Health Care Complaints Commission v De Saxe [2017] NSWCATOD 135

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v De Saxe [2017] NSWCATOD 135 Hearing dates: 14-16 August 2017 Date of orders: 12 September 2017 Decision date: 12 September 2017 Jurisdiction: Occupational Division Before: D Cowdroy OAM QC, ADCJ, Principal Member Dr J Dunn, Professional Member Dr A Reid, Professional Member P Macneill, Lay Member Decision: (1) The Practitioner is guilty of professional misconduct in respect of the complaints referred to in proceedings 2016/00378716 (1620154).

(2) The Practitioner is guilty of professional misconduct in respect of the findings made against the Practitioner in proceedings 2017/00089410.

(3) The Practitioner be suspended from practice forthwith, pursuant to s.165L(3)(c) of the National Law. Catchwords: Medical Practitioner: practitioner engaging in sexual conduct with patients – practitioner prescribing inappropriately for patient – practitioner prescribing for self-medication – practitioner failing to maintain proper records – practitioner failing to communicate with other treating specialists of patient – complaints of unsatisfactory professional conduct constituting professional misconduct established Legislation Cited: Health Practitioner Regulation (NSW) Regulation 2010 Health Practitioner Regulation National Law (NSW) Medical Practice Regulation 2008 (repealed) Poisons and Therapeutic Goods Act 1996 Poisons and Therapeutic Goods Regulation 2008 Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Dr Ian De Saxe (Respondent) Representation: Counsel: Mr Fernandez (Applicant) Mr Barnes (Respondent)

Solicitors: Health Care Complaints Commission (Applicant) TressCox Lawyers (Respondent) File Number(s): 2016/00378716 (1620154); 2017/00089410

REASONS FOR DECISION 1. The Health Care Complaints Commission ("HCCC") complains that Dr Ian Morris De Saxe ("the Practitioner"), a medical practitioner registered under the provisions of the Health Practitioner Regulation National Law (NSW) ("the National Law") has committed breaches of the National Law as is set out more fully hereunder in two proceedings. 2. The first Complaint (proceedings 2016/00378716; 1620154) contains 5 complaints arising out of the Practitioner's behaviour and conduct in respect of two patients known as Patient A and Patient B. This conduct includes not only physical contact but also the prescription of drugs in circumstances where such prescription has breached clauses of the Medical Practice Regulation 2008 (repealed) and breach of clause 7 and Schedule 2 of the Health Practitioner Regulation (NSW) Regulation 2010 ("the Regulation"). The complaints allege that the Practitioner engaged in improper or unethical conduct constituting unsatisfactory professional conduct. 3. The Practitioner does not dispute either the facts relied upon in support of the complaints or the findings which are sought of unsatisfactory professional conduct. 4. The second Complaint (proceedings 2017/00378716) contains four complaints. The complaints arise out of the conduct and treatment of Patient C. Arising out of the alleged conduct, the Commission alleges that the Practitioner has contravened a provision of the Regulation, and that the conduct of the Practitioner constitutes unsatisfactory professional conduct, culminating in professional misconduct. The Practitioner denies that the conduct relied upon by the Commission in respect of the second complaint. 5. The proceedings have been heard together, and accordingly the Tribunal will deliver one decision in relation to both matters.

Proceedings No 2016/00378716 (1620154) ("the First Complaint") 1. The background to the First Complaint is stated in such complaint as follows: "The practitioner graduated with a Bachelor of Medicine and Bachelor of Surgery from the University of Sydney in 1987. He was first registered to practice [sic] in New South Wales on 2 January 1987. The practitioner trained as a Registrar in psychiatry at Royal Prince Alfred and Rozelle Hospitals from 1990 to 1995 and was awarded Fellowship of the Royal Australian and New Zealand College of Psychiatrists in 1995. Between 2007 and 2011 the practitioner worked as a Visiting Medical Officer at Mosman Private Hospital (Mosman Private). Between 2007 and 2011 the practitioner also practised from a private practice in Lindfield (The Lindfield Practice). Between April 2010 and 11 February 2015, the practitioner practised as a Consultant Psychiatrist in private practice in The Rocks, Sydney (The Rocks Practice). Between 2007 and 2010 the practitioner treated Patient A as an in-patient at Mosman Private Hospital. The practitioner also consulted with Patient A at the Lindfield Practice on a few occasions in December 2007. The practitioner consulted with Patient A at The Rocks Practice between April 2010 and July 2014, although there were no consultations in 2013. Patient A was 19 years old when he was first admitted to Mosman Private in 2007. Patient A had a reported history of polysubstance abuse, anxiety, depression and symptoms of psychosis (possibly drug induced). Between 15 July 2011 and 11 November 2011 the practitioner consulted with Patient B on 10 occasions at the Lindfield Practice. Patient B was 27 years old when he first consulted with the practitioner. Patient B suffered from severe alcoholism with atrophy of the hip joints and was referred to the practitioner for management of his alcoholism."

