Vigours v Medical Council of NSW

Vigours v Medical Council of NSW - [2019] NSWCATOD 75 - NSWCATOD 2019 case summary — Zoe

[4]

Patient A

The applicant was in a personal relationship with Patient A from about January 2014 to October 2014. Patient A is a German national who was backpacking in Australia when she met the applicant. She returned to Germany prior to the hearing before the original Tribunal.
In February 2014, the applicant was in the first month of his internship at P Hospital. Patient A, with whom the applicant was living, was experiencing recurring urinary tract infections. Patient A alleged that the applicant gave her a quantity of Cephalexin, an antibiotic, which he took from P Hospital. It was alleged in Complaint One that the applicant did not create a proper clinical record and nor did he undertake a proper clinical assessment and investigation with respect to Patent A. He did not take a full history and nor did he conduct an appropriate examination.
The applicant denied that he had supplied Patient A with Cephalexin in the manner alleged or at all. His evidence on the question will be discussed in more detail below, when we turn to a similar allegation with respect to Patient B.
After some confusion as to dates, Patient A produced to the original Tribunal pages from her journal from 16 January to 6 February 2014. Patient A had recorded in her journal that on 29 January 2014 she messaged the applicant asking for him to bring her home something for a UTI (urinary tract infection). In her journal, she recorded that, when the applicant came home from work, he gave her Cephalexin. Patient A gave evidence that the box of Cephalexin was labelled with someone else's name.
The Tribunal said: In relation to particular 1 of Complaint One the practitioner said in his cross-examination that he did not have access to Cephalexin. That was the first time that he raised that defence to particular 1. He said that he was still in his orientation as an intern and did not have access to Cephalexin in the hospital. When he was asked why it was that it was not until the hearing that he said that he was in orientation and raised this proposition and he said that he had thought it was only for February. He was asked whether he was now saying that the week before February he did not have physical access to such medication. He avoided the question. Eventually he agreed to that proposition. But it appears from other evidence that his orientation as an intern commenced in mid-January and continued into February. 191 He was then asked why he said in his statement that he said in his letter of 29 January 2016 to the Health Care Complaints Commission in reply to its letter of 4 October 2016: "I did not steal another patient's antibiotics in order to treat [Patient A]. It is not in my character to deprive another patient of needed treatment in order to treat a personal acquaintance." 192 He was asked why he said that if the answer to the allegation was that he did not have physical access to the relevant medications, as he alleged in his cross-examination on 21 September. When he was asked why he raised that defence he said that it was implied. He denied it was his "guilty mind". 193 He denied that he was "in the habit of getting medication for girlfriends".
Ultimately, the original Tribunal found that Patient A was a more reliable witness than the applicant. The Tribunal was satisfied that the applicant had supplied Patient A with Cephalexin in the manner alleged.
On 11 February 2014, Patient A went to the Emergency Department of P Hospital. She was examined by two medical practitioners, one of whom was the supervising doctor for the Emergency Department. Both of those doctors decided that Patient A did not need a blood test on that occasion. Without consultation with the doctors who had examined Patient A, the applicant then took Patient A's blood, in another part of P Hospital, and ordered tests in the name of another doctor. The applicant was not, at the time, rostered on.
Prior to the hearing before the original Tribunal, the applicant made a statement to the HCCC that he had never treated Patient A at the P Hospital. In evidence before the Tribunal, the applicant justified this statement by explaining that he did not see the taking of blood as treatment, but as "procedural".
The applicant sometimes asserted that Patient A had asked him to take her blood, but at other times said that it was his suggestion. In a letter dated 4 October 2016 to the HCCC, the applicant said, of the taking of blood: At no point did I attempt to interpret her results or guide clinical management…
In his written statement for the original Tribunal, the applicant repeated that statement. The original Tribunal found the following: In cross-examination his [ie the applicant's] attention was drawn to his previous statements that he had never treated Patient A at the P Hospital. When he was asked: "What did you think taking blood was?" To which he replied: "A procedural task; not treatment. I saw my role as similar to a phlebotomist taking blood." When he was asked whether he still thinks that it was not treatment, he did not respond. He was asked a second time and answered: "No". He said he had previously seen it as a clinical procedure and not treatment. 117 He conceded that he asked her: "Would it help if blood were taken?" and she answered: "Yes". He said that she therefore asked him to do it. He denied that was misleading to say she asked him to do it. 118 He denied that he was involved in her "clinical management" and said that he thought taking blood was "procedural". He conceded that he did interpret the results for her. His attention was drawn to his statement in his letter of 4 October 2016 to the Health Care Complaints Commission: "At no point did I attempt to interpret her results or guide clinical management ….." 119 In his statement of 9 August 2017 he said: "At no point did I attempt to interpret her results or guide clinical management". He was asked in cross-examination who the Emergency Department staff member was that he spoke to about using the equipment and facilities to take Patient A's blood. He said: "I can't say". 120 He was asked how he could say it was a clinical person and he said: "They were "wearing clinical clothing". He later said that by "ED staff" he was referring to one of the triage nurses. He said the person said they would go to see the Emergency Department doctors or "one of the Emergency Department doctors". He did not see that staff member consult either of the doctors on duty who had seen Patient A. He said that it would be good to take blood for testing as it would "overcome the patient's distress and calm her down". 121 In paragraph 16 of his statement of August 2017 the practitioner said that: "I cannot recall if it was the doctors in the Emergency Department at [P Hospital] or Patient A who contacted me asking me to attend on Patient A. When I attended on Patient A she appeared distressed and upset. She was refusing to leave unless there was more done for her." This version is quite different to the version of Patient A who says that he joined her while she was still with the ED consultant and then he and Patient A moved to the waiting area. 122 He said in paragraph 17 of that statement: "and I placed the blood test results, when they became available, in a sealed envelope and gave them to Patient A". He said: "I did not review the results. I told Patient A that she should take them to her general practitioner to discuss" but in cross-examination he conceded that he may have sat down with Patient A and reviewed the blood results." He said: "Possibly we opened them up and discussed them". When he was asked why he did not say that in his statement, he said: "I had no recollection". Again when he was asked why he did not say it in his statement, he avoided the question. It was put to him that he twice denied that he reviewed the results and he answered: "Because when I later recalled the incident I then recalled. I don't usually hand deliver blood results." 123 The practitioner appeared to have difficulty conceding that he raised pancreatitis as a possibility. He initially denied reading the results and had trouble discussing the test and then conceded reading them and discussing them with Patient A, but denied suggesting pancreatitis as a possibility.
The original Tribunal further found: The results of the blood test taken at the hospital on 11 February 2014 show that the referral of the blood for tests by a Dr Alan Forrester, [sic] which it appears on the evidence was probably a senior doctor in the emergency department or in the hospital generally. It appears that the practitioner, when submitting the haematology request, chose to make the request in the name of Dr Forrester. Presumably as an intern in his first month, the practitioner's work was required to be supervised by a more senior practitioner. The test request forms do not show the practitioner's name as the person referring the blood for testing nor as the person who collected the blood. 130 Patient A said she had previously also seen another general practitioner in the general area of the P Hospital. She said, though, that she didn't attend any other health practitioner after that because she relied on the practitioner because of their close personal relationship. She conceded that the other doctor she had consulted in the area did not prescribe anything for her and probably told her to come back if she had any further problems. She said that she also saw him in April 2014 after her injury to her left knee and he concluded that she should continue to come back to see him in two (2) weeks if the knee was still a problem. She went back to see him. The knee was still causing her some pain, but not as bad as before. He ordered a scan of the knee. It apparently did not disclose any further problem. She said she didn't go back to see him a month later. She denied that the practitioner kept telling her to go to her GP. 131 On 11 February 2014 less than a month into the practitioner's internship, when he was cohabiting with Patient A and in an intimate relationship, without supervision by a more senior practitioner, and without consulting either of two practitioners who had decided not to take blood from patient A for testing, and when he was not acting within his duties at the P Hospital, the practitioner took blood from Patient A and arranged for it to be tested. He made no clinical record. In his reply dated 18 September 2017, the day before the hearing commenced, the practitioner denied that it was inappropriate for him to take blood tests from Patient A as he did. But in oral evidence in chief on the morning of the second day of the hearing he amended the reply to admit that the conduct was inappropriate. 132 The surrounding circumstances were such that his conduct was inappropriate. Dr Christie also opined that his conduct was significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience applicable at the time of the conduct. 133 His conduct was clearly unsatisfactory professional conduct. Complaint One Particular 3 - Patient A - communicating blood test results 134 When the practitioner on 11 February 2014 took blood from Patient A and caused tests on the blood, he did not carry out any clinical assessment or investigation for the hospital file or at all. He did not read the hospital file. He did not make any clinical notes. Whereas he had in his reply dated 9 August 2017 denied that he inappropriately communicated the results of the blood test to Patient A, on the second day of the hearing he admitted that it was inappropriate. 135 Patient A testified: "About a day or two after Sam came home and gave me my blood test results. Sam told me that it probably was Pancreatitis. I didn't get any medication for pain relief from hospital or other Doctors, but I was taking Ibuprofen and Paracetamol every four hours, as Sam told me to …" She recorded in her journal that he told her it could be pancreatitis. 136 Notwithstanding his statement in August 2017 to say that he provided the results of the blood test to Patient A in a sealed envelope and did not discuss them with her, he said in his letter of 29 January 2016 to the HCCC: "On one occasion she did request I be the one to take her blood, and provide her with a copy of her results and help her understand what her paperwork said, which I did for her." 137 Dr Christie's opinion is, and the practitioner admits, that the practitioner's interpretation of the blood test results given to Patient A was wrong. Dr Christie advised that the results were much more suggestive of a mild gastritis than pancreatitis. He says that this demonstrates the fundamental confusion over the doctor/patient relationship; where the practitioner was not patient A's treating doctor and not involved in her clinical management, but had an intimate relationship with her. No other doctor was aware the tests had been taken or the results. He made no clinical notes for the hospital file. 138 Dr Christie found the practitioner's conduct to be significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience applicable at the time of the conduct. It was unsatisfactory professional conduct.

