The Applicant's Circumstances at the time of the boundary violation complaint
At the time of the consultation with Patient A, the Applicant's personal life was in chaos and had been so for some time. The evidence of the stresses then on the Applicant are relevant not to excuse his conduct or to express sympathy for him but to give a context in which the established conduct occurred. That context is relevant to assessing future risk.
At the time of his father's sudden death in October 2017, the Applicant's parents were living with him and his partner and their children. His father's death had a significant effect on the Applicant but also on his mother whose mental health deteriorated. In the following period, the relationship with his partner broke down in acrimonious and violent circumstances. His partner who had abused alcohol throughout the relationship was violent to the Applicant and to his mother who was then aged in her 80s. Matters culminated in the police being called, the partner removed from the house and admitted to a psychiatric facility as an involuntary patient, and the police took out an Apprehended Violence Order for the protection of the Applicant and his mother.
The Applicant and his ex partner had twin daughters both of whom have significant mental health illnesses. The Applicant said that his ex partner was emotionally abusive of the girls during the relationship. After the separation, in November 2018, one daughter came to live with him, the other remained living with her mother and was estranged from him until about 2019. This child had made a number of serious attempts at suicide in the recent years and had spent five months in a mental health facility, some of that time being closely observed to guard against further attempts at self harm. She remains under the care of a community mental health team.
The Applicant has two adult male step-children, the children of his ex partner. Both have been diagnosed with schizophrenia. Their psychiatric difficulties posed additional stress. One young man managed to complete high school and gain entry to a university course but at university there was a significant deterioration in his mood state and behaviour. He was moved to live in a boarding house but that was unsuccessful, and ultimately the Applicant purchased a house in which the young man could live. While this brought about some settling in the young man's mood and behaviour, he was eventually admitted to a local mental health facility. The purchase caused financial stress which added to the existing stresses in the Appellant's relationship with his ex partner. The other young man struggled with the symptoms of his schizophrenia and he was placed on antipsychotic medication which caused physical symptoms which distressed him.
The Applicant said that all of these difficulties took a toll on his mental health. He said he was working 10 to 12 hour days and seeing up to 50 patients a day. According to Mr Tim Watson-Munro, clinical psychologist who provided psychological reports in relation to the Applicant, he appeared to have engaged in "manic defence" which he said is common in depressed people, to overwork as a means of distraction from emotional pain.
Indeed, such was the obvious impact of these stresses on the Applicant that his colleagues in the medical practice asked him to get some psychological counselling, which he did. The Applicant said that these factors clearly impacted his emotional health and functioning, but said that he did not recognise the deterioration in his own mental health at the time. The Applicant consulted with a psychologist, Navin Gooniah for 18 months from October 2018 until February 2021. Mr Gooniah considered that at the time of the consultation with Patient A, the Applicant was suffering from an adjustment disorder brought about by the stresses in his life.
The Applicant said he derived benefit from his counselling with Mr Gooniah, however, he did not continue it because neither Mr Gooniah nor the Applicant felt it was necessary.
The Applicant relied on three reports from Mr Tim Watson-Munro and attended Dr Anthony Samuels, a psychiatrist, on behalf of the Respondent who prepared a report for the Tribunal.
Mr Watson-Munro spoke of the pressures under which the Applicant was functioning at the time of the established conduct. Mr Watson-Munro felt that it was in the context of these pressures that the Applicant's judgment "faltered" leading to the Patient A's complaints.
As to his assumption that perhaps the Applicant was "overworking" as a coping mechanism, Mr Watson-Munro believed that the Applicant was not aware that is what he was doing at the time. He said that if this was the case then the Applicant should engage in deep exploration of why that occurred including reducing workload and psychological assistance with the input of a psychiatrist to consider medication would be appropriate.
Mr Watson-Munro reported that the Applicant felt he would now be able to recognise the pressure and its effect on his psychological functioning if he came under stress in the future.
Dr Samuels noted that the Applicant said that over the time since his registration was cancelled he has become more mature and has a better understanding of his professional responsibilities. He has done a number of courses aimed at improving his knowledge and understanding of those responsibilities including an ethics course. He said that he understood that if he is stressed he would see his general practitioner and accept a referral to a mental health professional if that was advised.
Dr Samuels found no present evidence that the Applicant is clinically depressed or anxious. His impression was that there was a deterioration in his mental state in the context of the breakdown of his relationship and the associated conflicts, financial stress and the alienation of his children. Dr Samuels said that the boundary violation occurred in that context.
Dr Samuels said that it was "…unfortunate that [the Applicant] did not continue with some ongoing contact with his psychologist even if only intermittently, as this would have helped document his stability and perhaps give further opportunity to reflect on the issues leading to cancellation." This point, about the Applicant continuing with psychological support following the cancellation of his registration was raised with Mr Watson-Munro who said that neither he nor Mr Gooniah had determined any clinical psychopathology in the Applicant and in those circumstances there was nothing to work on in continuing the psychological counselling.
However Mr Watson-Munro did recommend that if the Applicant was reinstated he should have such support as a guard against future stress causing him future problems.
[2]
The sexual boundary violations
The Applicant maintained his denial of sexual boundary violations. He said in his affidavit filed in these proceedings, "I respect the findings of NCAT and the Supreme Court of NSW Court of Appeal in this regard." The Applicant also said:
I have reflected on these proceedings, and even though I disputed the key allegations against me and maintain my denial of these allegations, clearly Patient A was impacted terribly by that consultation with me. I am mindful that this is something that I can never make up for to Patient A. My conduct in that consultation with Patient A fell below an acceptable standard for a medical practitioner, especially one with my experience, and I will regret my behaviour during this consultation for the rest of my life."
In his oral evidence, the Applicant was asked further to reflect on how his conduct asserted by Patient A and believed by her to have occurred, would have affected her. He said that he understood it would have had a very negative effect on the patient and there would be negative effects on her including mental and emotional trauma which is damaging and everlasting.
