, on multiple occasions, between October 2021 and February 2022. In particular, it is alleged that there was physical contact initiated by the Practitioner during or at the conclusion of consultations; that he sought to initiate social contact during consultations; that he engaged in a close, personal and intimate relationship with Patient A including having sexual intercourse, and that he attended Patient A's home, drinking alcohol with her. It is further alleged whilst this close personal relationship was being conducted, the practitioner provided her with prescription medications and requested diagnostic testing.
2. From August 2012 until September 2020, the Practitioner's former wife primarily treated Patient A. Upon the Practitioner's former wife's departure from the practice in September 2020, the Practitioner became Patient A's sole general practitioner.
3. From September 2020 until the 25 November 2021 [on the Practitioner's version] and December 2021 [on Patient A's version], Patient A attended numerous consultations with the Practitioner at the practice, primarily related to her Workcover claim. The Practitioner admits that he provided professional medical services to Patient A outside the practice between January 2022 and February 2022.
4. According to the practitioner's medical records, the last occasion that he had a consultation with Patient A was the 25 November 2021. He's said he suggested to Patient A that she ought to see another general practitioner. He says that this was because of his lack of experience in gynaecological issues. At the s 150 hearing the Practitioner said [Exhibit 1 pg 925]: ... I really couldn't go any further with the doctor patient relationship so I asked her if she would go back to her - the doctor that she had seen a few times in the last few years. - Doctor Philip Norrie, and as I say in my notes, I gave her a copy of her - a summary sheet of the paper file and asked her to attend Doctor Norrie. That was the last time I saw her as a patient
5. In oral evidence on the last day of the hearing, the Practitioner referred to Patient A having a female GP and a gynaecologist.
6. The Practitioner admits that he breached professional boundaries when he engaged in a close personal an intimate relationship with Patient A that commenced on his version after he had met her for a drink on Christmas evening 2021. This relationship continued for about 8 to 9 weeks. In final submissions the Practitioner asserted that the relationship ended on approximately the 25 February 2022. While the Practitioner admits the bulk of the particulars and acknowledges the gravity of the conduct, there are parts of the particulars which the Practitioner disputes.

Complaint 1 Particular 1

1. Particular 1 of compliant 1 asserts that on multiple occasions between October and December 2021 the Practitioner breached professional boundaries when he hugged Patient A in his consultation room during or at the conclusion of weekly consultations associated with a workers compensation claim.
2. Patient A says that in or around late October 2021 at the conclusion of their regular consultations, the Practitioner began hugging her behind the closed door of his consultation room. She recalls he said words to the effect "it feels nice to have a cuddle" and said this behaviour happened on approximately three separate occasions during appointments between late October 2021 and November / December 2021. She also recalls the Practitioner asking her whether she had a boyfriend or was dating anyone. Her recollection is these hugs lasted up to a minute and on one occasion he hugged her so hard that he broke her sunglasses, which were clipped to the front of her top. She says that she thought it was a bit unusual but she brushed it off. She did not hug back. She felt confident and trusted the practitioner implicitly as her treating doctor.
3. The Practitioner has consistently denied that their regular consultations ceased after the 25 November 2021. The Practitioner also denies the conduct and the words Patient A alleges.
4. The Practitioner points to the following facts as to why his denials should be accepted: 1. Firstly, Patient A agreed that there was a receptionist present on each occasion when she went for consultations at the practice. This is of little relevance because the allegation made by Patient A is that the behaviour of the practitioner in both actions and words happened behind the closed door of the Practitioner's consulting room. 2. Secondly Patient A made no complaint about the conduct at the time. Whilst true, Patient A at the time was not outraged by his behaviour saying she felt confident in him and trusted the Practitioner implicitly. 3. Thirdly, in oral evidence Patient A said she did not feel uncomfortable when the respondent hugged her or made the remarks she alleges. The Practitioner submitted that this evidence is not believable. Again, we accept that Patient A thought it was a bit unusual but she brushed it off. We do not find that evidence to be not believable. 4. Finally, the Practitioner relies on the fact that there's no independent evidence that the practitioner conducted himself or said words as alleged in the particulars. Again that is true but we have the competing oral testimony of two witnesses one of whom is not telling the truth, as it's unlikely that either of them have misremembered what happened.
5. One other matter that we consider is that we have not been taken to any record of a consultation after 25 November 2021. Nor has any evidence been given from any member of the practice as to the lack of such a record. No submissions were made about this aspect of the matter. Given our findings below in relation to the Practitioner altering records by deleting a consultation (in relation to Patient B) or not recording entries in medical records we don't place weight on that fact.
6. Our findings in relation to credibility strongly dispose us to believing Patient A's version of events, including that there were consultations by the Practitioner with Patient A in his consulting room during December 2021. We are comfortably satisfied that Complaint 1 particular 1 is made out on the basis of the facts as asserted by Patient A.