Complaint 1 1. The Commission alleges that in the period 2010 to 2011 in his private rooms at The Rocks Practice, the Practitioner engaged in inappropriate sexual conduct with Patient A by engaging in mutual masturbation with him on two occasions and engaging in penetrative sexual intercourse with Patient A on one occasion; the Practitioner engaged in inappropriate conduct because he failed to cease treating Patient A following the first instance of sexual contact; failed to arrange for Patient A's treatment to be referred to another psychiatrist; and continued to treat such patient until July 2014. 2. It is also alleged that on 11 November 2011 at his Lindfield Practice the Practitioner failed to maintain appropriate professional boundaries with Patient B in that he inappropriately massaged Patient B's legs and said to Patient B "Do you want me to go any higher?", in circumstances where the Practitioner was sexually attracted to Patient B.

Complaint 2 1. The Commission alleges that the Practitioner is guilty of unsatisfactory professional conduct under s.139B of the National Law in that the Practitioner has engaged in conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, 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 engaged in improper or unethical conduct in relation to the practice or purported practice of medicine. It is alleged that the following particulars are capable of establishing unsatisfactory professional conduct or, when taken together, are capable of establishing unsatisfactory professional conduct. 2. Under Complaint 2 it is alleged that the Practitioner prescribed a Schedule 8 drug of addiction, namely Methadone/Physeptone to Patient A on dates and in quantities referred to in a schedule attached to the Complaint for a purpose that did not accord with the recognised therapeutic standard of what is appropriate in the circumstances, contrary to clause 79 of the Poisons and Therapeutic Goods Regulation 2008 ("PTGR"). 3. Secondly, it is alleged that the Practitioner, when prescribing such drugs, failed to identify and contact Patient A's treating practitioners, past and present, to ensure the appropriateness of such prescription; develop a treatment plan for Patient A; develop a plan around treatment adherence to reduce the risk of medication misuse or diversion by Patient A. 4. Further, it is alleged under such complaint that the Practitioner prescribed a Schedule 8 drug of addiction, namely Methadone/Physeptone to Patient A in the quantities and on the dates referred to in the Schedule to the Complaint in circumstances where the Practitioner was not Patient A's nominated prescriber on the NSW Opioid Treatment Program ("OTP") and, further, the Practitioner did not hold an authority to prescribe such drugs, contrary to s.28 of the Poisons and Therapeutic Goods Act 1996 ("PTGA"). 5. Further, it is alleged that the Practitioner prescribed a Schedule 8 drug of addiction, namely Methadone/Physeptone to Patient A as aforesaid where Patient A was exhibiting drug-seeking behaviours; the Practitioner was not an accredited NSW OTP prescriber; and the Practitioner lacked experience in treating patients with significant drug-seeking behaviours. 6. Under this Complaint it is also alleged that the Practitioner prescribed a Schedule 4D prescribed restricted substance, namely Alprazolam, to Patient A on the dates and in the quantities set out in the schedule for a purpose that did not accord with the recognised therapeutic standard of what is appropriate in the circumstances, contrary to clause 33 of the PTGR, and contrary to clause 79 of the PTGR. 7. Further, as with the previous drug, the Practitioner failed to identify and contact Patient A's treating practitioners, nor to develop a treatment plan, nor to develop a plan to reduce the risk of medication misuse or diversion, nor to utilise non-drug anxiety treatment such as cognitive behavioural therapy ("CBT"). 8. The Practitioner is also alleged to have prescribed a Schedule 8 drug of addiction, namely Dexamphetamine, to Patient A in accordance with the schedule attached to the Complaint in circumstances contrary to s.79 of the PTGR. 9. It is also alleged the Practitioner prescribed a Schedule 8 drug of addiction, namely Dexamphetamine, to Patient A on 3 April 2014 in the quantity of 100 x 5mg tablets with 5 repeats, without obtaining an authority to prescribe Dexamphetamine to Patient A, contrary to s.28 of the PTGA. Schedule A to Complaint 1 identifies the drugs, the date of prescription and the dosage. 10. Further, the Practitioner failed to adequately monitor Patient A's consumption of Dexamphetamine tablets and the quantities prescribed in order to minimise the risk of medication misuse or diversion by Patient A.