Since the decision of the Tribunal the Applicant has done courses on ethics and sexual boundaries. When asked to reflect what he had learned, he spoke of the need to take time to obtain consent and the importance of discussing the procedures with the patient. He referred to the imbalance of power that exists between a practitioner and a patient and that it is inappropriate for there to be any sexual relationship. He spoke of his role as a medical practitioner not to do harm to a patient. There was some criticism of the Applicant's evidence in this regard, and it was submitted that it could have been more fully expressed. Perhaps it could have been, but it was clear from his evidence that the Applicant having done those courses had understood their import.
[3]
doTERRA oils
These oils and other products are aromatherapy based. They were sold by the Applicant's wife and she had a direct financial interest in the sales. The Applicant displayed those products in his rooms and admitted that he recommended their use to patients and sold the products to them. He admitted that he did not disclose to the patients who bought the products that there was little evidence of their therapeutic efficacy and when he sold a product to Patient A he did not provide her with sufficient information to allow her to make an informed choice whether to buy it.
The evidence of the peer reporter, Dr Ee was that the proffering for sale of these products raised two issues; the first being a conflict of interest and the second the lack of evidence of any efficacy of the oils. Dr Ee observed that the Applicant told his patients to whom he recommended them that his wife would benefit financially from the sale. Dr Ee said that the Applicant should have considered the conflict of interest more carefully because he was in a position of trust and influence and the sale indirectly benefitted his family.
The concern that the Applicant was displaying these products in his professional rooms and selling them was the subject of a complaint in 2017 by the Head of the Department General Practice at a university who had the responsibility of overseeing medical student placements with general practitioners. Two students who had been placed with the Applicant raised concerns about the doTERRA oils. One said that the Applicant was recommending supplements to patients and then selling them. Another student said that the Applicant assisted patients to log onto his wife's website in order to buy them.
The Applicant was notified of this complaint and in his reply he said that the products were organic and of the highest quality. He said that his patients knew that his wife had a financial interest in the sale of these products. He also said that the outcomes from the products were measured using blood tests and the like.
No further action was taken in relation to this complaint.
In relation to this aspect of the Tribunal's findings which found that in displaying and selling the oils, the Applicant's conduct fell below the accepted standard, the Applicant said that he now understands that his conduct in selling and encouraging his patients to buy the products was wrong because it had the potential to undermine the patient's trust in him as doctor and to cast doubt on his professional judgment. He said that when he received the complaint in 2017 he did not stop displaying the products because he said that he did not see the harm in it.
Dr Watson-Munro was asked in his assessment about this particular point and also about the Applicant providing his wife's website details to his patients. Dr Watson-Munro said that the Applicant suffered from low self esteem and has in the past acted wanting to please and felt that he had in the past, been unduly pressured. Mr Watson-Munro said that he believed that the Applicant had matured and has changed and he added that he believes that the Applicant has learnt from the experience
From his evidence, it is clear that the Applicant now understands the significant conflict of interest and potential abuse of power that could flow from him promoting those products.
[4]
Breach of professional boundaries
The Applicant admitted that during the consultation with Patient A he discussed his emotional and financial woes with her and partially undressed to show the patient a tattoo of a phoenix and of a lotus on his shoulder. He agreed that he explained the significance of them to the patient. He also said that he had shown the tattoos to other patients.
The Applicant admitted this conduct at the Tribunal proceedings. Before the Tribunal was the report of Dr Ee the peer reporter who set out the inappropriateness of this conduct and we have no reason to doubt that the Applicant now well understands the inappropriateness of his conduct.
In his evidence on the application, the Applicant said that it was wrong, and believed it arose from his private turmoil he said that at this time his "mental health had imploded" and he had not been aware of it.
[5]
Accepting work from a patient
When de-registration was looming, the Applicant spoke to Mr Gooniah about being employed by a long term patient and friend who conducted a very large company concerned with transportation of food. He referred to this as a "contingency plan". When he was de-registered, the Applicant tried several different jobs which he found were too physically difficult and, after speaking to his patient, a job was offered to him. The Applicant was employed on a contract basis to work in human resources. By all accounts the Applicant was very good at this job and was well liked and respected by those he dealt with.
Dr Samuels was critical of the Applicant for accepting the position because of the potential power imbalance between patient and practitioner and he was concerned that this played a role in the provision of employment to the Applicant. Dr Samuels felt it was a boundary violation.
In his evidence, the Applicant said he did not see any ethical problem arising from him seeking or accepting work from the patient because at that time he was no longer a patient because the Applicant had been de-registered. He said the patient is an astute businessman, the implication being the patient was not the sort of man to offer the Applicant work for non-commercial reasons. The patient wrote an affidavit in the proceedings eschewing that he had done so and said that at the time he offered work to the Applicant, an employee had left and there was a vacancy which would suit the Applicant's skills.
It seems to us that the point is not whether in fact there existed a power imbalance which arose from the doctor patient relationship but whether the Applicant turned his mind to the potential conflict. His evidence makes it clear that he had not. Dr Samuels said that had the Applicant continued with some psychological support, perhaps he would have discussed this prospect and the potential power imbalance. We note on this point however, that during his sessions with Mr Gooniah the Applicant raised the prospect of being employed by the patient if he was de-registered and there is no suggestion that Mr Gooniah raised any potential boundary violation or ethical difficulties with the Applicant then. It is to be expected that the discussion of the potential difficulty in this context has illuminated the issue for the Applicant.
[6]
The prescribing complaint
In his report, Dr Samuels observed that the Applicant tended to minimise this complaint and said the Applicant referred to having been "successful" in part of the Complaint which supported Dr Samuel's view.
We are disinclined to agree with Dr Samuels that the Applicant was minimising the seriousness of the Complaint. There is considerable force in the submission of counsel for the Applicant that looking at the totality of the Particulars of Complaint that were alleged against the Applicant in that Complaint, five of those particulars were found to be made out and of those, in three, the Applicant admitted the conduct and that it amounted to unsatisfactory professional conduct, in relation to one he admitted the facts but offered an excuse that was not accepted and in relation to one, he denied the particular and the Tribunal found it established. So, while others in the position of the Applicant may not have branded the outcome of that Tribunal hearing a" success", in the circumstances we do not regard it as "minimising" the seriousness of the conduct.