Complaint 1 Particular 2

1. Complaint 1 Particular 2 is that on multiple occasions between November and December 2021, the Practitioner breached professional boundaries when he sought to initiate social contact with Patient A outside consulting times. Patient A's assertion is that on one occasion during a consultation in December, the Practitioner asked her if he could accompany her to serve Christmas lunch to the underprivileged in the city and she thinks she responded that she'd make some inquiries as to whether other volunteers were required. Patient A was rostered on to work as a nurse on Christmas Day and consequently did not go to the city.
2. On another occasion, during a consultation, Patient A says the Practitioner again asked her about her plans for Christmas. She says she told him that she was planning on having a few friends over for a meal in the late afternoon and the Practitioner asked if he could come over too as he said that he would be lonely on Christmas Day. She agreed that he could. Patient A says late on Christmas day the friends who were to be with her on Christmas Day cancelled.
3. The Practitioner denies each of these particulars and asserts that at no stage during any consultation did he ask if he could meet with her to serve Christmas lunch or meet with her friends on Christmas Day.
4. It is the Practitioner's evidence that it was Patient A who invited him for drinks on Christmas evening in a chance meeting at Mona Vale shops. Originally Senior Counsel for the Practitioner cross examined Patient A asserting that that meeting at Mona Vale shops took place on Christmas Day. When it was pointed out that that was not consistent with the Practitioner's written evidence that the Mona Vale meeting was shortly before Christmas (Exhibit 4 [25]), a concession was made that evidence given in that line of cross examination should not be taken into account by us.
5. In cross examination, Patient A agreed that the Practitioner and she met by chance at Mona Vale shops before Christmas Day 2021.
6. The Practitioner submits that his evidence should be preferred over Patient A in circumstances where: 1. there is no independent evidence of any consultations happening after the 25 November 2021. Whilst that is so, we have found above that there were further consultations. 2. it's suggested that text message exchanges between the Practitioner and Patient A on 25 December in relation to the first time they met socially, are consistent with the Practitioner's version of events (Exhibit 1 pg 249-253). We find these text messages are equivocal. The Practitioner texted: Hi [Patient A's given name] are we still on for a drink after work this arvo?
7. Patient A responds by providing the address, parking details and a proposed time and there are further text messages about Patient A having enough food in the house and the practitioner bringing wine and music.
8. It is likely the late withdrawal of her friends from attending took place after these text messages were exchanged. There is a subsequent text which refers to the fact that she would need him to help eating the food out of her fridge.
9. The Practitioner submits that the Practitioner's version of what happened is more inherently likely and the claim that Patient A was planning to have friends come over but they pulled out at the last minute is inherently unlikely. We do not see why that detail is inherently unlikely.
10. The Practitioner asserted that Patient A was initially reluctant in oral evidence to accept that she attended Mona Vale shops. Our impression was that Patient A generally readily made concessions including admitting that there was a chance meeting at Mona Vale shops. We don't remember initial reluctance but as previously indicated the initial line of questioning about the event was confusingly based upon a false premise.

Complaint 1 Particular 3, 4 and 5

1. The Practitioner admits particulars 3, 4 and 5 of complaint 1, namely that between the 25 December 2021 and sometime in or around February 2022, the Practitioner breached professional boundaries when he engaged in a close and intimate relationship with Patient A when he attended Patient A 's house, drank alcohol and engaged in physical intimacy such as kissing and cuddling with Patient A and when he engaged in regular text messages and phone calls with Patient A.

Complaint 1 Particular 6

1. The Practitioner denies particular 6, which alleges that on the 26 January 2022 the Practitioner breached professional boundaries when he engaged in sexual intercourse with Patient A.
2. Patient A alleges that this was the first occasion on which the Practitioner and she had sexual intercourse and that sexual intercourse occurred regularly in the weeks thereafter.
3. The Practitioner points to the fact that there's no independent evidence of sexual intercourse and that is true. Both parties have given diametrically opposite evidence about it happening.
4. The extent of the Practitioner's admission in relation to physical contact expanded during the course of the hearing.
5. Initially he said we engaged "in acts of physical intimacy / sexual contact but we did not have sexual intercourse."
6. During the hearing we asked Senior Counsel to obtain instructions from the Practitioner as to the extent of the physical conduct which the Practitioner was conceding. The instructions provided from the bar table were physical touching confined to the upper part of Patient A's body including breasts whilst they were lying semi naked in bed. In oral evidence however the Practitioner extended that concession to the fondling of Patient A's buttocks.
7. The Practitioner makes the submission [that he made without prompting in his own oral evidence on more than one occasion] that there was no reason for him to deny that sexual intercourse took place in circumstances where he admits that he had been involved in other sexual behaviour which was unethical. When discussing the Practitioner's credibility above, we have concluded why it might be that the Practitioner is generally admitting most particulars but resisting findings being made about the more compromising aspects of the complaint.
8. In final submissions, the Practitioner relied upon the fact that on the 16 November 2021, the Practitioner wrote a clinical record which says, amongst other things "[Name of Patient A's previous boyfriend] discussed. Concerned about vagina size? Not big enough as no children..." It is asserted in submissions that this note was a record by the Practitioner that Patient A had given a medical history that revealed that in 2021 she had not been able to have penetrative sexual intercourse with her previous partner. Patient A discusses this consultation in her initial complaint (Exhibit 1 pg 28): …because I had been sexually inactive for years the opening of my vagina was not able to be penetrated. I reported this to Richard as my doctor and said his penis is very large and my opening was too small, to which he replied his penis is not too large. I responded in saying as you know I have seen a lot of penises in my line of nursing and yes his penis is large
9. This evidenced by Patient A was not exploited during cross examination and it was not suggested to her that she was in fact physically unable to have any penetrative vaginal sexual intercourse on the 26 January 2022 and in the weeks following.

Evidence about the Practitioner's the vaginal examination of Patient A on 25 November 2021

1. When giving evidence on the third morning, the Practitioner for the first time provided a more detailed description of his examination of Patient A on 25 November 2021. For reasons that we will now discuss, we found that description problematic. In our view, had the Practitioner examined Patient A in the way he described, his clinical notes of that examination would have been significantly different.
2. The clinical record of 25 November 2021 is: "Pap smear taken. Small introitus with some vaginismus. Friable cervix with contact bleeding. Pelvis U/S ok. Life skills and coping with her personality type discussed. Needs repeat pelvis U/S & Pap in 1 year with another Doctor. Advised to now attend Doctor P Norrie. Notes to be sent on request." [The original handwritten note is at Exhibit 1 page 599. The typed record of Patient A's notes [at Exhibit 1 pg 793] incorrectly transcribes the word "friable" as the word "fragile".].
3. In his oral evidence the Practitioner said that Patient A had sclerosis of the vagina. When further questioned, the Practitioner clarified that by sclerosis of the vagina, he meant a condition called lichen sclerosus (sometimes written with "et atrophicus" added on). The Practitioner agreed he knew this was a condition that could lead to vulva cancer and required a biopsy. However, there was nothing at all in the medical record to suggest she had this condition, nor did he refer her for a biopsy. He also said in evidence that he knew the correct treatment is high potency steroid cream but he did not provide this medication for her.
4. Further, the Practitioner said when he was carrying out the vaginal examination on 25 November 2021 on Patient A, he did not use a speculum as her vagina could only admit his little finger. However, this inability to insert a speculum was not noted in the record. His evidence was that he just inserted a cytobrush (a thin device with a brush end) without a speculum and therefore what he obtained for the Pap smear was a 'blind' sample. This was also not recorded in the notes.
5. Notwithstanding the Practitioner said he could not see the cervix, he recorded the cervix was friable. The Practitioner said because there was blood on the cytobrush he assumed it was from the cervix but agreed it could have been from anywhere in the vagina. Marking the sample obtained on the screening test, as "cervical", on Patient A's pathology request, is not consistent with the Practitioner's evidence that he had not visualised the cervix and he could only guess that it might have been.
6. The Practitioner agreed he performed a 'test of cure' related to Patient A's previous cervical abnormality. This involves taking a sample from the cervix. His asserted inability to do a test of cure on this occasion is not recorded in his clinical notes.
7. Given the other specific details recorded in the medical notes, it seems unlikely that details such as the abnormal skin appearance or lichen sclerosus, being unable to insert a speculum or not being able to take the appropriate sample required for a test of cure, would not have been recorded by the Practitioner if the version of the examination that he gave in oral evidence on the third day was true.
8. In our view, given the medical notes made at the time, it seems much more plausible that the Practitioner was able to use a speculum for the cervical screening test (albeit that this may have been uncomfortable for Patient A and a difficult examination), was able to take a sample from the cervix, which he saw was friable and, that while there may have been some postmenopausal atrophy of the vaginal introitus, Patient A did not in fact have lichen sclerosus.
9. Given that this version of what happened on the 25 November 2021 was only given by the Practitioner on the final morning of the hearing, there was no opportunity for Patient A, who had already completed her evidence on the first day of the hearing, to be asked whether this description of the examination accorded with her memory of it.
10. Because the description of the examination is not consistent with the medical notes, we are comfortably satisfied that the Practitioner gave this evidence in the way he did, for the purpose of increasing the likelihood we would not accept Patient A's assertion that he had had vaginal sexual intercourse with her on 26 January 2022 and in the weeks following.