[5]

Patient B

Patient B was a resident of the country town in which P Hospital is situated. She met the applicant through a dating website in November 2014.
With respect to Patient B, Complaint One alleged that the applicant had, in January 2015, prescribed Amitriptyline to Patient B in circumstances where he was in a personal relationship with Patient B. It was further alleged that the applicant did not create a proper clinical record and he issued the prescription without appropriate clinical assessment, including taking a full history and conducting an appropriate examination. It was alleged that the same circumstances were present on 17 August 2015, when the applicant prescribed Trimethoprim to Patient B. The deficiencies were alleged in relation to the provision by the applicant to Patient B of a quantity of Cephalexin obtained by him from P Hospital between November 2014 and August 2015 and to the provision by the applicant to Patient B of a quantity of Trimethoprim obtained by him from P Hospital in the same time period.
Duplicates of the script for Amitriptyline and the script for Trimethoprim written by the applicant were tendered in evidence before the original Tribunal. There is no evidence of the Trimethoprim having been dispensed. The original Tribunal, in its reasons, said: 142 When the application and the complaints were served on the practitioner on about 4 May 2017, he would have become aware that the applicant was alleging that the practitioner inappropriately provided Patient B with the subject two prescriptions without appropriate clinical assessment and investigation and without creating a proper clinical record. In his Reply filed 9 August 2017 he denied the allegations that on those occasions he failed to carry out an appropriate clinical assessment and investigation, including taking a full history and conducting an appropriate examination and failed to create a proper clinical record. It was not until 1 September 2017 that he filed his statement of 9 August 2017 and there alleged he made contemporaneous clinical noes for both occasions, which he alleged were made on each occasion on his personal laptop. Copies were attached to his statement. In his reply of 8 August 2017 the practitioner had alleged that he had in relation to particulars 4 and 5 of Complaint One made in each case when he had issued a prescription to Patient B he had carried out an appropriate clinical assessment, [sic] including the taking of a full history and conducting an appropriate examination and created a proper clinical record. But on the second day of the hearing he conceded that on both occasions he had not created a proper clinical record. 143 He testified in oral evidence that he believed until advised otherwise by his counsel on the first day of the hearing (19 September 2017) that those notes were proper and adequate clinical notes recorded from an appropriate clinical investigation and assessment. 144 But there is no evidence that in more than four months since he had notice that the Applicant was alleging he had made no proper clinical record on these occasions, he informed the Applicant that he had made such records or provided copies to the applicant. That caused the tribunal concern that the alleged clinical notes might not be contemporaneous and might have been prepared by the practitioner after the complaints to the Applicant. 145 There were other matters that also caused the Tribunal to have concerns as to whether the clinical notes were genuine. One was that his alleged conduct of making extensive assessments and elaborate clinical notes to support the giving of a prescription is not consistent with his cavalier and arrogant attitude to professional responsibilities demonstrated by his breach of professional boundaries, sexual activities with Patient B while on night shift and on call., interactions with Patient C when she was a patient and he was an Intern on night shift, failing to create clinical notes when on duty he reviewed Patient C's medication, taking blood from patient A in the hospital when he was an intern without supervision and not on duty, failing to read her clinical notes, failing to consult either of the 2 doctors in Emergency who had decided that taking blood was not appropriate, and failing to make any clinical note of his involvement. 146 At the hearing the practitioner conceded on advice that the purported clinical notes were not a "proper clinical record" as they were in his laptop and not accessible to any other health practitioner. The Tribunal also found that the practitioner was a less than credible witness. 147 The conclusion of the Tribunal is that the alleged clinical notes were not made contemporaneously, but probably after 4 May 2017, and the alleged examination, investigation, and assessment described in them did not occur. 148 When asked about why he did not reveal the alleged clinical notes on his laptop for the consultation supporting his prescription for Amitriptyline given to Patient B on 15 January 2015 in his response in October 2016 to the HCCC, the practitioner said that he did not have access to his laptop because it was in Sydney. When asked how many times he went to Sydney during the interim, he avoided the question and said "I only once accessed the laptop". 149 It was put to him that "Nothing stopped you accessing the laptop and sending the document to the HCCC?" to which he replied: "I was accessing further information". When asked: "It was that critical to your defence why not?" He answered: "I took advice." It was put to him: "The clinical record always existed?" To which he replied: "But it wasn't always in my reach." 150 When asked what he says is not "proper" with the alleged clinical records he alleged he had constructed on his laptop, he replied: "My lawyers told me storing it on my laptop is not an adequate record. It is not accessible by others." 151 He testified that the first time that it was raised with him that the alleged clinical record for 15 January 2015 was inadequate was on the second day of the hearing (20 September 2017). He denied the document was a forgery or was not genuine. 152 In his statement of 9 August 2017 he says that he took a detailed history on the occasion and then he says that he sought advice from Avant's website on whether it was appropriate to issue the script. It advised that it should be avoided if possible and recommended retaining an appropriate record of the script. He then says: "I wrote a clinical note on my laptop which is annexed to this statement and marked 'SV4'". He does not specifically state when he wrote the clinical note. 153 Similarly in relation to the alleged clinical notes of 17 August 2015 regarding the prescription for Patient B of "Trimethoprim", he states that he made the clinical note before he wrote the prescription. 154 The journal entries on 29 January 2015 of Patient A record that the script was obtained on 29 January 2015 he denied the document was a false document. When it was put to him that it was not created at the time of the consultation, he said it was created a day later. 155 His attention was drawn to his statement and it was put to him that when he made the statement six weeks before the hearing attaching the record, it was "an opportune time to have said when you made the clinical records, but you didn't". He answered: "I didn't see that."
Patient B gave evidence before the original Tribunal that the applicant gave her a packet of Cephalexin with one pill missing, which she understood that he had obtained from P Hospital. Patient B said that she had drawn the applicant's attention to the fact that a pill was missing, and her evidence was that the applicant had said: Oh yeah, the nurses probably used it.
Initially, the applicant denied that he provided Cephalexin to Patient B. However, he changed his account in cross-examination. In its reasons, the original Tribunal said, of the applicant's evidence: He conceded that he prescribed Cephalexin for Patient B and conceded that her prescribing record does not show such prescription. When asked how that could occur, he said he was living out of a suitcase at the time. His answer was not responsive. One possibility is that there was no script because he obtained the medication from the hospital. 195 The practitioner was notified in the Section 40 letter from the HCCC dated 30 August 2016 that the HCCC had obtained an expert opinion:- "That by prescribing or acquiring medication for your girlfriend [Patient B] for her recurring UTI and failing to provide appropriate assessment, investigation and documentation, was significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. This attracted the expert's strong criticism." 196 In his reply he denied that in February 2014 he took her Cephalexin acquired from the hospital. He also said in a letter to the Applicant:- "The only medication I brought for her from [P Hospital] was Paracetamol. This was on one occasion when I was working late shift and unable to attend a pharmacy. I asked the nursing staff if I could take some Paracetamol tablets home to treat her pain overnight until I could purchase more from the chemist. This is not a routine practice for me, and my personal medicine cabinet is stocked with purchased medications." 197 In cross-examination he admitted that he had made an admission in correspondence with the Health Care Complaints Commission that he prescribed Cephalexin for Patient B but the records of her prescriptions dispensed included no record of that prescription. He then said: "I was troubling to remember the two things I prescribed for her." He said he had provided Patient B on 15 January 2015 with a prescription for Amitriptyline. He stated that in his statement of 9 August 2017. But he said in his oral evidence that he should have referred to Trimethoprim. However, the dispensing history for Patient B for 2015 does not include any prescription for Trimethoprim. One possibility is that his recollections are of Cephalexin and Trimethoprim that patent B says he supplied from the hospital. 198 In relation to particular 6 of Complaint One he said he wrote the script on 16 August and believed that it was dispensed the next day (17 August). In his statement at paragraph 26 he said there were extenuating circumstances. But he conceded that she could go to a general practitioner the following morning. But he said that she might have problems getting an appointment. The evidence did not establish that it was likely that she would have problems. There was no evidence of any extenuating circumstance in relation to the prescription he provided on 16 August. 199 It was put to him that he brought home Cephalexin and Trimethoprim from the hospital and: "You took extenuating circumstances to mean convenience?' to which he replied: "I don't think that's correct. I brought home paracetamol once." 200 The Tribunal finds that both Patient A and Patient B presented as more reliable witnesses than the practitioner. Each of them alleged that the practitioner had given her Cephalexin from the P Hospital. Patient A gave evidence that satisfied the Tribunal as to how she received the item and that it was Cephalexin that she received. The Tribunal prefers the evidence of Patients A and B to that of the practitioner in relation to the issue of whether he provided each of them with Cephalexin. The practitioner as at 29 January was in the first month if his internship. 201 Given the findings in relation to the Cephalexin allegations and also the previous findings in relation to the practitioner's credibility and conduct, the Tribunal is satisfied on the balance of probabilities that the practitioner also gave Patient B Trimethoprim as alleged in Particular 7 of Complaint One.