Complaint 3 1. It is alleged that the Practitioner is guilty of unsatisfactory professional conduct under s.139B(b) of the National Law in that he breached clause 4 and Schedule 1 of the Medical Practice Regulation 2008 (repealed) and breached clause 7 and Schedule 2 of the Regulation. 2. The particulars in support of Complaint 3 allege the Practitioner failed to keep adequate records of his treatment of Patient A at The Rocks Practice contrary to clause 4 and Schedule 1 of the Medical Practice Regulation 2008 for the period 7 April 2010 to 30 June 2010 and clause 7 and Schedule 2 of such Regulation for the period 1 July 2010 to 22 July 2014. In particular, it is alleged that the Practitioner failed to adequately record each consultation with such patient; failed to obtain a thorough history including substance misuse history; a history of relevant past treatment, a comprehensive assessment; a mental state examination; a treatment plan; the purpose for which medications were prescribed; the dose, frequency and duration of medications prescribed; correspondence with Patient A's referring general practitioner and other treating specialists. 3. Further, in respect of Patient B at the Lindfield Practice, contrary to clause 7 and Schedule 2 of the Regulation, the Practitioner failed to adequately document a record of each consultation including the date and the Practitioner's name; an initial assessment of Patient B; details of Patient B's presentation and issues discussed; a diagnosis; a treatment plan for Patient B; details of the massage provided by the Practitioner to Patient B on or around 11 November 2011; and correspondence to Patient B's referring general practitioner and other treating specialists.

Complaint 4 1. Complaint 4 alleges that the Practitioner is guilty of unsatisfactory professional conduct under s.139B of the National Law in that he has, firstly, engaged in conduct that demonstrates the judgment possessed by the Practitioner in the practice of medicine is significantly below the standard reasonably expected of a practitioner or an equivalent level of training or experience; and/or engaged in improper or unethical conduct relating to the practice or purported practice of medicine. 2. The particulars relied upon are stated to be as for Complaint 1, and more particularly that between 7 April 2010 and 28 October 2014 the Practitioner inappropriately self-prescribed medications including Schedule 4D prescribed restricted substances on the dates and in the quantities set out in the Schedule B attached to the Complaint.

Complaint 5 1. Complaint 5 alleges that the Practitioner is guilty of professional misconduct under s.139E of the National Law in that he has engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of his registration or has engaged in more than one instance of unsatisfactory professional conduct that, when considered together, amount to conduct sufficient to justify the suspension or cancellation of registration. 2. The particulars to Complaint 5 encompass the facts alleged in Complaints 1 to 4. 3. The Practitioner did not deny any of the conduct alleged against him in proceedings 2016/00378716 (1620154). It should be observed that such proceedings were commenced after a complaint was made by Patient A to a treating psychiatrist who referred the allegations to the Commission in respect of Patient A. During the conduct of an inquiry under s.150 of the National Law, the Practitioner was asked whether there were any other incidents of a similar nature in which he had engaged with his patients in conduct similar to that referred to. The Practitioner then volunteered that he had engaged in conduct with Patient B. Accordingly, the proceedings against the Practitioner were, in these proceedings, confined to the conduct referred to with regard to those two patients. However, the HCCC then became aware of further conduct which has given rise to further proceedings.

Proceedings 2017/00089410 ("the Second Complaint") 1. The background to the Second Complaint is relevantly stated as follows: "Between 2007 and 2011 the Practitioner worked as a Visiting Medical Officer at Mosman Private Hospital (Mosman Private). Patient C was admitted to Mosman Private under the care of the practitioner between 16 August 2010 and 15 September 2010. Patent C, who was 36 years old at the time, was admitted due to exacerbation of his bipolar and schizoaffective disorder resulting from pending court proceedings. His admission directly followed an involuntary admission at Hornsby Hospital which resulted from Patient C expressing suicidal intent to his treating psychiatrist. Records from Mosman Private indicate that the Practitioner consulted with Patient C on at least 6 occasions on 17 August 2010, 27 August 2010, 31 August 2010, 5 September 2010, 7 September 2010 and 10 September 2010. The Practitioner had also treated Patient C during an earlier admission to Mosman Private in 2007." 1. In these proceedings, four complaints are made against the Practitioner. The Practitioner denied virtually all of the conduct referred to, other than the allegation that he failed to maintain professional records.