It is to be observed that the Applicant was required to undergo significant training in the use of opioids and the treatment of pain which he has done.
[7]
Other complaints
In the past, complaints, other than the two that formed the basis of the two Tribunal hearings to which we have referred had been received about the Applicant. There is no doubt that the Respondent is able to bring those matters to the attention of the Tribunal and to rely on them in their opposition to the application and it is thus necessary to examine them. (s163C National Law).
Between April and June 2000, the Medical Board received several complaints alleging significant and serious inappropriate conduct by the Applicant. The complaint asserted that the Applicant was prescribing medication for himself, "stormed out of the surgery carrying a gun", had sexual relationships with patients, usually drug addicted women, and that he rented a flat for a patient with whom he was having an affair.
This first complaint was followed by another raising similar issues; affairs with patients and a staff member, that the Applicant was using cocaine and amphetamines and alcohol and he was writing prescriptions for himself to be filled at the pharmacy in the building in which the practice was located.
Throughout the complaints were references to a drug addicted woman whom it was said was a patient and the Applicant's intimate partner.
The complainant declined to make a formal complaint and the Medical Board, in its own right, made a complaint which was investigated by the HCCC. The Applicant responded to the complaint through his solicitor.
The HCCC investigation found the complaints to be unsubstantiated. The report of the investigation noted that colleagues of the Applicant considered the allegations to be false and said that the Applicant was liked by patients and colleagues. The investigator was unable to contact the woman in respect of whom the Applicant was alleged to be having an affair nor other people who it was alleged the Applicant was romantically involved with and concluded that the complaint could not be substantiated. The Pharmaceutical Services Branch examined the Applicant's prescribing records and found nothing untoward.
The shotgun the Applicant was alleged to have carried through the surgery turned out to be an umbrella.
The complaint was dismissed.
In February 2004 the Medical Board received a complaint from a patient of the Applicant complaining about the side effects of taking medication prescribed for him by the Applicant which when he took it combined with alcohol caused him to drive erratically and crash his car.
The Applicant responded to the complaint and attached a copy of his clinical notes relating to the prescription which included advice to the complainant that the drug should not be taken with alcohol and that it may cause drowsiness. The Applicant also advised that the dispensing pharmacy routinely applies a fluorescent sticker on the package of the drugs warning of drowsiness and increase in effects of alcohol.
No action was taken in relation to this complaint.
In April 2008 a person complained that she attended the practice where the Applicant worked and complained of having a mild asthma attack and she said that she was having chest pains. She alleged that having told the Applicant that, he said "your case is so complicated and need lots of time and I don't have time. I will refer you to another doctor." The complainant waited for some time and when she had not been seen, left.
The Applicant responded to the complaint and noted that as he was finishing his shift he was approached by a person he assumes was the complainant who told him that she had asthma and wanted assistance. She did not tell him she had chest pains. He told her that he was finishing work and the next available doctor would see her. He said the matter was not a medical emergency.
No further action was taken on this complaint.
On 22 August 2011 a patient complained that the Applicant delayed in diagnosing his condition as spinal tuberculosis. The Applicant responded with copies of the patients records and said that the diagnosis of spinal TB was not able to be diagnosed at the relevant time and, as the notes record, the Applicant referred the patient to a consultant orthopaedic surgeon who ordered an MRI which showed a disc prolapse but did not show the spinal TB.
No action was taken in relation to this complaint.
Finally in 2017 the complaint about the Applicant's promotion of doTERRA products was received and referred to the HCCC. This is the complaint to which we have already referred.
The Respondent relied on these earlier complaints in conjunction with the Applicant's response to questions asked of him by Dr Samuels and Mr Watson-Munro and reflected in Mr Gooniah's notes to argue that the Applicant dishonestly sought to conceal the existence of the past complaints.
In Mr Gooniah's notes there is a reference: "25 years as a G.P. no complaints" and in his report he notes that the Applicant told him that he had had no complaints against him except for the one then being discussed. Dr Samuels recorded that he asked the Applicant whether he had had "professional problems in the past" to which the Applicant answered no, and Mr Watson-Munro noted a similar response.
The Respondent argued that a significant finding made by the Tribunal was that the Applicant was dishonest in his evidence and it was argued that that this defect has not been addressed as demonstrated by his denial of the earlier complaints.
While the Applicant agreed that these earlier complaints raised serious allegations against him including that he carried a gun through the surgery, said that he did not consider it or the other complaints to be of particular significance because they did not provide the basis of a formal complaint and so were not relevant to his situation when discussing it with Dr Samuels, Mr Watson-Munro or Mr Gooniah.
His position was not, in our view, unreasonable. Significant caution has to be adopted when considering the earlier complaints and whether they were sufficiently serious that the Applicant ought to have mentioned them and not to have mentioned them leads to a conclusion of dishonesty. The very extensive complaint about his sexual and other improper acts was unable to be substantiated. The Applicant said to the investigator that he believed the complaint emanated from a disgruntled ex-employee and there seemed to be collateral evidence to support that.
We do not accept that in not mentioning these complaints all of which were dismissed reflected the Applicant being dishonest. We have no reason to doubt that the Applicant believed they were not significant because they did not result in a formal complaint. Having regard to the complaints and the fact that the relevant authority did nothing more about them, the Applicant could reasonably have been justified in saying that he did not consider them relevant to the question of whether he had prior professional complaints.
But for the complaint about the doTERRA products to which we have already referred, we are of the view that the existence of these early complaints do not add materially to the issue to be decided in this matter.
[8]
Denial, Insight and reform of character- the sexual boundary transgression
The Respondent argued that while ever the Applicant maintains his denial of the sexual boundary transgression, he can have no insight into the cause of the behaviour that led to the complaint and thus cannot demonstrate to the Tribunal's satisfaction that he has reformed his character sufficiently to persuade the Tribunal that he should be reinstated.