[6]

Complaint Two

Complaint Two also alleged unsatisfactory professional conduct. Complaint Two concerned Patient C, who, at some time prior to April 2015, had been in a personal relationship with the applicant. Between 30 April 2015 and 4 May 2015, Patient C was an inpatient at P Hospital.
In Complaint Two, it was alleged that the applicant failed to maintain proper professional boundaries in that, during Patient C's admission, the applicant paid her a social visit and lay on her hospital bed with her and watched a movie on the television. The applicant was on an overnight shift at the time.
In its reasons for decision, the Tribunal said, in relation to Complaint Two: 80 The practitioner admits the allegation, except that he denied "lying" on the bed with Patient C and denied watching a movie with her. He admits he sat on the bed and watched television with her. The practitioner admits that in any event he engaged in conduct that demonstrates his judgment in the practice of medicine was significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. He denied that his conduct was "improper or unethical conduct relating to the practice or purported practice of medicine". 81 Regarding the Complaint Two, in cross-examination the practitioner admitted that his conduct with Patient C crossed professional boundaries. But he claimed he only sat on the bed and when he was asked whether he denied there was a movie playing on the television, contrary to the other version, he said: "I didn't watch." His other version was in his letter of 29 January 2016 to the Health Care Complaints Commission where he said: "The only comfortable way I could watch part of the movie with her was to sit on her bed with the head up, on top of the bed sheets, which she invited me to do." 82 In cross-examination he was asked about text messages exchanged between him and Patient C when she was an in-patient at the hospital. After Patient C had text him to advise that she was being discharged from the hospital, he sent a message to her: "I was totally going to chocolate you up tonight." He denied this had any sexual meaning. 83 Later there was an extensive exchange of messages and then she concluded the exchange by saying: "Hey I gotta go as my awesome dinner is ready!! Don't miss me to (sic) much tonight darling!!! Have a quiet night. Xxxxxx" 84 Patient C in an SMS message to Patient B on 23 September 2015 stated that the practitioner had been "sleeping (just sleeping) with me the four nights I spent in hospital. I had nearly died so I was pretty fragile" and also said, describing the same period when she was in hospital. "(He) spent the next week by my side every hour he had off looking after me and sleeping with me." 85 The practitioner was not a treating doctor for Patient C on this occasion. A consultant physician, a gastroenterologist and other medical practitioners were in charge of her care. 86 The investigator for the HCCC wrote to the practitioner on 18 December 2015 advising of complaints received against him. One of those was said to be a complaint "that you slept in a hospital bed with [Patient c] when she was an in-patient at [P Hospital]". 87 When he replied to that complaint in his letter of 28 January 2016, he said:- 88 "I became friends with [Patient C] in late 2014. In my capacity as her friend she invited me to make a few social visits whilst she was a patient at [P Hospital] in May 2015, which I did. She texted me on 3 May 2015 asking for me to come and keep her company when I had a break or finished my shift. I was not her treating doctor. I was seeing her as a friend. She invited me to share a meal with her and watch part of a movie (Men in Black) with her. The way her room was set up, the only comfortable way I could watch part of the movie with her was to sit on her bed with the head up, on top of the bed sheets, which she invited me to do. During this time, the door remained opened and nurses frequented the room. There was no ambiguity as to my role at the time. In hindsight, I appreciate my friendly social interaction may be viewed as inappropriate, and have discussed the matter with one of my supervisors." 89 In his letter of 4 October 2016 in response to a letter from the HCCC he said regarding his interactions with Patient C when she was hospitalised:- "The hospital paperwork which the Commission has sent me shows [Patient C] was admitted to [P Hospital] at 1:50 am on 1/5/15, and was sent home from hospital early on 4/05/15. I became aware of [Patient C's] admission when she texted me on 1/5/15 around 08:00 telling me she was in the hospital after being sick, but was 'back on track now', and had been transferred to [P Hospital] from [the city hospital] as part of her step-down. She invited me to make a social visit to alleviate her boredom, which I said I could not do until a break in work. I took 20 minutes to eat a small meal and chat with [Patient C] in a social capacity around 23:30 on 1/5/15. I sat atop her sheets because the room did not have a chair. The door remained opened, and nurses frequented the room during my visit." 90 He also stated:- "On 03/05/15 at 00:13, [Patient C] texted me stating she was bored and wanted company. I stopped for a quick visit to say hello. I did not sit on her bed nor eat food. I soon left as the wards were busy." 91 The practitioner said that on the morning of 03/05/15 during a "regular rounding of wards", Patient C told him that she felt her pain was improving and she was having too much Oxycodone and was told at John Hunter to ask for Ibuprofen as an alternative. The practitioner says that he fixed a charting error to enable her to have Ibuprofen instead and verbally handed over the rechart to her treating team when they arrived. He said that he did not see Patient C in the hospital again after the recharting. 92 However, in his reply filed in these proceedings on 9 August 2017 the practitioner denied that he lay on the bed and denied he watched a movie with Patient C while he was working on an overnight shift. He said that the incident occurred on 1 May 2015. He said that Patient C texted him asking him to come to keep her company "when I had a break or finished my shift". 93 The timesheet for the practitioner produced by the P Hospital says that he was rostered for a ten hour shift on 1 May 2015 commencing at 10:00 pm that day and concluding at 8:30 am on 2 May 2015. 94 He says in his statement he was rostered on a night shift ward cover and was the only doctor on shift. He says there were other doctors in the hospital in the Emergency Department and the Intensive Care Unit. He said Patient C was in a short-stay ward "The Medical Assessment Unit" as part of her step-down care. He said that Patient C sent him a message telling him she was a patient and asking if he would make a social visit. He agreed to do so "during my meal break". He said: "While there were no other doctors on the shift, I was allowed to have my meal break during quiet periods, however I remained on call for medical emergencies." 95 He said that he attended her room in the Unit and there were no chairs in the room, so he sat on the end of the bed and "ate my dinner off a tray". He said he remained in her company for about 20 minutes and then returned to work. He acknowledged in his statement that: "In hindsight I should not have paid a social visit during work hours, even though I was on a break." 96 He also said in his statement that he was on ward duty commencing at 10:00 pm on 2 May and concluding at 8:30 am on 3 May 2015. 97 He said: "Included in my duties was to regularly visit every ward of the hospital. Each ward maintains a whiteboard on which the nurses write outstanding jobs for me to do. Whilst on my rounds I noted that there was a job listed to rechart Nurofen for Patient C. As it was a Sunday and I was the only doctor available covering the wards at the time, and because Patient C's regular treating team would not be in until Monday, I recharted Nurofen for Patient C. I had no other further social or professional visits to Patient C after recharting her Nurofen." 98 The Tribunal is satisfied on the balance of probabilities that the practitioner on 1 May 2015 whilst rostered on night duty at P Hospital visited Patient C in her hospital bed and lay on her bed with her watching a at least part of a movie during the period when he was rostered on duty as an RMO at the hospital and Patient C was not his patient. 99 The Tribunal accepts the evidence of Dr Christie that such conduct is "entirely inappropriate, given the potential for confusion as to the nature of relationship". Dr Christie noted that the hospital notes for Patient C include an entry on 3 May in her medication chart by the practitioner reviewing Patient C and prescribing a medication at 4:30 am on 3 May. Dr Christie's evidence is that it was clear that at that time at least, the practitioner was involved professionally in the management of Patient C. 100 It was also noted that the practitioner did not complete any clinical documentation of his review of Patient C at that time. 101 Dr Christie's opinion, which the Tribunal adopts, is that the practitioner's behaviour in relation to lying on the bed of Patient C watching at least part of a movie with her while he was rostered on duty fell significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience, applicable at the time of the conduct and attracts his strong criticism. Despite the denials made by the practitioner in his replies regarding whether he lay on the bed or watched a movie with the patient, he admitted in both documents that his conduct was unsatisfactory professional conduct under paragraph 139B(1)(a) of the National Law, as concluded by Dr Christie. 102 Accordingly the finding of the Tribunal is that such conduct was unsatisfactory professional conduct.