Provision of Ovestin cream and Vagifem vaginal pessaries to Patient A

1. The Practitioner provided Patient A with two prescription medications from the practice without issuing a prescription to her. The medication consisted of one packet of Vagifem pessaries and one tube of Ovestin cream. The date on the packaging is 13 January 2022, approximately two weeks prior to when Patient A says she and the Practitioner first had sexual intercourse. Patient A says: I had previously mentioned to [the Practitioner] that I had some issues with a previous partner in relation to having intercourse which is why I thought he gave them to me. On reflection, I believe he was preparing me for sexual intercourse with him.
2. In response the Practitioner recalls: [Patient A] asked me if I had some medication for symptoms of menopause. I knew that [Patient A] was herself post-menopausal and that she had been an aged care nurse. When she asked for these products I assumed that she had some atrophic symptoms and that she had seen other doctors prescribed the products for similar symptoms. I was not preparing her for intercourse
3. On the third morning of the hearing, the Practitioner was recalled as Dr Cox and Dr Yeo wished to ask further questions about the provision of Ovestin cream and Vagifem vaginal inserts to Patient A. The Practitioner wrote prescriptions to himself, filled them and gave the medication to Patient A (see photos Exhibit 1 pg 426 and 427). He asserts these medications were prescribed and supplied to the practice for general use.
4. The Practitioner said that these medications take a long while to improve vaginal health and 'don't do that much.' Given our findings in relation to the Practitioner's credit, we don't place any reliance upon that answer and in any event, it begs the question why then, did the Practitioner give these medications to Patient A if they weren't going to help her very much.
5. We have no expert evidence to suggest that these medications are used commonly for postmenopausal women to assist with making sex more comfortable or about how long they take to have any effect and we make no finding about that.
6. There is a clear conflict in the evidence about whether the Practitioner simply gave these medications to Patient A or whether she specifically asked for them. We prefer Patient A's evidence over that of the Practitioner's.

The Practitioner's use of an injectable

1. During her oral evidence, Patient A for the first time gave evidence the Practitioner used the penile injectable (Caverject) in order to achieve erections. The Practitioner denied using it with Patient A.
2. In submissions, the Practitioner described this evidence by Patient A as bizarre and asserted that it appeared to be an invention.
3. We do not accept that it is bizarre evidence given that it turned out to be an accurate description of what the Practitioner has done prior to having sexual intercourse. The Practitioner gave evidence that, when he was still living with his former wife he had on occasions used an injectable prior to intercourse.
4. The submission that it appeared to be an invention relies on the fact that Patient A had not previously provided this detail and given its significance she would have done so had it been true that she had observed the Practitioner injecting himself. This is not a detail that we would necessarily have expected to find in an a more general allegation about them having had sexual intercourse on a number of occasions. It appeared to us that the Patient A gave this evidence spontaneously and given our findings as to her credit we would not reject her evidence simply because she had not previously provided this detail.
5. During submissions, the Practitioner suggested that the way Patient A knew about his use of the injectable was likely as a result of his former wife disclosing this detail to Patient A. Patient A was in contact with the Practitioner's former wife in 2022 and 2023. Alternatively, it was suggested that the Practitioner may have mentioned this detail to her in an intimate moment between them. The Practitioner gave no evidence that he had mentioned that he used to inject himself to Patient A. Neither of these hypotheses were put to Patient A during cross examination.
6. We accept Patient A's evidence that the Practitioner used an injectable when he was with her.

Conclusion in relation to sexual intercourse

1. We are comfortably satisfied that the Practitioner had sexual intercourse with Patient A on the 26 January 2022 and regularly in the weeks thereafter.

Complaint 1 Particular 7

1. By his conduct as described in the first six particulars of Complaint 1, the Practitioner breached cl 10.2 of the Medical Board of Code of Conduct (October 2020) in that each instance constitutes a failure to maintain professional boundaries with Patient A.

Complaint 1 Particular 8

1. By his conduct as described in the first six particulars of Complaint 1, the Practitioner behaved in a way contrary to ss 3-4 of the Medical Board of Australia's guidelines on sexual boundaries in the doctor-patient relationship (December 2018).

Complaint 1 Particular 9

1. The Practitioner admits that whilst he was in a close personal relationship with Patient A, he provided prescription medication to her on or around 13 January 2022 (as discussed above); on 5 February 2022 provided a request for pathology; on 7 February 2022 provided a request for an ultrasound of Patient A's buttock and on 8 February 2022 provided a request for a steroidal injection in Patient A's left buttock.

Complaint 1 Particular 10

1. The Practitioner concedes by his conduct as described in particular 9, he breached cl 4.15 of the Medical Board of Australia's Code of Conduct (October 2000) in that his conduct constitutes a failure to avoid providing medical care to anyone with whom he had a close personal relationship.