As to whether the Applicant had developed insight into the conduct leading to cancellation, Dr Samuels referred to his continued denials of the sexual boundary transgressions and said that he did not really express a great deal of remorse in relation to the impact of his actions on the patient.
Mr Watson-Munro agreed that in order to gain insight into the matters which brought the Applicant to being de-registered, he needed to have an understanding of his behaviour and the causes for it. Where the behaviour is denied, there can be no insight into that conduct.
In Ng v Health Care Complaints Commission [2018] NSWCATOD 105, the Tribunal considered a reinstatement application by a practitioner who improperly digitally penetrated a patient during the course of an examination and whose registration was cancelled as a consequence. Dr Ng denied the allegation and maintained that denial notwithstanding the Tribunal's conclusion that he had acted as the Patient alleged.
In that case, the HCCC in opposing the reinstatement of Dr Ng argued that he had to demonstrate a "shift in character" to satisfy the Tribunal that the defects in character which led to the deregistration had been addressed.
The Tribunal said:
43. The question of character is central to the current proceedings. The Commission argues that Dr Ng must demonstrate a "shift of character". This implies that a person's character lies somewhere on a spectrum or a line on a graph and that by some form of therapy, psychological or psychiatric treatment or personal resolve that character can be shunted back up the line or spectrum to the more virtuous end.
44.We are doubtful that such characterisation is helpful in assessing whether a person has a "good character". This is a simplistic, mechanical approach to human psychology that is inconsistent with the realities of human experience and behaviour. …
As to the argument that there can be no insight without admission, the Tribunal in Ng said:
47. … We do not have to either accept or reject his denials. We simply note them. What is more important in our view is that he has given long and deep thought to the incident and its effect on the patient and is deeply remorseful for the distress it caused her.
We find ourselves in agreement with the Tribunal in Ng. It must be closely borne in mind that this application calls for an assessment of the risk the Applicant might pose to the health and safety to the community if he was to be permitted to practise. The determination of that question is, in our opinion, far more nuanced than the question "has the Applicant reformed his character?" would admit.
[9]
Future Risk
In assessing the future risk of the Applicant returning to practice it is useful to consider the professional context in which the breaches occurred.
At the time of the consultation with Patient A, the Applicant's life was in chaos and he was under huge stress in his personal life.
Mr Watson-Munro spoke of that period and said that the Applicant now appreciates the amount of stress under which he was functioning and which led to the breaches for which he was de-registered. He said it was generally accepted that where a person is highly stressed, depressed and anxious and with low self-esteem, this impacts on judgment and consequential thinking, failing to take a long term view impulsive behaviour and exercising poor judgment. Under these circumstances, it is Mr Watson-Munro's opinion that the Applicant's judgment "faltered".
The conduct in the consultation with Patient A viewed through the lens of the stresses and pressures on the Applicant at the time in our view explains his professional lapses.
However, the question is, if in the future, the Applicant came under like or equivalent stresses he would again exercise poor judgment and breach his professional obligations.
The Applicant said that the time in which he has not been permitted to practise has allowed him to reflect on his life and his practice and he feels that he is more mature. So much was the view of Mr Watson-Munro.
The Applicant had some psychological support from Mr Gooniah at the time of the consultation with Patient A and said that he derived considerable help from that. He stopped that counselling when Mr Gooniah said there was no more work to be done. The Applicant said that if he was allowed to return to practice he would engage in counselling with a psychologist to help him deal with the pressures of reintroduction of practice and any other stresses that may occur from time to time.
In relation to the breaches that the Applicant admitted, there seemed to be no significant challenge that he had thought about his conduct and understands its gravity and consequences both for his patient but also for him as a medical practitioner.
The prescribing breaches were not, it seems, associated with particular life stress, and occurred over a period of 8 months between 2018 and 2020. That the Applicant admitted some of the Particulars, being almost all of those found established by the Tribunal, in our view displays insight and acceptance. He has completed a significant number of education modules around prescribing narcotic analgesia and in dealing with patients with chronic pain. It was not suggested in the prescribing complaint that the Applicant had previously been sanctioned for the way he prescribed drugs of addiction. Drugs of addiction are highly restricted and can only be prescribed under certain circumstances for good reason and any breach of the rules and requirements of prescribing of those drugs must be taken seriously. However in this regard, we accept that the Applicant accepted liability, acknowledged fault and took steps to improve his understanding.
At this application, the Applicant said that he had no interest in prescribing those drugs again and is content if that restriction remained on his registration if he is restored.
Of course, the imposition of restriction, per force, means that the breaches in relation to which the Applicant was found to have displayed unsatisfactory professional conduct cannot be repeated and in this regard, the health and safety of the public would be assured. However, we are of the view that even without the restrictions being placed on his registration, that he has completed courses and his evidence is such that it is probable that he would not prescribe contrary to the rules again.
It is also important to consider these breaches in the context of the Applicant's conduct as a medical practitioner over time. Mr Gooniah noted the Applicant as saying that he had 25 years of practice without a complaint. While that assertion was the subject of submission by the Respondent, in our view but for the complaint about promoting his wife's products, he had practised without formal complaint. His conduct which became the subject of the two HCCC complaints may be properly regarded as isolated events occurring over a long period of practice. The evidence does not support a conclusion that the Applicant had a history of breaches of professional standards.
Equally in relation to his breaches of professional boundaries in discussing his private life and displaying his tattoos, the Applicant through his evidence and through the evidence of Mr Watson-Munro clearly appreciates the degree to which he failed in his conduct as a medical practitioner.
We then come to the particulars of the sexual boundary violation complaints which are denied by the Applicant. There can be no doubt that the Applicant has spent time considering this aspect of the complaint and while he considered the Tribunal to have erred in finding that particular proved, he was well able to understand from the patient's point of view how her experience of what occurred in the consultation would have affected her, and how his denial and defence which challenged her mental state, would have compounded her feelings.