[7]

Complaint Three

Complaint Three involved Patient B. It was alleged that, on 19 May 2015, and also on 8 July 2015, the applicant engaged in sexual activity with Patient B at P Hospital when he was rostered on shift.
In its reasons, the Tribunal said the following in relation to Complaint Three: 57 In his statement of 9 August 2017 the practitioner stated "At no time did I engage in sexual activity with Patient B whilst working at [P Hospital]. But later in his oral evidence he was conceding that they did have sex at the hospital when he was on night shift. But he said it was only during meal breaks. But other evidence proved this qualification to be false. … 64 The practitioner admitted, and the evidence established, that between about November 2014 and August 2015 he was an intern (until February 2015) and then a Resident Medical Officer ("RMO"), employed at the P Hospital. In the period from November 2014 to August 2015 he engaged in an intimate and sexual relationship with Patient B. He admits that on or about 19 May 2015, he was engaged in sexual activities with Patient B at the P Hospital when he was rostered on a night shift and again on about 8 July 2015 he engaged in sexual activity with Patient B at the P Hospital when he was rostered on shift. 65 The evidence is that on both of these occasions, he contacted Patient B by telephone and invited her to join him in a recreation room that she could access from an exterior door without having to enter any other part of the hospital premises. He invited her to bring takeaway food for them to share and when she attended, they ate a meal and then had sexual intercourse. 66 In cross-examination the practitioner denied having sexual activity with Patient B when he was on night shift because he was working and responsible for the shift. He said there were seven doctors on duty in the hospital at such times and they were permitted up to an hour for a meal break. He conceded that if there was an emergency the call would go out to all of the doctors and he was required to respond. He said that he sincerely regrets his conduct as a junior doctor. The practitioner said that he had had a discussion with his supervisor about the issue of having sex with Patient B during meal breaks. He said, "At the time I thought meal breaks were my time." 67 When asked about the night of 19 May he admitted that he was rostered from 10:00 pm until 8:30 am the next morning with a 30 minute meal break. He described the shift as "10 hours work and 30 minutes for time of my own". He conceded that the instruction was that he take the time for the break when the wards were not busy. He conceded that he knew that having sex on a shift was unacceptable conduct. 68 In cross-examination when it was put to him when he was asked about his response to the HCCC in October 2016 denying that he ever engaged in sexual activity during the night shifts. He was asked whether he would say that that was truthful and his answer was: "Yes, at the time". Then it was not until the question was repeated a third time that he conceded that the statement he gave was misleading. 69 When asked when he had decided he should change that response, his answer was: "In the last few days when I was reading the documents and revising it". He conceded that it was not until after the start of the hearing that he changed his mind. 70 In cross-examination he also conceded that in a letter to the Health Care Complaints Commission he denied he had sex with Patient B "at any time while working at the [P Hospital]". He then conceded that that statement was misleading. When he was asked whether it was deliberate he answered: "Not consciously". 71 In cross-examination he conceded that his night roster permitted only a half hour meal break and did not permit a one hour break. He had previously claimed that it did permit a one hour break. He also conceded that the break was not for sexual activity. 72 He claimed that he been "called away at least once on each occasion when Patient B came and joined him at night in the hospital". He reluctantly conceded that he has always known to have sex in a meal break was unacceptable. 73 He conceded to the Tribunal that during the meal break he was still on-call and if there had been a patient suffering a life threatening event such as a heart attack, he would be paged to attend. But he said in his oral evidence that if he was on-call he could interrupt what he was doing in the "meal break" and attend wherever in the hospital the alarm had been raised, and in any event there were seven doctors in the hospital so someone else would attend. 74 The practitioner admits that the conduct complained of demonstrates the judgment possessed by him in the practice of medicine was significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. He denied that the conduct was "improper or unethical conduct" relating to the practice or purported practice of medicine. He denied that the conduct was professional misconduct. It clearly demonstrated "the judgment possessed by the practitioner in the practice of medicine is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience" and therefore constitutes unsatisfactory professional conduct. 75 Dr Christie's evidence is that the rostered night resident or intern is not completing an on-call shift, but is the rostered medical cover for the hospital overnight. He opined:- "The rostered night resident or intern is not completing an on-call shift, but is the rostered medical cover for the hospital overnight. Therefore, creating an environment where the doctor is not immediately able to respond to requests for medical assistance is a failure of the responsibilities of the doctor on duty. Even if this were not the case, NSW Public Hospitals do not establish rooms or facilities for doctors or other staff to engage in sexual relationships whilst at work or on the hospital grounds. Engaging in sexual activity whilst rostered in the hospital on shift (even with a partner unrelated to the work environment), demonstrates a profound failure to understand the nature of the role and responsibilities of a junior medical officer in the NSW Public Hospital System. Developing a pattern of behaviour in which the doctor regularly engaged in sex in the doctor's lounge whilst working night shifts, demonstrates a significant failure to appreciate appropriate professional boundaries, and to behave in the manner expected of medical staff within the hospital system. Dr Vigours' behaviour in this area falls significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience, applicable at the time of the conduct and attracts my strong criticism." 76 In his oral evidence Dr Christie testified that because the practitioner was rostered to provide overnight cover it was entirely inappropriate to engage in sexual intercourse while he was on duty. He said that if it was during a meal break, that would make no difference to his opinion. 77 He said: "It appears well understood that as sole doctor on wards, he was required to be on the wards, except during a meal break at a quiet time." 78 Accordingly, the finding of the Tribunal is that the conduct of the practitioner alleged in Complaint Three has been proved and constitutes unsatisfactory professional conduct under both paras (a) and (l) of the definition of unsatisfactory professional conduct in Subsection 139B(1) of the National Law.

[8]

Complaint Four

Complaint Four alleged that the applicant was guilty of professional misconduct in that he had engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of his registration or that he had engaged in more than one instance of unsatisfactory professional conduct and that when the instances are considered together, they amount to conduct of a sufficiently serious nature to justify the suspension or cancellation of the applicant's registration.
The original Tribunal determined that the applicant was guilty of professional misconduct. In its reasons, the Tribunal said: 230 The incidents of unsatisfactory professional conduct by the practitioner are numerous. Some involve dishonesty. They have involved serious neglect of the interests of Patients A. B. and C and of other patients. He has breached codes and other legal standards that applied. He ignored the decision of two other doctors about taking bloods from Patient C. The conduct complained of has involved serious arrogance and overconfidence in his competence as an Intern or new RMO. It has included conduct in those roles that suggests that in his work as a medical practitioner he may fail to recognise and address ambiguities or complexities in diagnosis and treatment and may not adequately respect the opinions of other medical practitioners. His unsatisfactory professional conduct reflects poorly on the profession. 231 The practitioner raises hubris and being "younger" as reasons for his poor behaviour. He testified that he has "put in a lot of work to develop my practice and understandings of professional boundaries." But his denial that sexual intercourse occurred with patient B while rostered on night shift until the hearing, his persistent defence of meal break times being his "own time" and other aspects of his evidence indicate a serious continuing lack of insight into the standards of professional behaviour expected of medical practitioners and fails to demonstrate regard for the welfare of patient A and B by subjecting them to unnecessary cross examination in an effort to serve his self-interest. 232 The applicant seeks that the practitioner's registration be cancelled and a period of 12 to 18 months be specified as the period before he can reapply for registration. Counsel for the practitioner advocated there be no suspension or cancellation but a reprimand, and a requirement for the practitioner to complete an ethics course 233 It is of serious concern that notwithstanding that he has been on notice of the investigations and complaints since at least the applicant's letter to him of 18 December 2015; he has not relied upon any supportive evidence from a more senior professional colleague who has worked with him. Nor has he relied upon evidence by a colleague who has worked with him since 2015. He has chosen to rely only on a work reference from a contemporary from 2014 and 2015. 234 Subsection 149C(1) of the National Law, provides that where the Tribunal finds a medical practitioner guilty of professional misconduct, it may suspend or cancel his Registration. The practitioner has been found guilty of professional misconduct. Under subsection 149C(7) the Tribunal may also order that an application for review of the cancellation order not be made until after a specified time. 235 The complaints established and the practitioner's lack of insight is so serious that the practitioner's registration should be cancelled. That result should serve as a deterrent to the practitioner and other practitioners. It should give the practitioner time by coursework and reading to understand and embrace proper ethical and professional standards. 236 Cancellation should protect the public, the reputation of the medical profession and the confidence of the public in that profession. Cancellation is appropriate rather than mere suspension, because the practitioner should, if he wishes to resume practice as a medical practitioner, have the onus of proving that he is a fit and proper person to be a medical practitioner. 237 The Tribunal has determined that the Practitioner not be permitted to apply for review of the cancellation order for 3 months. That period is adopted in the knowledge that even if he applies promptly after 3 months, investigations and the process for determination of his application will take some time and it is likely to take some months.