Complaint 1 1. In this Complaint it is alleged that the Practitioner failed to provide adequate care and management for Patient C because he failed to contact Patient C's other treating practitioners, including two psychiatrists and a clinical psychologist; failed to obtain any information from any of Patient C's treating practitioners concerning Patient C's history and the nature of their treatment; failed to discuss a treatment plan with any of Patient C's treating practitioners; and failed to put an adequate treatment plan in place at any point during Patient C's admission. 2. It is also alleged that in consultations with Patient C between 16 August 2010 and 15 September 2010 the Practitioner inappropriately requested Patient C to describe in detail conduct in respect of which the patient had been charged relating to alleged criminal conduct in circumstances where there was no relevant therapeutic purpose for such discussions or seeking such information; the Practitioner did not record any such discussions; the Practitioner did not contact Patient C's treating practitioners including the psychiatrist who was treating Patient C for a psychosexual disorder; the Practitioner did not make reference to discussing the nature of the alleged offences in the treatment plan recorded on 17 August 2010. 3. It is also alleged that in consultations with Patient C in the above period, the Practitioner requested Patient C to describe in detail sexual activity in which the patient had been engaged in with sexual partners in the past where it was unnecessary to do so; the Practitioner was aware or ought to have been aware that Patient C suffered a psychosexual disorder and was being treated by another psychiatrist in relation thereto; and the Practitioner did not record any treatment plan addressing the psychosexual issues. 4. Further, it is alleged that on discharge from Mosman Private on 15 September 2010 the Practitioner provided a discharge summary signed by him on 17 September 2010 which was inadequate for the purpose of ensuring or assisting Patient C to receive appropriate post-discharge therapeutic management in that his final diagnosis of Patient C on discharge was "generalised anxiety disorder" and was inconsistent with other diagnoses made and information obtained during the admission; the Practitioner failed to record adequate follow-up arrangements for Patient C's ongoing care and treatment; the information recorded was very brief and inconsistent with earlier notes made by the Practitioner.

Complaint 2 1. It is alleged that the Practitioner was guilty of unsatisfactory professional conduct under s.139B of the National Law in that he engaged in conduct below the standard reasonably expected of a practitioner or engaged in improper or unethical conduct arising out of the particulars to Complaint 2. 2. The particulars to Complaint 2 allege that during consultations with Patient C between 16 August 2010 and 15 September 2010 the Practitioner made inappropriate comments to Patient C's alleged criminal conduct (which involved sexual conduct with children), saying words to the effect "society doesn't always understand the way things are but it's okay"; "it was all right to do this"; "in other countries it is legal"; "back in Greek times it was okay"; "it should be allowed"; "I don't agree with the law"; and that the conduct "wasn't that bad". 3. Further, it is alleged that during the treatment of Patient C between 16 August 2010 and 15 September 2010 by the Practitioner, he had a conversation with Patient C concerning the forthcoming criminal proceedings and offered to provide false or misleading information to the legal representative for use in court, saying words to the effect: "I'm willing to lie for you and willing to write you a report. Get your solicitor to contact me and I will talk to him." 4. Further, it is alleged that during the above period the Practitioner failed to maintain appropriate professional boundaries with Patient C in that on two occasions he looked into Patient C's eyes while Patient C was talking about his sexuality and sexual history and invited Patient C to engage in a sexual act with him by saying "Suck my cock".

Complaint 3 1. In this Complaint it is alleged that the Practitioner contravened the provisions of the Regulation by reason of the particulars. 2. The particulars to Complaint 3 allege the Practitioner failed to make and keep adequate records of his treatment of Patient C in the relevant period (16 August 2010 to 15 September 2010) contrary to clause 7 and Schedule 2 of the Regulation because he failed to record a comprehensive admission assessment and treatment plan; sufficient corroborative information from other mental health practitioners; specific information regarding treatment plans during admission; sufficient detail in the progress note; a discharge summary which was inaccurate and inadequate.

Complaint 4 1. In respect of this Complaint it is alleged that the Practitioner breached s.139E of the National Law because he has engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of his registration; or engaged in one or more instances of such conduct which, when considered together, constitute conduct of a sufficiently serious nature to justify suspension or cancellation. 2. The particulars rely upon the particulars already provided under Complaints 1 to 3 inclusive and state that particulars 2 and 3 to Complaint 2 are of themselves sufficient to establish professional misconduct.

Reply 1. In the Practitioner's Reply, the entirety of Complaints 1, 2, 3 and 4 are denied except that in respect of Complaint 1, he admits providing the patient discharge summary for Patient C on his discharge from Mosman Private Hospital on 15 September 2010 but denies that the discharge summary prevented the patient from receiving proper treatment. Further, the Practitioner admits the content of Complaint 3, namely that his record-keeping was inadequate.

The Hearing 1. The hearing to date, which took place on 14, 15, and 16 August 2017, has been confined to the question of whether the acts alleged against the Practitioner are established ("Stage 1"). The hearing on any disciplinary findings, if necessary, will arise in respect of an adjourned hearing ("Stage 2"). 2. During the course of the hearing, oral testimony was received by video link from Patient C, from the Practitioner and from Dr Murray Wright, consultant psychiatrist, who also provided written reports relating to the question of whether the conduct alleged against the Practitioner fell below the professional standards required of a psychiatrist. Arising out of the evidence and the submissions, the Tribunal has considered the matters hereunder.