We do not accept the Respondent's submission that without admission there can be no insight and thus no satisfaction that the conduct will not occur in the future. We are satisfied that the Applicant does understand the impact and consequences of what the Patient said occurred. Dr Samuels said being de-registered has been a salutary lesson for the Applicant and he did not believe that he would cross professional boundaries, including the sexual boundaries, especially with the gender-based restriction on his registration.
The evidence persuades us that if the Applicant was permitted to continue to practise medicine again he is not likely to again breach his professional boundaries and is a fit and proper person to practise medicine and will in the future practise in a competent and ethical manner.
The Applicant proffered extensive conditions which he would agree to be placed on his registration should he be permitted to be registered. Ultimately a set of conditions was proposed and agreed as appropriate by both the Applicant and the Respondent in the event that the Tribunal considered the Applicant could seek to be registered. Those conditions provide a level of support for him and around his practice which the Tribunal regards will provide for the health and safety of the public. This document is attached to these reasons as Annexure A
We are thus of the view that the Applicant is a fit and proper person to practise medicine and the health and safety of the public will be protected by the imposition of the proposed conditions.
The Tribunal will order that the Applicant may apply to be reinstated to the register of medical practitioners subject to the practice and health restrictions contained in Annexure A.
It was conceded on behalf of the Applicant, that if the application succeeded, he would pay the Respondent's costs. The Tribunal will order the Applicant to pay the Respondent's costs.
[10]
Orders
1. Pursuant to s 163(1)(c) of the Health Practitioner Regulation National Law (NSW) 2009 the Applicant Raymond Morsingh may apply to the Medical Board of Australia for registration to reinstate him to the register of medical practitioners subject to the practice and health conditions listed in the appendix to this decision.
2. The Applicant to pay the Respondent's costs of these proceedings as agreed or assessed.
[11]
Appendix - Raymond Morsingh December 2024 (109278, pdf)
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: 12 December 2024
Parties
Applicant/Plaintiff:
Morsingh
Respondent/Defendant:
Medical Council of New South Wales
Cases Cited (11)
REASONS FOR DECISION
On 16 February 2021 the NSW Civil and Administrative Tribunal on Complaints brought by the Health Care Complaints Commission ("the HCCC"), found Raymond Morsingh ("the Applicant" guilty of professional misconduct. (HCCC v Morsingh [2021] NSWCATOD 13). On 2 March 2022 that Tribunal ordered that the Applicant's registration as a medical practitioner be cancelled and he not seek a review of that order for a period of two years from the date of the orders. (HCCC v Morsingh (No 3) [2022] NSWCATOD 28).
By application filed on 26 April 2024 the Applicant now seeks that the cancellation of his registration be reviewed.
The Applicant was first registered as a medical practitioner in January 1994 and until his registration was cancelled, practised as a general practitioner at a Medical Centre.
The Complaint by the HCCC arose out of a consultation on 18 November 2018 with a patient of the Applicant's practice, Patient A. Patient A said that she was experiencing pain and tingling in her right upper and lower cheek. She had had this for some time although not constantly. As we will develop later in these reasons, during the consultation, the Applicant breached sexual boundaries by touching her breasts, conducted an inappropriate examination, breached professional boundaries in his conversation with and comments to the patient, partially disrobed to reveal tattoos on his left shoulder and inappropriately displayed and provided for sale aromatherapy products which delivered a financial benefit to his wife and indirect financial benefit to his family informing the patient of the lack of evidence for the efficacy of such products.
Following the making of the complaint by Patient A, on 16 January 2019, the Medical Council of NSW convened a s150 Panel which was held on 17 July 2020. In the result, the Panel imposed conditions on the Applicant's registration namely:
1. Not to consult, examine, treat or perform any procedures on any female aged 12 years and above;
2. To practise only in a group practice approved by the Medical Council of NSW where there are at least 2 registered medical practitioners (excluding the Applicant) and always one registered medical practitioner on site; and
3. To practise under Category C supervision in accordance with the Medical Council of NSW Compliance Policy.
The Applicant practised in accordance with those conditions without issue until his registration was cancelled on 2 March 2022.
The Applicant said that if he was permitted to be re-registered, he would accept the continuation of those conditions on his registration.
The Medical Council of NSW opposed his re-instatement.
Legislative framework and legal principles
The expiration of the non-review period of the order cancelling his registration enabled the Applicant to seek a review of the order pursuant to s163A of the Health Practitioner Regulation National Law ("the National Law").
In conducting the review, the Tribunal is to inquire into the appropriateness of the order cancelling the Applicant's registration which is to be assessed at the date of the hearing s163C. That is, the inquiry is to the Applicant's present fitness to practise.
If an order for reinstatement is made, it is then for the Applicant to apply to the National Board for registration. Whether an applicant is then registered is determined by the National Board if, in its opinion, the applicant is suitable to hold general registration in a health profession. The concept of suitability comprehends whether an applicant is a fit and proper person to be registered.
Central to the determination of the application are the provisions of s3A and s3(2)(a) of the National Law. S3A provides that the paramount consideration of the National Law is the protection of the health and safety of the public. One of the objects of the law set out in s3(2)(a) is to ensure that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered.
The purpose of the review is not to punish the Applicant (Zepinic v Health Care Complaints Commission [2020] NSWSC 13 at [85]). Rather, the jurisdiction is exercised for the protection of the public. There is no public interest in forever denying a former practitioner the chance of redemption and rehabilitation: Dawson v Law Society of NSW [1989] NSWCA 58 at per Kirby P at [17].
The Applicant bears the burden of satisfying the Tribunal that he is a fit and proper person, suitable to hold registration, and is able to practise in a competent and ethical manner.
In Qasim v Medical Council of NSW [2021] NSWCA 173 at [18] the court said:
… An applicant for reinstatement bears the onus of demonstrating that he or she can be trusted to practise in a way that conforms to the professional standards expected of a health practitioner and presents no risk to the safety of the public and their confidence in the profession.