[9]

Steps taken by the applicant since the cancellation of his registration

The applicant provided an affidavit sworn on 8 February 2019. In his affidavit, the applicant set out the steps that he had taken to address the issues which arose from the complaints against him, as he saw them. Those steps included:

a 3 hour meeting with Dr Hockley, the Director of ICU at Calvary Wakefield Hospital (CWH) in Adelaide, on 28 March 2018. Dr Hockley suggested that the applicant keep a diary 'of our meetings for me to document boundary issues I had observed as a doctor (the Diary)". The applicant made entries in the Diary dated 29 March 2018 and 22 May 2018.
a lunch meeting with Dr Hockley on 7 September 2018 at which the scenarios in the two diary entries were reviewed and "boundary issues" were discussed. On 9 September 2018, the applicant made a further entry in the Diary.
a 30 minute telephone conversation on 30 September 2018 between the applicant and Dr Hockley during which the applicant told Dr Hockley of the progress of his application for reinstatement.
a telephone conversation on 21 December 2018 between the applicant and Dr Hockley to review the Diary.
attending a seminar on 29 January 2019 at CWH on the theory and practice of difficult airway intubation.
two meetings with Dr Fischer, the Director of the ICU at the Lyell McEwin Hospital in Adelaide (the LMH), one in March 2018 and one in April 2018.
undertaking a Graduate Certificate in Bioethics at the University of Sydney from March to June 2018. The applicant studied the subjects Introduction to Ethical Reasoning, Philosophy of Medicine, Bioethics, Law and Society and Clinical Ethics. The applicant completed the course and was awarded a Graduate Certificate in Bioethics.

In his affidavit of 8 February 2019, the applicant set out his reflections upon some of the issues which arose from the complaints.
In that affidavit, the applicant addressed his failure to conduct appropriate treatment of Patients A and B and his failure to keep proper records in relation to them. He wrote that 'When Patient A requested' that he help her 'to understand her discharge summary letter' that he was 'acting as her helpful boyfriend' but upon reading her complaint had been 'made aware…that my conduct amounted to inappropriately dispensed medical advice'.
The applicant said, of Patient A, 'Similarly, when she requested me to draw her blood, I obliged her request. I now understand that this was wrong, as it blurs the boundary between a clinician and a partner and puts the patient at risk'. As we have set out above, the original Tribunal found that the taking of Patient A's blood was the applicant's idea, and her blood was taken at his suggestion (see paragraph 117 of the Tribunal's reasons). In both of these 'reflections' in relation to Patient A, the applicant reverts to framing the narrative to make it seem as if he was asked by Patient A to do something, and that he did it to be obliging, whereas that purported context was specifically rejected by the Tribunal in relation to the taking of Patient A's blood.
The applicant said, in his affidavit, 'When Patient B requested, I wrote a repeat script for medications regularly dispensed by her GP at a time when she told me she was unable to see her GP.' He said that he thought that he had acted 'within the practice guidelines in writing these two scripts, but understand I was mistaken'.
The applicant set out in some detail the understanding he had gained as to why it is undesirable to write scripts for partners and family members and why it is important to write proper medical records which are accessible to other doctors.
The applicant said, in his affidavit "Similarly, when Patient B offered to drop off dinner at work, I should have refused such a visit". The applicant made it clear that he now understands that 'engaging in sexual activity at work' is 'entirely inappropriate behaviour'.
The applicant said that he recognised that his visit to Patient C was inappropriate because it 'blurred boundaries between my professional role and my past personal relationships [sic] with Patient C'.

[10]

The applicant's evidence at the hearing before this Tribunal

The applicant gave evidence at the hearing before us. In his statement, at paragraph 35, he said, in relation to the Graduate Certificate of Bioethics he undertook from March to June of 2018: It provided important perspective on ethical reasoning in medicine and allowed me to gain further insight into the issues raised by the Decision [ie the Tribunal decision], particularly concerning the importance of professional boundaries and the patient-doctor relationship.
In cross-examination, the applicant was asked what issues he was referring to in paragraph 35 of his statement. He said the issues referred to were professional boundaries, clinical ethics and professional conduct. He was asked if the decision raised any other issues for him, and he said "No".
In his report, Dr Wright recorded that the applicant told him that the applicant believed that he had not prepared well for the Tribunal hearing which resulted in his deregistration. In cross-examination, the applicant was asked what he meant by this, and he said that he had lacked an appreciation of the process and its dynamic and how to give appropriate answers. He said that he thought that he spoke too much and tried to say too much when shorter answers were required. He said that he thought that he had over explained and strayed outside the questions.
The applicant was questioned closely in cross examination on the topic of what he thought the issues were for him arising from the Tribunal's reasons for decision. He said that he thought most of the issues come under the 'umbrella' of boundaries; professional boundaries between himself and his current girlfriend. He said that Patient A frequently requested his help in navigating the health system, and that he thought that he was being helpful, but now recognises that he was possibly causing a disadvantage. He also said that he thought that he was unclear in the way that he gave evidence before the original Tribunal. He was pressed as to whether he perceived there to be any other issues, and he said that he thought he must have come across to the Tribunal as arrogant and overconfident. He said that he thought that he had been a poor witness.
The applicant was taken to his statement for the previous Tribunal, dated 9 August 2017 [Tab 10 Exhibit R1]. He agreed that he had prepared it. He was taken to paragraph 28 of that statement, which says: At no time did I engage in sexual activity with Patient B whilst working at PMBH
It was put to the applicant that this statement was false, and he agreed, and said that it had been 'corrected' at the Tribunal hearing. He said that he had provided the false statement for use in the Tribunal hearing because he found the accusation that he had had sex with Patient B at the Hospital 'personally and professionally embarrassing'. He said that he had changed his story in the Tribunal before he was cross examined. We comment that this would have been after Patient B gave evidence in the Tribunal. The applicant was asked whether he felt any obligation to be honest to the Tribunal. He said that he had felt that, but, at the time, he was labouring under a false understanding of the nature of his break. He had thought that it was his time to do with as he pleased. He was taken to paragraph 70 of the Tribunal decision, which records that he conceded in cross examination before that Tribunal that, in his letter to the HCCC in response to the complaints, he had expressly denied having sex with Patient B 'at any time while working at the [P Hospital]'. Before us, the applicant said that, by that statement to the HCCC, he meant to imply that he did not have sex during rostered hours and he believed the meal break to be outside of rostered hours. The applicant said that, before the original Tribunal, he thought that he had criticised and condemned his own behaviour in having sex at the hospital.
In cross examination, the applicant consistently failed to acknowledge, much less address, his dishonesty in his response to the HCCC and in his statement to the original Tribunal. When pressed about his dishonesty, he said that he now appreciated that he had been embarrassed and had 'made the wrong decision'. He said that he now appreciated the need to be honest now and in the future. When asked why he had not been honest in his affidavit, he said that he acknowledged his failure to convey his position to the Tribunal and to the HCCC. This was a characteristic of the applicant's evidence; he consistently reframed his false statements as 'mistakes' and sought to explain them as a component of his inability to present himself well as a witness, rather than simply acknowledging his dishonesty.
The applicant was taken to his affidavit of 8 February 2019, prepared for this Tribunal. He said, in that affidavit, that Patient B 'requested me to draw her blood' and 'I obliged her request'. [see paragraph 45 Tab 8, Exhibit A1]. He was taken to paragraph 117 of the Tribunal decision in which it is recorded that he conceded that he had asked Patient A if she wanted him to take her blood. He agreed that the Tribunal was correct, and, indeed, he had conceded that in his statement of 9 August 2017. The applicant appeared unconcerned about having been caught in making a false statement in sworn evidence.
The original Tribunal found that the applicant had misled the HCCC in a letter dated 4 October 2016, and misled the Tribunal in his affidavit of 9 August 2017 by saying, in relation to Patient A, in both documents, that 'at no point did I attempt to interpret her results or guide her clinical management'. The applicant conceded before the original Tribunal that he had, in fact, interpreted Patient A's blood test results [see paragraphs 118 and 119 of the decision]. Before us, the applicant said that the difference in his statements on this topic was attributable to his misunderstanding as to what counts as explanation and what counts as interpretation. He then also said that at the time of making his statement for the original Tribunal he had no recollection of interpreting the results. However, we note that, in a letter dated 29 January 2016 to the HCCC, he conceded helping Patient A to 'understand what her paperwork said' in the context of taking blood. When asked if the issue gave rise to any need for reflection, he said that he considered that it fell within the topic of professional and clinical boundaries.
The applicant demonstrated before us a profound unwillingness to admit to obvious instances of his dishonesty and a strong tendency to revert to 'explanations' which are transparently self-serving and well outside the range of reasonable behaviour.
The applicant said, in evidence before us, that the notes that he says that he made on his personal computer in relation to his prescribing of Amitriptyline on 15 January 2015 and Trimethoprim on 17 August 2015, both to Patient B, were made within 48 hours of the events they record. This is contrary to the finding of the original Tribunal that the notes were not made contemporaneously, but probably after 4 May 2017.
In cross examination, the applicant was asked if it concerned him that the original Tribunal found him to be less than credible. He said yes, that he had 'presented myself poorly' and that he had not accurately gotten his position across. He said that he was trying to be as credible as he could. He pointed to the lapse of time between the incidents in question and his evidence.
The applicant was asked about a comment that he made to Dr White on 23 November 2018 to the effect that the animosity of Patient A and Patient B towards him had affected the outcome of the matter before the original Tribunal. The applicant confirmed that he made that comment to Dr White, and said that parts of the statements of Patients A and B had been redacted, and, had they not been, the applicant thought that the outcome could have been different.
The applicant was asked, in cross examination, about the evidence of Dr White concerning the question of whether the applicant might be reluctant in the course of his work to admit to wrongdoing. The applicant pointed to the report of his clinical supervisors as recording no concern on that issue.
The applicant was asked, in cross examination, why he failed to discuss his dishonesty in the statement prepared by him in support of his application for review of the cancellation orders by this Tribunal. The applicant appeared to have difficulty in speaking for a long minute, and then replied that he thought that, in his affidavit, some of his paragraphs were too general and he used umbrella terms.
In response to questions from the Tribunal, the applicant said that he had mostly worked night shifts during his time in Adelaide. He agreed that consultants work day shifts. He was asked about their capacity, therefore, to assess his performance. It was clear that the context for these questions was the references provided to the Tribunal by consultants who have worked with the applicant in Adelaide. The applicant said that the consultant would see him at hand over, possibly for a couple of hours. There would then be periodic phone calls through the night and then a round at 8am involving each patient. He said that his work was reviewed after every shift.
The applicant said that he had, in mid March 2019, made an appointment to see Dr White as a patient. He said that he had asked Dr White's secretary to confirm with Dr White that it was alright for him to see Dr White as a patient. However, he said, when he arrived for the appointment, he got the impression that Dr White had not been asked if it was alright.
The applicant said that he accepts the recommendation of Dr White and Dr Wright that he have counselling. He acknowledged that Dr White made that recommendation in his report of 5 December 2018. The applicant said that he had been away in January 2019 and busy preparing for his partner's family to visit at the end of February/early March 2019, so he had not done anything about it until he made the appointment with Dr White.