Conclusion in relation to Complaint 1

1. In relation to the Complaint 1, we find that the Practitioner is guilty of unsatisfactory professional conduct in that he has engaged in improper or unethical conduct by breaching clauses 8.2 of the Medical Board of Australia's Code of Conduct (March 2014 and thereafter clause 10.2 of the October 2020 Code) in that he has failed to maintain professional boundaries with Patient A and has failed to avoid providing medical care to a person with whom the practitioner had a close personal relationship.
2. The conduct complained about, both individually and as a course of conduct, amount to unsatisfactory professional conduct based upon the findings set out above.

Complaint 2

1. The second complaint asserts the Practitioner contacted Patient A in a text message sent on 15 July 2022 and in an email sent on 16 July 2022, in circumstances where he believed that she had lodged a complaint with the National Board.
2. As at 14 July 2022, Patient A had not made a complaint, although she was in the process of doing so. The first complaint that had been made was by his former wife who was a doctor with whom he had shared the proprietorship of his medical practice.
3. The gravamen of Complaint 2 is that these communications were an attempt by the Practitioner to persuade Patient A not to continue with the complaint he thought Patient A had made.
4. The question of whether the Practitioner intended, by these communications, to persuade Patient A not to complain or participate in a complaint turns on his intention when he sent the messages. The Practitioner admits that this conduct amounted to unsatisfactory professional conduct but denies that his motivation was to persuade Patient A not to continue with the complaint.
5. The Practitioner's position in his written and oral evidence was, in effect, that at that time, in his mind, the genie was out of the bottle and his communication was a means of expressing his "hurt" rather than an attempt to have Patient A put the genie back into the bottle. This is consistent with what he told the delegates at the s 150 hearing (Exhibit 1 pg 963-4).
6. The Practitioner, later in oral evidence, accepted that it was possible that Patient A could have contacted the Commission and withdrawn the complaint but continued to deny that his motivation was to get her to do that.
7. The best evidence of the Practitioner's intention with respect to these communications is the content of those messages themselves.
8. The text message sent on 15 July 2022 was in the following terms: [Patient A's given name], I thought that we came to a resolution and had moved on. Yesterday I received an email from the Medical Board saying that they are starting an investigation of you and me because of a complaint made presumably by you. This will hurt my patients and my staff will possibly lose their jobs. It's really sad. Richard
9. The email sent on the 16 July 2022 was in the following terms: Hi [Patient A's given name] I thought we had reached a resolution of sorts and had moved on. Earlier this week I received an email from the Medical Board telling me that I was being investigated for my relationship with you. It was by an anonymous which I guess was you. This will potentially devastate my patients in the Narrabeen area and my staff will all lose their jobs. Is this really the outcome you want? I have apologised to you and given you what you asked. This is so sad. Richard
10. In the Practitioner's Response dated 22 August 2022, he concedes that the messages had the potential to make patient a feel guilty for making a report.
11. The text commences with asserting that a resolution had been reached between them and then asserting that the complaint (which the Practitioner assumed Patient A had made) would hurt his patients, and raised the possibility that all his staff would lose their jobs. The email sent the next day uses more emotive language, asserting that it would "devastate" his patients, and that it will result in his staff losing their jobs. The connection of the complaint with certain negative outcomes to unrelated third parties, followed by the rhetorical question "Is this really the outcome you want?" can only be understood as an attempt to persuade Patient A not to pursue a complaint. The plain message to Patient A is to ask her to refrain from pursuing the compliant, if not for the Practitioner's sake, then at least for the sake of innocent parties caught in the crossfire.
12. We do not accept that these communications were merely an expression of the Practitioner's hurt. We find that the Practitioner had in mind that, had Patient A recanted and refused to maintain the assertions she had made, the practitioner's position would have been advantaged.
13. The unsatisfactory professional conduct finding arising from Complaint 2 is made upon that basis.