In Re Mansoor Haider Zaidi [2006] NSWMT 6 ("Zaidi"), at [42] the Medical Tribunal set out the relevant principles to be applied in considering an application for reinstatement and said of that onus:
It is a heavy onus and the question whether the applicant is a fit and proper person, is one to be trusted to exercise the high responsibilities of the profession is one to be determined on solid and substantial grounds
The boundary violation complaint
On 25 June 2020 the HCCC filed a Complaint seeking disciplinary findings and orders in relation to the Applicant arising from the Applicant's conduct in a consultation which took place on 29 November 2018 with a patient, known as Patient A.
In broad, this complaint comprehended acts which could properly be described as sexual boundary transgressions; breach of professional boundaries; and inappropriate conduct in offering aromatherapy products for sale in his rooms. The Applicant denied the particulars of the complaints as they related to the sexual boundary transgressions but admitted the other particularised conduct.
On 18 February 2021 a Tribunal found the particulars to the complaint made out and found the Applicant guilty of professional misconduct. In assessing whether the HCCC had established the particulars to the Complaint, the Tribunal formed the view that the Applicant was an unimpressive witness, was evasive and distracting and changed his account of the circumstances from time to time. The Tribunal considered the Applicant's changing account of the conduct of the consultation indicated dishonesty. They preferred the evidence of Patient A to that of the Applicant.
When the Tribunal came to consider what protective orders should be made consequent on their finding of professional misconduct, in the course of the Tribunal's reasons for its decision to cancel the Applicant's registration, the Tribunal summarised the complaints and supporting particulars which formed the basis of the finding of professional misconduct as follows and it is useful in this context to set out those findings:
3. The allegations in the application to the Tribunal all directly concerned a consultation which occurred on the 29 November 2018 between Dr Morsingh and Patient A. At the time, Patient A was 28 years old, and Dr Morsingh had been practising as a General Practitioner for 24 years. Patient A had been a patient of the practice Dr Morsingh was working in from 2007 - 2014, but the consultation on 29 November 2018 was her first consultation at the practice since 2014.
4. Complaint 1 in the application was a complaint of unsatisfactory professional conduct. The particulars of Complaint 1 were as follows (in summary):
(1) That the practitioner examined Patient A's breasts when his initial diagnosis was trigeminal neuralgia, the examination was not clinically indicated, the practitioner did not explain why the examination was necessary and the practitioner did not obtain informed consent to conduct the examination.
(2) During the breast examination, the practitioner breached sexual boundaries when he slid his hand inside Patient A's shirt and pressed a point at the top of her breast whilst saying "I love doing this point on women, they always hold a lot of tension here".
(3) The practitioner conducted an inappropriate examination of Patient A's neck and shoulders when he pressed acupressure points without taking a history of neck pain, without explaining why he needed to check for tenderness in Patient A's neck and shoulders and without obtaining informed consent prior to conducting the examination.
(4) The practitioner continued the neck and shoulder examination of Patient A, saying words to the effect of "I need to keep checking the rest", when Patient A was emotional and crying and the practitioner should have ceased the examination.
(5) The practitioner breached professional boundaries when he commented on Patient A's physical appearance and said words to the effect of the following:
(a) "People in India must be mesmerised by your eyes",
(b) "You really have the most beautiful eyes, I've always told you that. You have beautiful eyes", "Are you a hippy now?".
(6) The practitioner breached professional boundaries in that he partially disrobed in front of Patient A to reveal a phoenix and lotus flower tattoo on his left shoulder in circumstances where Patient A advised the practitioner that she did not want to see his tattoo and there was no clinical reason for the practitioner to show Patient A his tattoo.
(7) The practitioner breached professional boundaries in that he disclosed personal information to Patient A, including his separation from his wife, the fact that he had twins, that his wife is trying to turn the twins against him, that he had been reborn and risen as a phoenix and his tattoo was a representation of this and that the lotus flower tattoo on his left shoulder represented his wife/ex-wife.
(8) The practitioner inappropriately displayed doTERRA oils and diffusers for sale in his consulting rooms, and his wife/ex-wife received a financial benefit, through commission, from the sale of the oils and diffusers and there is a lack of evidence for the efficacy or aromatherapies.
(9) The practitioner failed to provide adequate information and explanation to Patient A regarding the paucity of evidence in relation to the use of aromatherapies to enable Patient A to give proper informed consent in relation to the purchase and use of doTERRA oils.
(10) The practitioner breached professional boundaries by hugging Patient A when Patient A did not initiate the hug, was not a regular patient of the practitioner's and had already told the practitioner earlier in the consultation to stop touching her.
(11) By reason of particulars 1, 2, 5, 6 and 10 individually or in any combination, the practitioner engaged in inappropriate conduct of a sexual nature towards Patient A.
5. Dr Morsingh admitted particulars 6, 7, 8 and denied particulars 1, 2, 3, 4, 5, 9, 10 and 11 of Complaint 1The Tribunal found all of the Particulars of the Complaint made out and found the Applicant guilty of professional misconduct.
The prescribing complaint
On 4 August 2023, a differently constituted Tribunal concluded a complaint brought by the HCCC against the Applicant concerning his prescription of Schedule 8 and Schedule 4D and 4B drugs to 6 patients. (HCCC v Morsingh [2023] NSWCATOD 118).
The Pharmaceutical Services Unit's investigation of the prescribing complaint and its conclusions were considered at the s150 hearing which was convened on 17 July 2020, which also considered the boundary violation complaints. In relation to the prescribing complaints, on 5 August 2020 conditions were placed on the Applicant's registration that he not possess, supply, administer or prescribe any drug of addiction listed in Schedule 8 of the Poisons and Therapeutic Goods Act nor to possess, supply, administer or prescribe drugs of addiction listed in Schedule D to that Act. He was also prohibited possessing, supplying, administering or prescribing testosterone.
The Applicant said that if he was reinstated to practice he would consent to those conditions remaining on his registration.