[11]

References

Ms Bidner, the applicant's current partner, provided a character reference for him. Ms Bidner said that her relationship with the applicant began three years ago, and she has lived with the applicant for the last two years. Ms Bidner said that the applicant is a kind and gentle man who is genuinely motivated to help people. Ms Bidner said that the applicant is now very careful to keep his work and personal lives separate. Given the relationship between Ms Bidner and the applicant, we do not place great weight upon this reference, but we accept that the applicant now takes care not to prescribe medication for his partner.
Dr Sanap, a Consultant Intensivist at the Lyell McEwin Hospital in South Australia, provided a reference dated 7 September 2018 for the applicant. Dr Sanap said that the applicant had worked as his Intensive Care SMO/Registrar for the previous 2.5 years. This conflicts with other evidence which indicates that the applicant worked at the LMH only from February to March 2018. Perhaps Dr Sanap meant to write months, not years. Even if Dr Sanap worked with the applicant at Calvary Health Care Adelaide ('CHCA'), as he may well have done, he could not have done so for two and a half years. Dr Sanap said that he had found the applicant: …to be reliable, professional and thorough in the discharge of his duties. He has demonstrated good clinical abilities, and an eagerness to continue learning and developing his skills.
Dr Sanap said that, during the time that the applicant had worked for him, he was not aware of any complaints about the applicant's behaviour from staff or patients. Dr Sanap said that the applicant had made him aware of the complaints which led to the cancellation of his registration.
Dr Pehlivanides provided an affidavit in support of the applicant. Dr Pehlivanides who has occupied the position of ICU Coordinator at CHCA which operates the Calvary Wakefield Hospital ('CWH') and the Calvary North Adelaide Hospital (CNAH). Dr Pehlivanides interviewed the applicant in August 2016 for the position of ICU Registrar at the CWH and the CNAH. The applicant was offered a contract as a locum ICU Registrar locum initially, and later was given a full time contract by CHCA which continued until he started at the LMH ICU in early 2018. Dr Pehlivanides said that he had read the Tribunal's decision regarding the cancellation of the applicant's registration. Dr Pehlivanides said that he observed that the applicant was a competent ICU Resident 'with a professional approach and clinically competent abilities to manage acutely critically ill patients.' He commented favourably on the applicant's interactions with patients and their families and his involvement in training and other workplace activities and said that the applicant 'has a charming, hardworking, generous, professional, patient, responsible, sincere, respectful, collaborative, humble, courteous and selfless character. He seems to be considerate of others and aware of how his interactions may affect others. He avoids conflicts.' Dr Pehlivanides said that he was unaware of any 'negative episodes or situations' involving the applicant at CWH or CNAH. He said that he had not observed any hubris or any behaviour at odds with professional behaviour.
Dr Fischer provided an affidavit in support of the applicant. He is an intensive care physician at the LMH. In 2017 and 2018, he was the Director of the Intensive Care Unit at the LMH. His duties included the recruitment, mentoring and performance managing of junior medical staff. Dr Fischer said that he met the applicant in August 2017 when the applicant applied for an ICU Registrar position at the LMH. The applicant disclosed the fact of the proceedings against him at an early stage in the selection process. In February 2018, the applicant began work at LMH. When the applicant's registration was cancelled, Dr Fischer read the Tribunal's decision. Upon the cancellation of his registration in March 2018, the applicant was suspended from duty at the LMH. Dr Fischer said that the applicant was professional and competent and communicated well with patients. Dr Fischer said that he had never noticed any negative behaviour or conduct on the applicant's part which could be described as involving dishonesty, lacking insight into the proper standard of professional behaviour or failing to maintain professional boundaries.
Dr Hockley provided an affidavit in support of the applicant. Dr Hockley is the Director of Intensive Care Medicine at CWH. With Dr Pehlivanides, Dr Hockley interviewed the applicant in August of 2016. In relation to the applicant's performance of his duties at the CWH, Dr Hockley said that the applicant 'performed at an above average level for his years of clinical experience, was diligent and behaved in a professional manner at all times'. Dr Hockley has read the decision of the Tribunal. He has discussed the applicant's professional development with him. Dr Hockley recounted the meetings set out in the applicant's affidavit. Dr Hockley said that, to his knowledge, there were no complaints about the applicant's work whilst he was under Dr Hockley's supervision.
Dr Ramadoss, a Senior Consultant at the CNAH and a Senior Consultant and Deputy Director at the LMH, provided an affidavit in support of the applicant. Dr Ramadoss was responsible for training the applicant whilst he was at LMH. Dr Ramadoss said that his observation of the applicant at the LMH and at CNAH was that he was 'very sincere at work. He was very reliable, responsible and hard working. He showed utmost respect to senior consultants and was cordial and helpful to his colleagues.' Dr Ramadoss said that the applicant was empathetic to patients and their families and well liked by the nursing staff. He actively participated in teaching programs. Dr Ramadoss never experienced any negative situations concerning the applicant, and nor did he ever receive any complaints about him.
We have carefully read all of the material in support of the applicant provided by his supervising doctors in South Australia and we have taken into account their evidence of his conduct at work at the LMH, the CWH and the CNAH.