Complaint 3

1. The third complaint is that while the Practitioner was Patient A's treating general practitioner, he accepted an appointment as Patient A's enduring guardian, contrary to s 6B(2)(a)(i) of the Guardianship Act 1987.
2. During consultations on 2 December 2020 and 3 February 2021, the Practitioner discussed with Patient A the issue of her having an appointment of an enduring guardian (Exhibit 1 pg 5 790-791).
3. As referred to above, in his written response to the initial complaint dated 22 August 2022 and initially before us, the Practitioner's prior statements gave the clear impression that Patient A had a solicitor with whom she had discussed the enduring guardianship; that his appointment occurred at her instigation; and that the Practitioner's involvement was limited to attending on Patient A's solicitor's offices to sign the document.
4. In his written response to the initial complaint dated 22 August 2022, the Practitioner told the applicant: On 2 December 2020, we discussed the need to consult her solicitor to address… guardianship matters. She agreed to see her solicitor to discuss such matters. On 26 March 2021 I met with her solicitor at her request and was appointed her enduring guardian (exhibit 1 pg 462)
5. Initially before us, the Practitioner repeats this assertion in the statement that he prepared for the hearing dated 17 September 2024 (exhibit 4 at [21]).
6. The Applicant issued a summons to Mr Maspero, the lawyer who had witnessed both Patient A's and the practitioner's signature on the Appointment of an enduring guardian. Mr Maspero had no records to produce and was called to give oral evidence by electronic means. There is a clear conflict between the evidence of Mr Maspero and the practitioner.
7. Mr Maspero was clear that he was engaged by the Practitioner; that the Practitioner had drafted the document; that he had no knowledge of Patient A prior to them meeting and the first and only time he had met Patient A was at a food court when he explained the effect of the document to her and witnessed her signature.
8. No mention was made in cross examination or in submissions about the one inconsistency in Mr Maspero's evidence. Mr Maspero originally said that Patient A brought the form with her to the food court when they met. He later said that he had collected that form from the Practitioner's surgery prior to meeting Patient A. That inconsistency is of little weight given Mr Maspero's strong evidence that he did not prepare the form.
9. On the first day of the hearing before us and with the knowledge that Mr Maspero might give evidence, the Practitioner for the first time identified that he had a long-standing relationship with Mr Maspero and that he might have recommended him to Patient A.
10. In cross examination, the Practitioner attempted to suggest that Mr Maspero might have been biassed against him because of some connection with his former wife.
11. Senior counsel for the Practitioner submitted that it was difficult to assess Mr Maspero's credibility when the evidence he gave was by electronic means (audio only) and further submitted: 1. Mr Maspero did not know that s 6B(2)(a)(i) Guardianship Act made a treating medical practitioner ineligible from being an enduring guardian of a patient; 2. Mr Maspero did not seek to ascertain whether Patient A was the Practitioner's patient; 3. that it was inherently unlikely that the Practitioner rather than Mr Maspero would have completed the document and including ticking two particular boxes (see Exhibit 1 at pg 439/798); and 4. Mr Maspero was an unimpressive witness.
12. Mr Maspero readily acknowledged the first point and the second point flows from that lack of understanding. In relation to the third point, it did not seem to be disputed that the form is able to be downloaded from the Internet. It is consequently possible the Practitioner did that and filled it out. Mr Maspero was very clear that his usual practice was to retain a copy of any document he had drafted. He had no record of retaining a copy of Patient A's appointment of enduring guardian. Mr Maspero is an experienced legal practitioner. He was giving evidence under oath. We find he had no motive to give false or partisan evidence because of some connection with the practitioner's former wife. That was not put to him in cross examination.
13. Finally, we do not accept that Mr Maspero was an unimpressive witness. We have found the Practitioner to be an unimpressive witness.
14. We find that the Practitioner initially sought to create an incorrect impression as to how Patient A engaged with Mr Maspero. He did not disclose his long-standing relationship with Mr Maspero until it was clear that Mr Maspero was going to be called as a witness. There is no evidence that there had been any contact or connection between Patient A and Mr Maspero before or after the execution of the document and their narratives corroborate each other.
15. It is implausible that the Practitioner does not recollect engaging Mr Maspero. On his own evidence he has only been involved with being an enduring guardian for a patient on one other occasion.
16. On balance we accept the Practitioner originally gave an incorrect description of the circumstances in which the appointment of an enduring guardian came into existence and that the Practitioner: 1. had a longstanding existing relationship with Mr Maspero; 2. contacted Mr Maspero and requested his assistance in advising Patient A, on the understanding he would advise Patient A without charge; 3. prepared the form and provided it to Patient A or Mr Maspero; 4. signed the document at a time when Mr Maspero attended his surgery with the form having already been executed by Patient A in Mr Maspero presence; and 5. executed the form in Mr Maspero's presence.
17. The finding of unsatisfactory professional conduct arising from Complaint 3 is made upon that basis.
18. We accept that the Practitioner did not exercise any of the powers under the Appointment of Enduring Guardianship and he resigned from that role on 17 August 2022.

Complaint 4

1. The fourth compliant relates to the Practitioner breaching professional boundaries with Patient B.
2. The complaint asserts from January 2020 to February 2022 there was regular socialisation between them. The Practitioner admits that he socialised with Patient B but says it was not regular during those two years. The Practitioner admits that by April 2020 he had become attracted to Patient B and from that time he had a close and personal relationship with her.
3. The complaint further asserts that at times between April 2020 and June 2020 the Practitioner stayed at Patient B's home and at times the Practitioner consumed alcohol with Patient B. In his reply dated 17 September 2024, the Practitioner does not admit that he stayed at Patient B's house during that time frame. However, it seems that the failure to make that admission arises from an assertion by the Practitioner that he does not remember if it happened. He now makes the concession that it might have (see Exhibit 4; para 59 of the Practitioners' statement also dated 7 September 2024). The Practitioner admits they may have consumed alcohol together during that time frame.
4. On 2 March 2022 there was an exchange of text messages between Patient A and Patient B. Patient A told patient B, the Practitioner had said to her that he was just a good friend of Patient B and "has only slept w u twice & that was 6 months ago". Patient A asked Patient B, "Why in two years has your relationship not progressed? Did he discuss marriage w u?" "Did he give u a pair of multiple sapphire studs in the last couple of months?" Patient B responded by confirming that the Practitioner had discussed marriage with her and he had given her a pair of multiple sapphire studs during the period of time that the Practitioner was having an intimate relationship with Patient A (Exhibit 1 pg 402-403).
5. The Practitioner originally said that no intimate sexual relationship between Patient B and himself commenced until March 2022.
6. Patient B's statement dated 26 March 2023 includes: 6. I have never had a sexual relationship with [the Practitioner] whilst I was his patient 7. My relationship became briefly sexual in February 2022 8. I commenced a relationship with [the Practitioner] in February
7. At paragraph 64 of the practitioner's statement dated 7 September 2024 the practitioner says: …I continued to see [Patient B's given name] and our relationship became romantic and intimate in March 2022. Her statement says this occurred in February 2022. My memory is that it was early March but it could have been after 25 February and I'm happy to accept her account
8. It is not part of the Applicant's case that there was overlap in sexual activity between the Practitioner and Patient A and the Practitioner and Patient B. If in fact there was not, then it was sequential without any appreciable gap.
9. The Practitioner admits that during 2022/2023 he and Patient B remained in a romantic relationship until a date sometime between 20 February 2023 and 3 April 2023.
10. Between January 2020 and the 12 August 2022, the Practitioner wrote prescriptions for Patient B on 12 occasions; consulted with Patient B on the 25 March 2020 and probably 15 April 2020 (he at least wrote a prescription on that day); excised a skin lesion from Patient B's forearm in May 2021 and wrote a letter dated 3 June 2021 to a specialist requesting that he provide an opinion on Patient B's pathology report.
11. From 31 March 2022, the Practitioner employed Patient B as a receptionist in his practice.
12. In relation to the denial by the Practitioner that he spent time in Patient B's home between April 2020 and June 2020, the Practitioner relies upon the statement by Patient B which states the Practitioner had not stayed at her residence between November 2019 and June 2020 (Exhibit 1 pg 458). Patient B made it clear that she did not wish to be involved with this complaint going forward. Patient B was not required to give evidence.
13. On the other hand, there is evidence of a written admission from the Practitioner to the contrary. The Practitioner had left the marital home with his former wife on or about 27 April 2020 (Exhibit 1 pg 153) and on 23 June 2020, the Practitioner wrote to her, inter alia (Exhibit 1 pg 74): When I left [the former matrimonial home] I reached out to a number of people including [Patient B's given name]…[Patient B 's given name] was supportive and has allowed me to stay some nights in her spare bedroom when I've had extra wine. She drinks Pinot so I bought it to thank her.
14. Notwithstanding the denial in his most recent reply and in his statement of 17 September 2024 at [49], the Practitioner concedes he may have stayed at Patient B's house at that time. But he backed away from that concession during oral evidence when he mused about the possibility that the written record dated 23 June 2020 may not be authentic. We have not been taken to any part of the evidence which would indicate that the Practitioner had previously made that allegation.
15. The message was provided by the Practitioner's former wife who has also not been required to give evidence. Consequently, the authenticity of that message cannot be disputed.
16. On balance, we rely upon the Practitioner's own contemporaneous words to conclude he stayed some nights at Patient B's home between 27 April 2020 and 23 June 2020.
17. In relation to the complaint 4, we find that the Practitioner is guilty of unsatisfactory professional conduct in that he has engaged in improper or unethical conduct by breaching clauses 8.2 of the Medical Board of Australia's Code of Conduct (March 2014 and thereafter clause 10.2 of the October 2020 Code) in that he has failed to maintain professional boundaries with Patient B and has failed to avoid providing medical care to a person with whom the Practitioner had a close personal relationship. Further he has breached cl 10.2.1 of the October 2020 code by failing to maintain professional boundaries with Patient B during the period of her employment in his practice.
18. The conduct complained about, both individually and as a course of conduct, amount to unsatisfactory professional conduct.