Of the Particulars of the Complaint, the Applicant admitted Particulars 1.4, 1.9 and 1.13. He admitted the facts of Particular 1.8 but argued that it did not amount to unsatisfactory professional conduct. The Tribunal found those Particulars made out and also found Particular 1.12, which the Applicant had denied, established. The balance of the particulars of the Complaint were not established.
Particular 1.4 concerned the Applicant's prescription of a Schedule 8 drug, alprazolam, without having the necessary authority from the NSW Ministry of Health. The circumstances of the prescribing as accepted by the Tribunal were that another practitioner had been prescribing alprazolam for the patient and when the Applicant took over the patient's care, on five occasions, he continued to prescribe that drug for the patient. The Tribunal accepted the opinion of the peer reporter that in relation to the first three prescriptions it was reasonable for the Applicant to write them because the patient was awaiting a psychiatric review and an appointment with a pain specialist. While the Applicant's notes indicated in relation to the final two prescriptions that he was trying to wean the patient away from alprazolam, the peer reporter said while that was a reasonable plan, prescribing without authority fell significantly below the expected standard.
Particular 1.8 concerned the prescription of testosterone in circumstances where the Applicant failed to undertake accurate pathology testing and refer the patient to a specialist in relation to the patient's use of testosterone. The Applicant admitted the conduct and agreed he ought not to have prescribed in those circumstances but said it did not amount to unsatisfactory professional conduct because he was under duress from the patient to prescribe. While the Tribunal did not accept that the Applicant was placed under duress by the patient, they accepted that he felt pressured by the patient to prescribe and found the particular established.
The Applicant must displace the decision for deregistration that has been made and must provide clear proof to establish that there has been a reformation of character. Zepinic v Health Care Complaints Commission [2020] NSWSC 13 at [85].
The Tribunal in Zaidi said
3. The ultimate issue is whether the Tribunal can conclude on the basis of all the evidence that an applicant is now a fit and proper person to join other members of an honourable profession in the responsible and trusted activities which are involved in the work of the medical profession, what is at stake is not so much the reputation of the applicant but the Tribunal's assessment of his character, uprightness, honour and trustworthiness.
The power must "be exercised with the greatest of caution and only upon solid and substantial grounds": Jan v Health Care Complaints Commission [2021] NSWSC 350, at [67].
The assessment of the potential risk of future harm may draw from what has happened in the past and what in particular led to the applicant being removed from the register. In Re Jason Martin [2010] NSWMT 13 the Medical Tribunal said:
4. … It is a question of his [her] worthiness and his [her] reliability for the future." That Tribunal noted the difficulty associated with predicting how a practitioner would behave in the future and remarked "the decision in the particular case is to a greater or lesser extent dependent upon the Tribunal's assessment of the applicant".
As ADCJ Hennessey said in Mooney v Medical Council of NSW [2024] NSWCATOD 24 at [18]:
Several formulations have been put forward as ways of predicting how a person will behave in future. Have they gained insight? Have they proved that they have overcome a defect in character? Are they now a 'fit and proper person' to be registered? Essentially the question is whether Mr Mooney has proved that he can be trusted to practise in a way that conforms to the professional standards expected of a health practitioner and presents no risk to the safety of the public and their confidence in the profession: Ameisen v Medical Council of New South Wales [2015] NSWCATOD 49 at [24].
It is against these statements of principles that we consider the question of reinstatement.
It is appropriate therefore to start with the acts identified in the Tribunal findings that led to the Applicant's deregistration and it is necessary to set out at some length the conduct concerned and the findings of the two Tribunal hearings.
Turning then to the gravity of the proved conduct, the Tribunal referred to the Medical Board of Australia's document "Guidelines: Sexual Boundaries in the Doctor-Patient Relationship" where it says:
Doctors are expected to act in their patients' best interests and not use their position of power and trust to exploit patients physically, sexually, emotionally or psychologically. Breaching sexual boundaries is always unethical and
usually harmful for many reasons ...
The Tribunal continued:
49. The Guidelines state propositions which should be obvious to a general practitioner with 24 years of experience, such as Dr Morsingh, which is that there is a power imbalance between a doctor and a patient, in the doctor's favour, and that patients place trust in their doctors and are entitled to expect that an examination will only be undertaken in their best interests and never for an ulterior, sexual motive.
50 The trust of patients in their doctors contributes to the health of the community, in that a patient with trust is more likely to seek medical advice and assistance in the event of illness.
51 Patient A's consultation with Dr Morsingh on 29 November 2018 was not used by Dr Morsingh, as it should have been, to meet and address her health needs and concerns. Instead, Dr Morsingh leapt to a diagnosis of trigeminal neuralgia. He has subsequently conceded that this was a wrong diagnosis. Patient A did not have trigeminal neuralgia. Despite communicating the diagnosis to Patient A, Dr Morsingh took few of the steps which would be expected following such a diagnosis. He did not write a referral to a neurologist. He did not undertake a targeted examination. He did not prescribe any medication, or schedule a follow-up appointment. He simply handed Patient A an information leaflet.
52. Rather than address and meet Patient A's health needs and concerns, Dr Morsingh conducted a physical examination which did not substantially relate to Patient A's symptoms. He did this without Patient A's consent and without rational explanation.
53. In the course of the physical examination, Dr Morsingh pressed the outside of Patient A's breasts with his fingers, under her t-shirt. Patient A described this pressing as 'very painful'. She told him to stop, saying "no, no, stop". He did stop, briefly, but then resumed touching her, despite the fact that she was crying to an extent that Dr Morsingh himself described to us in evidence as "a wealth of tears". He again pressed the outside and the top of her breasts, causing her to recoil in pain (see Morsingh Stage 1 at [9]).
54. Following the 'examination', Dr Morsingh gave Patient A a bottle of doTerra essential oil and texted her a link to a website through which she could buy essential oils in a manner which would earn Dr Morsingh's wife/ex-wife a commission. Dr Morsingh did not disclose his financial interest in the doTerra essential oils. He gave her no information about the lack of evidence of any therapeutic effectiveness of the product. Dr Morsingh partially disrobed and showed Patient A his tattoo, despite her saying that she did not want to see it. He spoke about himself and his family problems. He hugged Patient A and made personal remarks about her appearance.