Consideration 1. The Tribunal is mindful of the professional training and background of the Practitioner as is set out earlier in this Decision. The Tribunal notes that since the Practitioner was first registered to practise in New South Wales on 2 January 1987, no complaints have been made against him until the matters now before the Tribunal. 2. The Tribunal accepts that during 2010 and 2012 the Practitioner was suffering from increased personal stress because his mother, who had suffered from dementia since 2015 and whose condition was deteriorating, was refusing to move into care. In 2009 the Practitioner's mother was diagnosed with breast cancer and underwent surgical excision followed by chemotherapy. During this period the Practitioner would often sleep at his mother's home whilst having to support himself and his mother. The Practitioner's sisters all had young children, and accordingly the care of his mother fell upon the Practitioner. 3. In April 2012 the Practitioner's mother fell and fractured her hip, and whilst in hospital was diagnosed with Acute Myeloid Leukaemia, secondary to the chemotherapy, which was not treatable. Thereafter she required a full-time carer at home. During her illness, being the combination of both leukaemia and dementia, she would telephone the Practitioner frequently during the day, sometimes at ten minute intervals, whilst he was working, leaving distressing messages on the Practitioner's answering machine. 4. The Practitioner states that this was a particularly traumatic time. During 2011 he learnt that his long-term partner apparently had another relationship which the Practitioner states was shocking and devastating. Accordingly, during the period from 2009 to 2012 the Practitioner states that he was very stressed, depressed and in 2012 he commenced to self-prescribe antidepressants. His mother died in March 2013. 5. The Tribunal notes that the Practitioner was suspended by the Medical Council following an inquiry under s.150 of the National Law. However, he was subsequently allowed to practise, subject to conditions. Presently the Practitioner is working for the insurance industry, engaged in the preparation of medico legal reports. 6. In assessing the allegations made, the Tribunal will have regard to the definition of "unsatisfactory professional conduct" as set out in s.139B of the National Law, as follows: "(1) "Unsatisfactory professional conduct" of a registered health practitioner includes the following – (a) Conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised by the practitioner in the practice of the practitioner's profession is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. ... (i) Any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession." 1. In assessing the conduct, the Tribunal shall also have regard to the definition of "professional misconduct", contained in s.139E of the National Law as follows: "For the purposes of this Law, "professional misconduct" of a registered health practitioner means: (a) unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; or (b) more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficient serious nature to justify suspension or cancellation of the practitioner's registration."

Involvement with Patient A 1. In 2009/2010 Patient A consulted the Practitioner at Mosman Private Hospital. Patient A had a history of substance abuse and had expressed anxiety about a relationship with a young woman, indicating that he had panic attacks. He asked to be treated to improve his sexual functioning with his girlfriend and requested that the Practitioner prescribe a benzodiazepine tranquilizer to assist him in his relationship. Subsequently, the Practitioner obtained the patient's school records in relation to the prescribing of psycho-stimulants. The Practitioner was not aware that Patient A had been a heavy substance user and therefore did not seek a second opinion. 2. Early in 2011 the Practitioner arranged for Patient A to attend Dr Errol Jacobson at Sydney Clinic, for a second opinion upon realising that Patient A had a history of substance abuse. The second opinion was received which recommended a trial of stimulant treatment medication. 3. On 26 May 2011 the Practitioner made his second application to the New South Wales Health Department (the first application being made on 12 June 2010) to prescribe dexamphetamine to Patient A. 4. During 2010 to 2011 the Practitioner acknowledges that he violated the doctor/patient boundaries with Patient A. The Practitioner maintained that the patient attempted to instigate physical contact at Mosman Hospital which was initially resisted, but then he succumbed. The physical contact consisted of two occasions of mutual masturbation and one instance of sexual intercourse which occurred at his private consulting rooms. The Practitioner states that following the act of sexual intercourse he realised the seriousness of his offence. 5. Despite such realisation, he continued to treat Patient A. In 2012 the Practitioner became aware that his prescription pad and a pen had been stolen and that a number of prescriptions had been forged. The Practitioner was able to contact the pharmacist and cancel prescriptions. 6. The Practitioner did not see Patient A for approximately two years. On 11 March 2014 he made contact with the Practitioner. During this consultation the Practitioner says that Patient A was concerned about his sexual orientation and the Practitioner prescribed Alprazolam. The next day he telephoned the Practitioner and stated that he had mislaid the prescription and required a repeat. Subsequently, in April 2014 the Practitioner received a letter from Dr Michael Atherton in which Dr Atherton considered that Patient A had schizophrenia. 7. On 10 June 2014 the Practitioner states that he telephoned NSW Pharmaceutical Services to cancel the Practitioner's most recent application for authority to prescribe Patient A Dexamphetamine, having received information from Dr Atherton that the patient had overdosed in March 2014. 8. On 22 July 2014 Patient A rang the Practitioner and begged him to provide a consultation. At such consultation the patient denied any drug use, but he requested a prescription for Dexamphetamine and Alprazolam. The following day, Patient A again telephoned requesting an appointment and seeking further prescriptions for Alprazolam. The Practitioner states that at this stage the patient asked him for "a hug" which was declined, and that the patient then became hostile. Accordingly, the Practitioner prescribed Alprazolam. When they were presented for prescription, three pharmacists telephoned the Practitioner to explain that Alprazolam was listed as a Schedule 8 drug and that the quantity and intervals between prescriptions needed to be written on the prescription. The Practitioner states he requested the pharmacist not to issue such medicine. The Practitioner states that he then realised that he needed to end the contact with Patient A, and on the advice of Dr Michael Diamond (psychiatrist of the Practitioner), the Practitioner arranged for a letter to be sent to the patient informing him not to contact the Practitioner any further. Despite such letter, Patient A continued to make contact by telephone with the Practitioner. 9. The matter involving Patient A and the Practitioner was revealed when the patient informed Dr Atherton of the sexual contact that had occurred, and Dr Atherton made a formal report to the HCCC.