Complaint 5

1. The fifth compliant is that between the 1 June 2020 and 22 June 2020, the Practitioner deleted three prescriptions that he had written for Patient B in April 2020 from the current medication list in the records of the practice.
2. Between 1 June 2020 and 20 June 2020, the Practitioner deleted from the list of current medications in the practice's medical records for Patient B, prescriptions issued by the practitioner on 15 April 2020 for Rocaltrol; on 19 April 2020 for an Epipen and 30 April 2024 Tiprim. During his evidence the Practitioner could give no specific reason why he only removed three prescriptions in 2020, notwithstanding there is nothing qualitatively that differentiates them from the 2019 prescriptions each of which also appear to be one off in nature. Earlier in a letter to the applicant dated 3 April 2023 (Exhibit 1 pg 861 at [5.2], the Practitioner said that it was possible he did delete the history of prescriptions for Patient B in 2020 to avoid detection from his ex-wife who at the time was accusing him of being involved in relationships, including with Patient B, and that he took steps to remove the evidence of an ongoing doctor/patient relationship with Patient B to avoid that speculation from his then wife.
3. The Practitioner had asserted on 27 July 2000 to his former wife (Exhibit 1 pg 87); on 11 August 2022 to the Medical Council at the s 150 hearing, when he read from a note that he had prepared (Exhibit 1 pg 968 at [11] to [21]) and on 22 August 2022 to the applicant (Exhibit 1 page 466-467), that he had ceased treating Patient B in 2019. He knew at the time he made those statements that they were false.
4. The Practitioner is guilty of unsatisfactory professional conduct in that he has engaged in improper or unethical conduct relating to the practice or purported practise of medicine by breaching the following clauses of the Medical Board of Australia's Code of Conduct (March 2014): 1. clause 1.4 in that his conduct constitutes a failure to act with integrity and truthfulness; and 2. clause 8.4 in that his conduct constitutes a failure to maintain clear and accurate medical records for patient B.

Complaint 6

1. The sixth compliant is that on the 22 November 2022, the Practitioner provided the Commission with a statement confirming he had provided it with all relevant medical records in his possession for Patient A and Patient B, when he knew that this was false.
2. The Applicant issued a direction to the practitioner pursuant to s 34A(1)(a) of the Health Care Complaints Act 1993 NSW: to provide a statement of information signed by you addressing the following questions: On 22 August 2022, you provided the medical records of Patient A and Patient B to the applicant, please confirm whether those records represent a complete and up-to-date copy of all documents held by your practice relating to the care and treatment provided by your practice to both patients (Exhibit 1 pg 832).
3. On 22 November 2020, the Practitioner provided the Applicant with a signed statement (Exhibit 1 page 848) that to his: knowledge the records provided [at Exhibit 1 pg 482-789] represented a complete copy of all the documents held by me/ the practice relating to the care and treatment of both patients
4. There is no dispute from the Practitioner that in fact the records provided 22 August 2022 are materially incomplete and misleading.
5. In addition to providing to the Applicant the altered records in relation to Patient B's prescriptions which are the subject of complaint 5, the Practitioner also provided a copy of Patient B's clinical notes which the Practitioner had rewritten. In addition, the Practitioner had provided prescriptions and treatments to both patients which were not disclosed at all.

Re-writing Patient B's clinical notes

1. There are two versions of Patient B's clinical notes. Each consisted of six single sided pages of handwriting. The first five pages of the record are identical. The major inconsistency between the two records is on the sixth and final page. The correct version of those notes sets out consultations between Patient B and the Practitioner on 6 August 2019, 17 September 2019, 10 December 2019 and 25 March 2020 (Exhibit 1pg ,130,133 to 135). The incorrect version of those notes omits any reference to the fourth consultation on 25 March 2020 and contains embellishments to the original. It was this version that the Practitioner provided to the applicant. (Exhibit 1 pg 483-488).
2. The Practitioner provided the following theory as to how it might have all come about. It involved the Practitioner musing that: 1. his former wife removed the sixth page of Patient B's clinical notes prior to 25 March 2020 at which time it only recorded the first three consultations; 2. prior to 25 March 2020, he noticed the sixth page missing and he rewrote the first three consultations by hand using the digital copy of the records which was scanned into the medical file. We note that the rewriting by the Practitioner including him adding embellishments to the note about the third consultation that were not on the original namely "R TM Dull" referring to the appearance of the eardrums and "i bd" relating to the dosage of the antibiotic, Augmentin Forte; and 3. then either his former wife swapped the original sixth page that she had taken with the page that he had rewritten so that the Patient's B's record was then incomplete or the page he had rewritten fell out of the file (with no other page falling out) and the original page six, with the clinical notes with only three consultations was found and replaced in the file by a member of staff.
3. We got the impression when the Practitioner was giving this evidence that he was just making it up and we found his musings fanciful. What we do find happened is a far more inherently likely explanation.
4. By the 25 March 2020, the Practitioner was attracted to Patient B. His wife had accused him of having an intimate relationship with her. After 25 March 2020 he removed the sixth page and rewrote it including only the first three consultations and deliberately omitted the fourth because he did not want any record of that consultation in Patient B's clinical notes. At the same time, he took the opportunity to embellish her record. It was this record that he provided to the applicant as an authentic record. The Practitioner was unable in his evidence before us to admit that that's what he had done.