[13]

Dr White

The applicant was referred by his solicitors to Dr White, a psychologist, for the purpose of obtaining a psychological report for use in these proceedings. Dr White had a single interview with the applicant on 23 November 2018 for the purpose of preparing a report, and he then provided a report dated 5 December 2018. Dr White administered the Kaufman Brief Intelligence Test, the NEO Personality Inventory and the Personality Assessment Inventory to the applicant in the course of that interview. Dr White gave evidence, by telephone.
We have taken all of Dr White's report into account. We note that a great deal of it, understandably, is the reiteration of what the applicant told Dr White. Dr White noted that the applicant was remorseful in relation to 'his offending actions', and that he had undertaken reflection about his past conduct and completed a bioethics course. Dr White said that the applicant is highly intelligent and was supportive of his application for re-registration. In his report, Dr White suggested that the applicant would benefit from ongoing mental health counselling and support, mostly, we infer, to help him recover from the stress arising from his experience of dealing with the complaints and having his registration cancelled.
In his oral evidence, Dr White disclosed that he had seen the applicant in his rooms about a week prior to the hearing. He said that he was surprised to see the applicant. He had not been aware that the applicant had made an appointment to see him. He said that, had he known that the applicant was seeking to see him for the purpose of treatment, he would not have taken the appointment. We infer that he was alluding to the obvious conflicts of interest and duty which arise when a health practitioner is retained to form an independent expert opinion to assist the Tribunal, on one hand, and on the other hand, is asked to treat the patient the subject of that expert opinion.
In the course of being cross examined, Dr White explained that he had not read the original Tribunal's decision in detail prior to seeing the applicant for the purpose of preparing his report. He said that his approach had been to understand the applicant's personality and his history, with a view to assessing the level of consistency between his personality and his history and to come to an understanding as to why he had engaged in the behaviour which led to the complaints.
Dr White said that the testing he administered had not given any indication that the applicant had the traits of an anti-social personality. Rather, the test results suggested to Dr White that the applicant is inclined to want people to see him in a positive light, which may lead him to say things he believes others want to hear, rather than choosing to be accurate. Dr White said that the applicant did not see himself as being particularly competent or organised, which could lead him to say things which he would like to be true, although they might not be.
In cross-examination, Dr White said that the applicant's tendency to want to have people view him in a positive light means that he may be reluctant to expose his own mistakes and may, therefore, fail to correct those mistake unless someone else brings them to his attention. Dr White said that anxiety could also lead the applicant to say things he should not say.
Dr White's attention was drawn to paragraph 57 of the Tribunal's decision, which records the applicant's words in his statement of 9 August 2017 that 'at no time' did he 'engage in sexual activity with Patient B whilst working at [P Hospital]'. Dr White said that he could not recall the applicant raising that statement with him. He said that it contradicted the account the applicant gave him of that element of the complaint. Dr White did not discuss with the applicant his unwillingness at the hearing before the original Tribunal to admit that these words were untrue [see paragraph 68 of the original Tribunal decision]. Dr White expressed concern at the contradiction between reality and the responses given by the applicant in the statement and in evidence in the original Tribunal on this topic.
Dr White did not address with the applicant his behaviour with respect to the generation of purported patient records with respect to Patient B on his personal computer in the context of providing her with prescriptions for Amitriptyline and Trimethoprim. He said that the applicant had made a general acknowledgement that he had 'said the wrong things' at the original Tribunal hearing, but they did not discuss that in detail.
Dr White said that the applicant would benefit from some therapy to help him be aware that, as a way of life, it is important to take the evidence into account. By 'evidence' in this context, we take it that Dr White meant events as they occurred in reality.
Dr White commented that the applicant's interpretation of events was very much related to the animosity he believed Patients A and B felt towards him. As we understand it, Dr White's impression was that the applicant believed that the negativity shown by Patients A and B arising from the breakdown of his relationship with each of them motivated them to give evidence with a view to placing him in a bad light. In focussing on that, the applicant was failing to take account of the facts when dealing with the allegations.
Dr White said that there are two personality types, broadly, which are likely to co-exist with the type of behaviour the applicant has exhibited. One is a grandiose, anti-social type of personality. Dr White did not see any sign of that in the applicant. The other is a disorganised, naïve personality type, where there is a desire to please others without much thought about the longer term consequences. In Dr White's opinion, the applicant falls within this second category. Dr White said that people with the second type of personality were open to treatment, whereas people with the first type are not.

[14]

Consideration of the issues and the parties' submissions

Our task is to determine whether it is presently appropriate that a reinstatement order be made under s 163B(1)(c) of the National Law. As we have set out above (see paragraph 4), we must determine whether the applicant is now a suitable person to be registered, bearing in mind the objects and guiding principles of the National law. The parties both relied upon the principles set out in Ameison v Medical Council of NSW [2015] NSWCATOD 49 at [29]. In Ameison, the Tribunal set out the following principles, which it said drew upon the decisions in Health Care Complaints Commission v Do [2014] NSWCA 307, In re Jason Martin [2010] NWSMT 13, In the matter of Stephen Goodwin [2012] NSWMT 17, Parajul v Medical Council of NSW [2011] NSWMT 4 and Bahramy v Medical Council of New South Wales [2014] NSWCATOD 116: 1. The purpose of the jurisdiction is to protect the public. 2. The question is whether the applicant is a fit and proper person to be held out as a person worthy of their confidence to the rest of the profession, to patients and to the whole of the community. 3. The applicant is in a more disadvantageous position than an original applicant. He or she must in effect displace the decision for deregistration that has been made. 4. The ultimate issue is whether the Tribunal can conclude on the basis of all the material that the applicant is now a fit and proper person to re-join [the] profession. 5. It is not a question of what the applicant may have suffered in the past but rather what is his worthiness and reliability for the future, in particular whether the applicant will act in accordance with the high standards and responsibilities of the profession. 6. The Tribunal may draw inferences from what has happened in the past and in particular what led to his or her being removed from the Register.
We will take these principles into account.
Counsel for the applicant, Mr Dean, argued that we should not approach our task presuming, because the applicant's registration has been cancelled, that he is probably permanently unfit to be registered as a medical practitioner. Mr Dean cited Chen v HCCC (2017) 95 NSWLR 334 at [1]-[22] in support of this proposition. We agree that, in this matter, no such presumption arises.
Mr Dean also relied upon the decision in Chen to support his argument that the burden the applicant needs to discharge is not a 'heavy' burden. We do not think that is it useful in this matter to characterise the applicant's burden in terms of whether it is 'light' or 'heavy' or something in between.
Mr El-Hage, counsel for the respondent, submitted that the applicant's dishonesty is a relevant and important factor in the consideration of the review and the application for a reinstatement order. Mr Dean submitted that the original Tribunal cancelled the applicant's registration on the basis of 'the complaints established and the applicant's lack of insight' (see paragraph 20 of the applicant's submissions in reply). Mr Dean asked us to reject the proposition that the original Tribunal had made any adverse findings about the applicant's honesty. We disagree with Mr Dean. The original Tribunal made it abundantly clear that the applicant's dishonesty, in numerous factual contexts, played a part in its decision to cancel his registration (see the original Tribunal's decision, paragraphs 57, 68, 70, 71, 72, 116, 117, 119, 121, 122, 123, 134, 136, 147, 194, 197, 200, 201, 230 and 231, all of which are set out above).
We reject Mr Dean's submissions on the topic of the applicant's dishonesty. We agree with Mr El-Hage's submission that the applicant's dishonesty is a relevant and important factor to be considered in determining this application.
It is relevant to the determination of the application for a reinstatement order to consider the behaviour of the applicant at these times: 1. in the lead-up to the making of the complaints, including in dealing with the complaints in response to the HCCC, 2. in the proceedings before the original Tribunal, 3. following his receipt of the reasons of the original Tribunal, and 4. in preparation for and in the hearing regarding the application for a reinstatement order.

[15]