Subsequent Developments 1. On Thursday 12 February 2015 a hearing took place pursuant to s.150 of the National Law concerning the complaint raised in respect of the Practitioner's conduct with Patient A. During the course of such hearing, the Practitioner was asked whether the matters concerning Patient A was an isolated incident. To his credit, the Practitioner revealed that there was "only one other instance around the time that there was a patient that I'd allowed myself to become too close to…". Such patient is referred to hereunder as Patient B.

Patient B 1. Patient B was a 29 year old man who had consulted the Practitioner for an alcohol addiction problem. The Practitioner saw Patient B on 6 occasions between July 2011 and November 2011. On the last consultation, namely on 11 November 2011, the Practitioner offered to massage the legs of Patient B and proceeded to do so. At some stage he asked the patient whether he would like the massage "to go higher". 2. The Practitioner does not dispute the correctness of such complaint. During the hearing before the Tribunal, the Practitioner said that "part of him" wanted to touch Patient B's penis when he made the offer "to go higher".

Consideration of specific complaints

Proceedings 2016/00378716 (1620154) 1. The Tribunal will now consider the specific matters relied upon by the HCCC in respect of Patient A and Patient B. 2. In respect of Complaint 1, the Tribunal finds that the engaging in sexual conduct, both by the occasions of mutual masturbation and by the Practitioner engaging in penetrative sexual intercourse, is conduct which contravenes the provisions of clause 8.2 entitled "Professional Boundaries" as contained in the publication issued by the Medical Board of Australia entitled "Good Medical Practice: A Code of Conduct for Doctors in Australia" ("the Code"). Such provisions relevantly state: "Professional boundaries are integral to a good doctor-patient relationship. They promote good care for patients and protect both parties. Good medical practice involves: 8.2.1 Maintaining professional boundaries 8.2.2 Never using your professional position to establish or pursue a sexual, exploitative or other inappropriate relationship with anybody under your care…" 1. The Royal Australian and New Zealand College of Psychiatrists has issued a Policy entitled "Zero Tolerance Policy on Proven Sexual Boundary Violations". Such Policy refers to the prohibition on psychiatrists exploiting patients as follows: "2.1 Exploitation of patients, whether physical, sexual, emotional, financial or through other benefits is unacceptable; the trust embodied in a doctor-patient relationship must be respected." 1. Having considered the specific sexual conduct engaged in by the Practitioner as set out in the particulars of Complaint 1, the Tribunal finds that the Practitioner has engaged in conduct that demonstrates unsatisfactory professional conduct under s.139B(1)(a) and (l) of the National Law. 2. As to Complaint 2, the Tribunal is satisfied that the Practitioner prescribed a Schedule 8 drug of addiction, namely Methadone/Physeptone to Patient A in the quantities and on the dates specified in the Schedule to the Complaint; prescribed a Schedule 8 drug of addition, namely Methadone/Physeptone to Patient A in circumstances where the Practitioner was not Patient A's nominated prescriber of the NSW Opioid Treatment Program (OTP); that the Practitioner did not hold an authority to prescribe Methadone/Physeptone to Patient A contrary to s.28 of the PTGA; and that the drugs were prescribed in circumstances where Patient A was exhibiting drug-seeking behaviours; the Practitioner was not an accredited NSW OTP prescriber; and the Practitioner lacked experience in treating patients with significant drug-seeking behaviours. Such drugs were prescribed on 47 occasions and in substantial quantities between 11 April 2010 and 13 September 2014 as set out in the Schedule A to Complaint 1. 3. The Tribunal finds that the allegations in Complaint 2 are established, namely that the Practitioner is guilty by reason therefore in respect of each of the particulars referred to in support of Complaint 2. It follows that the Tribunal is satisfied that the Practitioner is guilty of unsatisfactory professional conduct under s.139B(b) of the National Law. 4. As to Complaint 3, the Practitioner has produced no records to satisfy the requirements of clause 4 and Schedule 1 of the Medical Practice Regulation 2008 in respect of the period 7 April 2010 to 30 June 2010 and clause 7 in Schedule 2 of the Health Practitioner Regulation (NSW) Regulation 2010 for the period 1 July 2010 to 22 July 2014 as alleged in the particulars to Complaint 3. 5. It follows that the Tribunal is satisfied that the Practitioner is guilty of unsatisfactory professional conduct under s.139B(b) of the National Law. 6. As to Complaint 4, it is alleged that the Practitioner inappropriately self-medicated on the dates and in the quantities set out in the Schedule marked "B" to the Complaint. 7. The Medical Council of NSW has issued a publication entitled "Guideline for Self-Treatment and Treating Relatives". The Guideline refers to the endorsement by the Council that all medical practitioners should have their own, independent general practitioner and that it is not advisable for practitioners to initiate treatment (including prescribing) for themselves or immediate family members. 8. The Tribunal is aware of the evidence led by the Practitioner that he was in need of medication. However, such need does not excuse a failure to observe the appropriate standards. Schedule B shows that between 7 April 2010 and 28 October 2014 the Practitioner regularly prescribed medication for himself in a total of 89 prescriptions written by him for himself. 9. The Tribunal finds that such conduct constitutes unsatisfactory professional conduct under s.139B of the National Law. 10. As to Complaint 5, the complaint alleges that the Practitioner is guilty of professional misconduct under s.139E of the National Law. Taking into account the matters referred to in Complaint 1 which is relied upon and the cumulative findings referred to in respect of Complaints 1-4 inclusive, the Tribunal considers that the Practitioner has engaged in professional misconduct.