Provision of other medical services

1. The Practitioner admits providing each of the medical services identified below.
2. To Patient A: 1. The provision of prescription medication (without a valid prescription) being one packet of Vagifem pessaris and one tube of Ovestin cream in January 2022; 2. on 5 February 2022 requesting a pathology report; 3. on 7 February 2022 requesting an ultrasound; and 4. on 8 February 2022 requesting a steroidal injection.
3. To Patient B: 1. the prescriptions provided for Patient B to the applicant are not complete and finish at 10/12/2019 (page 551 of electronic brief, page 91 of 346 of the practitioner's response to the applicant), where we know from the list of prescriptions (p 907) that a number of scripts occurred after this date namely 24 December 2019, 15 April 2020, 19 April 2020, 11 January 2021, 22 March 2021, 4 June 2021, 22 March 2022, 8 June 2022 and 12 August 2022. The last three prescriptions were written for Patient B after he had commenced a sexual relationship with her. The final prescription is just ten days prior to the practitioner providing the documents to the applicant so he ought to have recalled this prescription and realised he had not included it; 2. excision of a skin lesion from her forearm in May 2021; 3. writing to Professor Jonathan Stretch on 3 June 2021 seeking an opinion on the pathology report as to whether further excisions were required for Patient B; and 4. seeing her in his rooms on 25 March 2022 for inter alia the excision of 10+ skin lesions.
4. None of this activity was in the records produced to the Commissioner by the Practitioner on 22 August 2022.
5. Almost all of these medical services took place either at a time when the Practitioner admits that he was in at close personal or intimate relationship with either of the patients as applicable or in the case of Patient B at times when he admits he was attracted to her.

Conclusion in respect of Complaint 6

1. Whilst the Practitioner agrees that he provided false information to the Applicant, he says the provision of that false information was not intentional. We find that it was.
2. There does not seem to be any errors or other matters affecting the integrity of the medical record for the patients in the period prior to the Practitioner having feelings for or forming personal relationships with them.
3. We do not accept that the Practitioner failed to recollect any of these prescriptions or consults when expressly required to confirm, by way of a signed statement, that the records were complete by his regulatory authority (that is the Applicant), despite on his own evidence being aware of irregularities in Patient B's records (being the apparently misplaced sixth page 483) and in spite of expressed past allegations from his former wife that he had deleted prescriptions to Patient B in order to cover up an affair with the patient in respect of whom he was now the subject of a formal boundary crossing complaint.
4. We are comfortably satisfied that the Practitioner intentionally deleted prescriptions from Patient B's records and intentionally withheld information from Patient A's and Patient B's records in order to conceal the fact that he was continuing to treat both of them while being in a personal and/or intimate relationship with each of them.
5. We are comfortably satisfied that by providing the Commissioner with a statement confirming that the Practitioner had provided the Commission with all relevant medical records in his possession for Patient B when he knew that to be false, the Practitioner breached Clauses 2.1,10.11.1,10.11.2 of the Medical Board of Australia's Code of Conduct (October 2020) and accordingly constituted unsatisfactory professional conduct under s139B(1)(l) of the National Law.

Complaint 7

1. The seventh complaint asserts that the by virtue of any or all of the Practitioner's unsatisfactory professional conduct, the Practitioner is guilty of professional misconduct under s 139E of the National Law because that unsatisfactory professional conduct is of a sufficiently serious nature to justify the suspension or cancellation of the Practitioner's registration.
2. The Practitioner concedes that a finding of professional misconduct is warranted but based upon facts as asserted by him. We find that the conduct is of a sufficiently serious nature to justify the cancellation of the Practitioner's registration, based upon the findings made by us, and accordingly we conclude that the Practitioner is guilty of professional misconduct.

Stage 2 - protective orders

1. In this case, the Practitioner gave evidence he has retired from practice, and we accept he currently has no intention of seeking re-registration in the future. Section 149C(4) of the National Law requires us to make a determination as to what protective orders should be made had the practitioner still been registered.
2. As indicated in the introduction, the Practitioner accepts that an appropriate protective order is one that recognises that had he still been registered as a general practitioner, a period of cancellation would have been appropriate. The Practitioner submits that the appropriate period of cancellation should be in the order of 12 months rather than the three years sought by the applicant.
3. The Practitioner worked for 42 years as a medical practitioner and for 37 of those years, serviced the community of Narrabeen working for most of the time in the practice that he had established with his former wife.

Doctor Garrity's evidence

1. The Practitioner submits that his mental status at the time of his boundary violations with Patient A is relevant in determining what orders are appropriate for the future protection of the public and the maintenance of proper professional standards.
2. The unchallenged evidence of the Practitioner's treating psychiatrist, Dr Alan Garrity, is that at the time the Practitioner headed into a relationship with Patient A he was suffering from a significant Major Depressive episode. Dr Garrity writes in his final report dated 19 September 2024 (Exhibit 4, Tab 6): 7. Regarding [the Practitioner's] level of understanding and insight into the ethical issues underpinning professional boundaries, this has evolved overtime. After the complaints were lodged with the HCCC, he initially maintained contact with Patient B, as he still hoped that a long-term relationship might be possible with her, even if this would potentially be at the cost of his own career. He has since done an AMA course on professional boundaries, has completed other courses on mental health, and has reflected on his actions. He has since acknowledged that he had made significant mistakes that were potentially harmful to her [Patient B], although he remains apprehensive about the effect that ending their contact would also potentially have on her. In terms of understanding why he violated professional boundaries, in my consultation with him on 22/12/22, he attributed it to "loneliness and stupidity"; He also reported having "relived this so many times" and regretting it. However, given that when I first assessed him on 30/11/21 he was suffering from a significant Major Depressive episode in the context of the breakup of his marriage, an acrimonious divorce process, the stresses of trying to maintain his general practice alone, and having to move out of home into bed-sit accommodation following the marital separation, I believe that depression was also a significant contributor to his behaviour at the time. … Overall, in the context of the breakdown of his marriage, and subsequently acrimonious legal process, stresses associated with trying to maintain the family's general practise by himself, feelings of loneliness, the recurrence of a Major Depressive episode (with significant symptoms that were evident when I first assessed him on 30/ 30/ 11/21, well before the HCCC complaints were lodged), I would see him as someone who responded to his distress at the time by seeking comfort in external relationships. He has now come to better understand the inappropriateness of his decisions, the power imbalance in the nature of the relationships that were formed, and the harm that may have potentially been done to those he was involved with. He has significant regret and remorse about his actions. He is also now grappling with the loss of his career, which was part of his identity, and how the legacy he had-forty years of treating patients -will be affected by his previous actions and the outcome of the HCCC process in response to them.