Behaviour in the lead-up to the complaints

The findings of the original Tribunal in relation to the behaviour of the applicant which resulted in the making of the complaints are set out in detail above. The National Law provides, in s 163C(2): The review is not to review the decision to make the order, or any finding made in connection with the making of that decision.
Mr Dean submitted that this Tribunal was prevented by s 163C(2) from going behind the findings of fact made by the original Tribunal. We agree. It follows that we must accept those findings of fact, and may draw inferences about what follows from those findings of fact where those inferences are relevant to the review we are undertaking. We draw the inference from the series of untruthful and misleading statements which the applicant was found by the original Tribunal to have made, together with the misleading statements made subsequently by the applicant, both in his statement and in evidence before us, that dishonesty and an inclination to dissemble in some circumstances are a component of the applicant's character.
Despite his submissions outlined in paragraph [95] above, Mr Dean also submitted that the applicant was entitled to put his case on the basis that the original Tribunal has made some wrong findings of fact. The most significant example of this, on the applicant's case, is the issue, of whether the applicant undertook a proper examination and assessment of Patient B prior to prescribing Amitriptyline and Trimethoprim and, if so, whether the applicant wrote notes of those examinations and assessments. The original Tribunal found that no proper clinical examination or assessment of Patient B took place prior to the writing of those prescriptions. The original Tribunal also found that the notes made on the applicant's computer were made well after the writing of the prescriptions. The applicant gave evidence before us that he undertook the examinations and assessments and made the notes within 48 hours. It was implicit in the applicant's case that this Tribunal was being asked to decide this review on the basis of a version of facts which is different from the facts found by the original Tribunal in making the order for the cancellation of the applicant's registration. There is an obvious contradiction in Mr Dean's submissions in respect of the findings of fact of the original Tribunal. We prefer his first submission. The National Law, in s 163C(2) specifically prevents us from reviewing the findings of fact of the original Tribunal which were made in connection with the making of its decision, and we will not do so. We will rely on the facts as found by the original Tribunal in this review.
In the event that we are wrong on that point, we will address, briefly, the issues in relation to which the applicant relies upon a different version of facts from those found by the original Tribunal.
When, in evidence before us, the applicant indicated that he had undertaken a proper clinical examination and assessment of Patient B and had written notes about that examination and assessment within 48 hours, both on the occasion of prescribing Amitriptyline and on the occasion of prescribing Trimethoprim to Patient B, we did not find his evidence persuasive. Considering these occasions in the context of all of the findings of the original Tribunal, even if we were able to, we would not depart from the finding of the original Tribunal that the examinations and assessments did not occur and that the notes made on the applicant's personal computer were made well after the prescriptions were written and after the complaints were made.
The original Tribunal determined that the applicant was guilty of unsatisfactory professional conduct in relation to complaints one, two and three. In relation to the complaint four, the original Tribunal determined that the findings of guilt on the first three complaints cumulatively amounted to professional misconduct.
Taken individually, no single component of any of the three complaints was in the most serious category of unsatisfactory professional conduct. However, taken together, the incidents the subject of the original Tribunal's decision are unusual in their variety.
In view of the mentoring that the applicant has undertaken with Dr Hockley, the impact of having his behaviour analysed by the original Tribunal, and his completion of the Graduate Certificate in Bioethics at the University of Sydney, we are confident that, if the applicant were to return to medical practice, he would not prescribe drugs for partners or family members, engage in sexual activity in a hospital whilst he was on staff, pay social visits to inpatient friends or family whilst he was rostered on shift, participate in the treatment of close family or friends or override the decision of a more senior treating medical practitioner not to order a blood test.
We remain concerned, however, about the number and variety of ways in which the applicant exhibited unsatisfactory professional conduct. We are concerned that the number and variety of incidents may have their genesis in defects in the applicant's character or way of thinking which may give rise to him exhibiting different kinds of unsatisfactory professional conduct or unprofessional conduct in the future.
The original Tribunal noted that the applicant lied to or misled the HCCC in his written responses to the complaints on three occasions. In his letter to the HCCC dated 4 October 2016, the applicant said, in relation to allegation that he interpreted of Patient A's blood test results 'at no point did I attempt to interpret her results or guide clinical management'. In cross-examination before the original Tribunal, the applicant conceded that this was untrue, but said that he had forgotten what he did.
In the same letter, the applicant denied that he had ever engaged in sex whilst on night shift. The original Tribunal also said, in its decision, that he applicant, in correspondence with the HCCC, denied that he ever had sex with Patient B 'at any time while working at the [P] hospital'.
It is plainly unacceptable for a medical practitioner to lie to or mislead a professional regulatory authority in relation to a complaint against him. The applicant's approach to answering the complaint was regrettable.
In relation to his statement about the blood test results, in evidence before us, the applicant suggested that there was a difference between giving an 'explanation' as opposed to an 'interpretation' of the blood test results.
The applicant has also suggested that he could say that he had never 'treated' Patient A because the taking of blood did not constitute 'treatment' but was, instead, 'procedural'.
In relation to having sex with Patient B at the P Hospital, the applicant tried to justify his denials by saying that, because, he claimed, he was on a meal break at the time, it did not constitute engaging in sex 'whilst on night shift' or 'while working at the [P] hospital'.
There is a clear pattern whereby the applicant, when confronted with his own unsatisfactory behaviour, seeks to mislead the accuser using semantic tricks.
There is no basis on which we could conclude that the applicant has addressed this aspect of his character. Indeed, he exhibited it in the hearing before us.
The applicant's way of dealing with challenges and accusations by resorting to misleading semantic tricks has the potential to put patient safety at risk in the event that he uses it in a hospital setting.

[19]

Conclusion and orders

The applicant's unsatisfactory professional conduct, and the way in which he responded to the complaints and proceedings which followed that conduct, exposed a range of issues in relation to his behaviour and character. He has not yet dealt with all of those issues. He has informed himself to some extent about ethics in a medical context by undertaking the Graduate Certificate in Bioethics, however, he is still exhibiting behaviour consistent with a failure to take responsibility for his actions, deflection onto Patients A and B, an inclination to reframe the facts to exculpate or explain his actions, an inclination to use semantic tricks to mislead and a disinclination to tell the whole truth where his behaviour has been questioned. The applicant needs to further address his personal and professional ethical and moral framework. The applicant is not presently a fit and proper person to be registered as a medical practitioner. We make this finding bearing in mind that the purpose of this jurisdiction is to protect the public rather than punishing or penalising the health practitioner.
A lack of honesty and frankness in the context of the practice of medicine poses an obvious risk to patients. A medical practitioner must be able to deal with the suggestion that he or she may have made a mistake in an open and forthright manner. A medical practitioner must have the ability to disclose any mistake he or she may have made, regardless of the possible consequences for them personally or professionally. A medical practitioner who does not consistently do these things poses a danger to the public and is not a fit and proper person to be held out as worthy of confidence to the rest of the profession, to patients and to the community.
The fact that the applicant thought that it was appropriate to seek treatment from Dr White when Dr White had provided an independent expert report and was shortly to give evidence in this Tribunal also causes us to think that he requires further education with respect to health practitioner ethics.
Having conducted a review under Part 8 Division 8 of the National Law, we determine that it continues to be appropriate that the applicant not be registered as a medical practitioner.
The application for a reinstatement order is refused.

[20]

Costs

The National Law provides, in schedule 5D, clause 13: (1) The Tribunal may order the complainant (if any), the registered health practitioner or student concerned, or any other person entitled to appear (whether as of right or because leave to appear has been granted) at an inquiry or appeal before the Tribunal to pay costs to another person as decided by the Tribunal. ... (3A) The Tribunal may fix the amount of costs itself or order that the amount of costs be assessed by a costs assessor under the legal costs legislation (as defined in section 3A of the Legal Profession Uniform Law Application Act 2014) or on any other basis. (4) This clause applies instead of section 60 (Costs) of the Civil and Administrative Tribunal Act 2013.
In Bahramy v Medical Council of New South Wales [2014] NSWCATOD 116, the Tribunal set out the law in relation to costs of proceedings under the National Law. The Tribunal said: 153 The question of the power to award costs is subject of discussion by Meagher JA, with whom Basten and Emmett JJA agreed, in Health Care Complaints Commission v Do [2014] NSWCA 307 albeit in the context of an appeal under s 162 A of the National Law. After referring to the power in s 175B of the National Law which has national application by reason of s 201, his Honour noted :in respect to the power to award costs That is a provision having national operation pursuant to s 201 it should not be subject to local rules. It should be treated as conferring an unfettered discretion on the Tribunal. 154 His Honour then referred to the decision of the Court of Appeal in Health Care Complaints v Philipiah [2013] NSWCA 342 as follows: In Health Care Complaints Commission v Philipiah [2013] NSWCA 342 the Court accepted that "[a]s a general rule, costs of proceedings before the Tribunal should follow the event": at [42]. Noting that the mere impecuniosity of the losing party was not a justifiable reason for departing from that "rule", the Court also accepted "that there are factors that might militate against the recovery by the Commission of all of its costs in particular proceedings" including the possibility that the Commission was only partly successful, referring to Lucire v Health Care Complaints Commission (No 2) [2011] NSWCA 182 at [48]-[52]. Lucire dealt with a provision in the Medical Practice Act 1992 (NSW), Sch 2, cl 13, which also conferred an open power. Whatever the true extent of the power conferred on this Court in respect of costs of this appeal, it is appropriate to adopt the same approach as would have been adopted in the Tribunal, namely that there was an unfettered discretion, although the compensatory principle militated in favour of a successful party obtaining an order for costs.
Mr Dean argued that the respondent had given notice of its intention to oppose the application fairly shortly before the commencement of the proceedings, and that this should be taken into account in considering the question of costs.
Mr El-Hage pointed out that, in proceedings of this kind, the respondent was sometimes unable to determine its attitude to the application until after the applicant's case. It is for the applicant to make out its case.
There is no basis for departure from the usual rule that costs follow the event.
The applicant has been wholly unsuccessful. There will be an order that the applicant pay the respondent's costs to be agreed or assessed.

At a glance

Court

Decision date

Source

Judgment (21 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (7)

Cited By (4)