Proceedings 17/89410 1. These proceedings wholly relate to conduct arising in respect of Patient C. The circumstances surrounding Patient C's treatment by the Practitioner resulted from a complaint by another psychiatrist who was treating Patient C. 2. Patient C was admitted to Mosman Private Hospital on 16 August 2010. On 17 August 2010 the Practitioner had his first consultation with Patient C. The notes record a history of depression, feelings of suicide and legal problems resulting from a court case, namely the charges brought against Patient C arising out of an alleged indecent assault by him committed on a minor. The patient had, prior to his admission to Mosman Private Hospital, received treatment at the psychiatric unit at Hornsby Hospital. 3. The Practitioner ascertained that Patient C was currently seeing Dr Craig Wilson, psychiatrist; Dr Jeremy O'Dea, psychiatrist; and Mr Brian Kearney, psychologist, each of whom were involved because of the principal treating specialist of Patient C, namely Dr Misrachi. 4. The Practitioner then made a diagnosis of Patient C as bipolar disorder; alcohol dependent; borderline traits; homosexual. He then prepared and wrote on the hospital notes what he described as his treatment plan as follows: "1. Continue meds 2. Low risk 3. UAL (unaccompanied leave) 4 hours AL (accompanied leave) 6 hours 4. Plan for about 1-2 weeks here for containment and treatment." 1. The second visit occurred on 28 August when the Practitioner noted the patient was very anxious. Further consultations occurred on 5 December 2010 in which it was noted that the patient remained very anxious "in relation to charges against him"; 7 September when it was noted that the patient was agitated; 10 September 2010, 14 September 2010 where the note reads: "Left before I could see him!!" 2. There is a conflict concerning the testimony of Patient C concerning the sexual nature of the conversations held with the Practitioner and of the request made by the Practitioner to engage in sexual conduct, namely "suck my cock". Whilst Patient C was clearly distressed when giving his evidence, and whilst his memory was not good in respect of certain matters, he was adamant that the conduct referred to by him in his testimony and which is contained in the particulars, occurred. The Tribunal has considered the evidence of the Practitioner. It concludes that the testimony of Patient C is credible and accepts that the conduct engaged in took place. The Tribunal reaches such conclusion, upon the testimony of Patient C, without having resort to the admission of the Practitioner that he is sexually attracted to males and without taking into consideration the similar fact evidence concerning the patients referred to above In Complaint 1 The Tribunal rejects the evidence of the Practitioner that such conduct did not occur.