References

1. Doctor Margaret Malvenna is a retired medical receptionist, who worked for at the practitioner's practice for approximately 12 years as a receptionist two days a week, leaving in March 2022. Her evidence in relation to the Practitioner, dated 14 September 2024, is as follows: During my time working there I always found [the Practitioner] to be a dedicated and compassionate doctor who strived to do his best to help his patients. Similarly, he displayed the same traits towards his staff. I never witnessed any flirtatious or unprofessional behaviour to patients or staff. At all times his focus was on patient care. His work at the RSL Village was very time consuming, sometimes involving before, during and after surgery care. Not once did he complain of the extra work involved. [The Practitioner], in my opinion, was one of the best and kindest GP's that I have ever worked for. He was also our family doctor and someone that I am proud to call a friend. His loss to the Northern Beaches community would be greatly felt.
2. A further reference is provided by Dr Anthony F Morrow, who has recently retired as a Consulting Endocrinologist and General Physician at the Northern Beaches Hospital in Frenches Forest NSW. He met the Practitioner around 1988 and they enjoyed a good collegiate relationship. In a reference prepared for the Tribunal on 19 September 2024 he wrote, amongst other things: In regard to patient care [the Practitioner] has been extremely competent and caring for his patients and I know from those patients whose care we have shared that they hold him in the highest regard. I have never known [the Practitioner] to behave in any way inappropriately with women either in a social setting and certainly never in a professional setting. [The Practitioner] has run a very professional general practise exceeding all the targets required by his professional bodies and he has been an asset to his local community. I have never had reason to doubt his honesty and trustworthiness.

The Practitioner's insight and remorse

1. In his statement dated 17 September 2024 (Exhibit 4 at [67]-[73]), the Practitioner expresses contrition and regret about his conduct. He says that he's sickened by the way he treated Patient A and Patient B and that they deserved greater respect and care. He apologises to them, to his family, his ex-staff, his community and his health professional colleagues and to us.
2. In oral evidence he accepted that there was a power imbalance between himself and the persons who had been his patients and he deeply regretted the pain caused to them.
3. The expression of insight is mitigated by the fact that the Practitioner has been dishonest about important aspects of the complaints and has not fully admitted what has happened. He sought initially to minimise his conduct by giving false accounts to the delegates in the s 150 hearing and continued to minimise those accounts before us.

The period of cancellation and non-review

1. The Practitioner argues that a period of one year cancellation is appropriate because weight should be given to the following factors: 1. The Practitioner practised at a very high standard for over 40 years. 2. He was a well-respected General practitioner, providing much needed services including after-hours house calls. 3. He engaged in the conduct at a time when he was suffering from significant depression, a chronic condition which became acute. 4. He admitted to the majority of the complaint and most significantly the gravamen of the conduct. Whilst true, this hearing took place because the practitioner continued to challenge the more serious conduct particularised in the complaints. 5. He has insight and remorse. We have just commented upon how those expressions of insight and remorse are mitigated. 6. A protective order of cancellation is already extremely serious and places the onus on him to prove reformation of character at the end of that period. 7. He did not require Patient B or his former wife for cross examination thereby minimising the disruption and stress to them. We don't put a lot of weight on that submission given that we're unable to discern any part the evidence of either of those women which the Practitioner sought to put in issue.

The Conclusion in Respect of Protective Orders

1. It is not contentious that cancellation is warranted.
2. The Practitioner continues to deny the more serious aspects of his behaviour. There was significant boundary crossing with Patient A and Patient B at a time when he was treating them which constituted a serious breach of professional standards. He attempted a cover up by altering their medical records. He attempted to give a false impression as to how he became Patient A's enduring guardian. He sought to put pressure on Patient A not to continue with a complaint against him.
3. He was not candid when giving evidence before the delegates at the s 150 hearing. He intentionally provided the Applicant with falsified documentation in relation to Patient A and Patient B. He gave false evidence before us.
4. We conclude when taking all of the voluminous material and oral evidence before us into account and the findings we have made based upon that evidence, the period of cancellation and non-review should be three years.

Costs

1. Given the outcome about the term of the cancellation and the non-review period was unknown at the end of the hearing, the parties agreed that cost should be reserved with a set of directions for written submissions and that otherwise a determination of cost, if it is necessary, would be carried out on the papers.

Orders

1. We make the following orders and decisions: 1. The name and address of witnesses listed in the schedule to the application filed on the 16 May 2024 not be disclosed under clause 7 of Schedule 5D of the Health Practitioner Regulation National Law (NSW) ("the National Law"). 2. Pursuant to section 149C(4)(a) of the National Law, the Tribunal has decided, if Richard Grant Wood was still registered, the Tribunal would have cancelled his registration. 3. Pursuant to section 149C(4)(b) of the National Law Richard Grant Wood is disqualified from being registered in the medical profession for three (3) years from the date of this decision. 4. Pursuant to section 149C(4)(c) of the National Law the National Board is required to record the fact that if Richard Grant Wood was still registered the Tribunal would have cancelled his registration in the National Register kept by the Board. 5. Pursuant to section 149C(7) of the National Law any application for review of order 3 may not be made until three (3) years from the date of these orders. 6. Any application in respect of the cost of these proceedings is reserved on the following conditions: 1. The parties confer forthwith in relation to the question of costs and if they are able to reach an agreement they are to lodge a minute of order with the registry. 2. Failing agreement after a period of fourteen days, the applicant is to file written submissions within a further period of 14 days. 3. The respondent is to file any submissions in reply within a period of a further 14 days. 4. A decision as to costs will be determined on the papers.

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: 18 December 2024