….
56. Instead of meeting Patient A's medical needs and concerns in the consultation on 29 November 2018, Dr Morsingh used the consultation to indulge his own social and sexual inclinations, and even tried to interest Patient A in buying essential oils, in circumstances where his wife/ex-wife would profit.
57 These factors, alone, make Dr Morsingh's actions sufficiently serious to justify suspension or cancellation of his registration as a medical practitioner.
58 Dr Morsingh has persistently denied that he pressed Patient A's breasts in the course of the 'examination' and that he hugged her at the end of the consultation. His account of his touching of Patient A during the consultation, and his stated rationale for his 'examination', has changed several times in the course of the investigation of the complaint and the processes under the National Law. He has denied that he made the comments alleged in Complaint 1 particulars 2(b) and 5.
59. Instead of admitting his conduct, and addressing the reasons for it, Dr Morsingh has sought to escape culpability by discrediting Patient A. In giving evidence before us in Stage 1 of these proceedings, Dr Morsingh sought implicitly to discredit Patient A by referring to her 'alternative lifestyle' and by saying that "she discussed about smoking of cannabis", despite the fact that there was no entry in his notes about the smoking of cannabis (see transcript p 41).
61. In the conduct of his case in Stage 2 of these proceedings, Dr Morsingh did not allege that Patient A had been untruthful about her account of the consultation, but, instead, put forward a case which suggested that Patient A experienced a psychiatric event during the consultation with him. Dr Nielssen, a psychiatrist, was called in Dr Morsingh's case, presumably on Dr Morsingh's instructions. In summary, Dr Nielssen discussed the theoretical possibility that a person in high distress might form an inaccurate memory on account of a misinterpretation of an event which was occurring. Alternatively, Dr Nielssen theorised, Patient A may have had a flashback which caused her to conflate what was happening with Dr Morsingh with a sexual assault she had experienced previously. Such a flashback would be associated with a personality disorder or a psychiatric condition. Dr Nielssen agreed, in cross-examination, that he had never examined Patient A, that he was not present at her consultation with Dr Morsingh on 29 November 2018 and that he was therefore unable to say what had happened in the consultation. There is no evidence that Patient A suffers from any psychiatric condition or personality disorder. Dr Nielssen's evidence was purely theoretical information having no basis with respect to Patient A. In Morsingh Stage 1, we rejected the suggestion that either of his theories applied to Patient A (see Morsingh Stage 1, [56]-[63]). In cross-examination, Dr Nielssen agreed that the evidence before the Tribunal did not support either of his theories with respect to Patient A.
62. Choosing to conduct his case by attempting to deflect blame onto Patient A by alluding to her 'alternative lifestyle' and the smoking of cannabis, and by putting forward psychiatric evidence to imply that Patient A suffered from a psychiatric condition or personality disorder, adds to the seriousness of Dr Morsingh's conduct. It is wholly inconsistent with the care for a patient expected of a medical practitioner.
Thus, the Tribunal ordered that the Applicant's registration be cancelled and that the order for cancellation not be reviewed for 2 years from the date of the order.
The Applicant sought leave to appeal the decision of the Tribunal to the NSW Court of Appeal which was heard and dismissed on 28 June 2022. (Morsingh v Health Care Complaints Commission [2022] NSWCA 106).
Particular 1.9 concerned the Applicant's prescription of diazepam to a patient without undertaking an appropriate history, performing an appropriate examination or investigating the patient's long-term use of the drug. He did not prepare a plan for the long-term management of the prescription of diazepam to the patient nor seek advice from a specialist, neither did he consider that the patient was on the Opioid Treatment Program when prescribing diazepam over a long term. The Particular also contended that the Applicant did not make timely referrals to specialists in relation to the patient's use of diazepam. The Applicant admitted the conduct and admitted that it amounted to unsatisfactory professional conduct.
Particular 1.12 concerned the prescription of a Schedule 8 drug, oxycodone, and Schedule 4D drugs diazepam, oxazepam and tramadol in combination to a patient with severe respiratory co-morbidity. The Applicant agreed he had prescribed those drugs but said that they had been first prescribed by specialists who were aware of their prescription in combination. He denied his conduct amounted to unsatisfactory professional conduct. The Applicant agreed that it was his responsibility to assess and form an opinion about prescribing medication. The Tribunal found that the Applicant ought to have been aware of the dangers of prescribing narcotics in combination with benzodiazepines and found this particular proved.
Complaint 1.13 concerned the prescription of zolpidem (Stilnox) to a patient where the Applicant failed to recognise and or diagnose the patient's excessive use of and addiction to the drug, failed to treat the patient's insomnia by means other than pharmaceutical, failed to provide a management plan for prescribing the drug and failed to make a timely referral to a specialist to treat the patient's insomnia. The Applicant admitted this conduct and admitted that it amounted to unsatisfactory professional conduct.
On the basis of the proven Particulars, the Tribunal found that the Applicant's proven conduct amounted to unsatisfactory professional conduct.
It was accepted that drugs of addiction to which Schedule 8 and Schedule 4D refer are subject to stringent prescribing protocols and standards because of their propensity for addiction, misuse and diversion.
In determining the seriousness of the proved conduct, the Tribunal said that it "did not quite meet" the level of seriousness necessary for a finding of professional misconduct. The Tribunal ordered:
1. Under s149A(1)(d) of the Health Practitioner Regulation National Law (NSW), Mr Morsingh must complete an educational course on prescribing Schedule 8 and Schedule 4D medications
2. Under s149A(3) of the Health Practitioner Regulation National Law (NSW), Mr Morsingh is prevented from being registered unless Order 1 is complied with.
At the time these orders were made, the Applicant was no longer registered as a medical practitioner.
The Applicant said that he completed the nominated educational course immediately after the Tribunal published its reasons.