Specific Complaints 1. The Tribunal will now address the specific complaints contained in proceedings 17/89410 (the Second Complaint). 2. Complaint 1 is supported by particulars. The first particular alleges that the Practitioner failed to provide adequate care and management for Patient C because he failed to contact other treating practitioners which included at least two psychiatrists and a clinical psychologist. Whilst the Practitioner states that he thought he attempted to contact by telephone two of the Practitioners, the Tribunal observes there is no note or record of such attempted communication. The Practitioner testified that he recalled a meeting with two of the psychiatrists at the hospital. It appears that such meeting was not planned, but was coincidental. Even if such meeting were held (and there is no supporting documentary evidence), it was subsequent to the admission. Further, it is apparent that the Practitioner had no information from the treating practitioners of the treatment history or plan. The practitioner assumed responsibility for Patient C while that patient was in his care and supervision. It was essential that the Practitioner at least communicate with Dr Misrachi concerning the treatment the patient had received, the diagnosis, and medication. No contact was made by the practitioner with Dr Misrachi. 3. The Tribunal considers that the Complaint is established. 4. It is further alleged that during the period 16 August 2010 and 15 September 2010 the Practitioner inappropriately requested Patient C to discuss in detail the conduct of the alleged criminal conduct when there was no relevant therapeutic purpose for such enquiries; did not record such enquiries; did not contact the patient's treating practitioners; and did not make reference to discussing the alleged offences in the treatment plan. 5. The Practitioner stated that he did enquire concerning the nature of the offences with Patient C. It is correct that he did not record the discussions or discuss the matters with the treating practitioners. However, we are not convinced that such necessarily constitutes conduct suggesting inadequate care and management. Accordingly, particular 2 is not upheld. 6. As to particular 3, it is alleged that the Practitioner sought details of the sexual activity engaged in in his past where it was unnecessary to do so, and that he ought to have been aware that Patient C was being treated for a psychosexual disorder. 7. For the reasons referred to in the preceding paragraph, we are not satisfied that the enquiries made were not for a legitimate purpose, and accordingly we reject such particular as founding the basis for a finding of unsatisfactory professional conduct. 8. As to particular 4, it is alleged that the patient's discharge summary was inadequate to enable Patient C to obtain post-discharge therapeutic management. The "generalised anxiety disorder" was diagnosed and there was no record of any follow-up arrangements made for Patient C's ongoing care and treatment. 9. The Tribunal is not satisfied that such constitutes sufficient reason to make a finding adverse to the Practitioner. It appears that Patient C was discharged without seeing the Practitioner and that the Practitioner was aware that such patient was being treated by other psychiatrists. Accordingly, this particular is not upheld.

Complaint 2 1. Under Complaint 2 it is alleged that the Practitioner engaged in unsatisfactory professional conduct contrary to s.139B of the National Law. 2. As to the first particular in support of Complaint 2, the Practitioner is alleged to have made comments (set out in the Complaint) to the effect that the conduct engaged in, in relation to the charges of indecent assault, were not serious. In his testimony, the Practitioner stated that he may have made comments to try to comfort Patient C. During his testimony the Practitioner seemed to express the view that in the particular circumstances of the charge, namely where the minor involved was 15 years of age, he did not regard such conduct where it involved post-puberty males as being serious. 3. The Practitioner prevaricated when such words and statements were put to him. The tenor of his responses was such that the Tribunal finds that he did not dispute that such words were used. Further, the views he expressed in his testimony were consistent with the use of such words. For example, he stated that whilst Patient C's alleged conduct was contrary to law, his personal view was: "According to me … doesn't matter". During his evidence, the Practitioner expressed views clearly indicated that sexual conduct between adult males and post-pubescent youths was not untoward. 4. The Tribunal finds that words as alleged were said by the Practitioner Taking into consideration the fact that the Patient C had a psycho-sexual disorder and was facing criminal charges, it was most unwise of the Practitioner to have talked to the patient in this way. The alleged victim of that alleged indecent assault was 15 years of age. It is satisfied that such words necessarily constitute a sufficient ground to warrant a finding of unsatisfactory professional conduct. 5. As to particular 2, it is alleged that the Practitioner said words to the effect: "I'm willing to lie for you and willing to write a report. Get your solicitor to contact me and I will talk to him." 1. The Practitioner disputed such version but said that he did state to Patient C that if his solicitor wrote to him he would provide a report. The Practitioner vehemently denied any suggestion that he was "willing to lie" to support Patient C. The Practitioner states that he may have used words to the effect that he would write a report if the Patient C's solicitor contacted him, and that his words have been misconstrued. 2. The Tribunal can be satisfied, on the standard of proof required; namely the test in Briginshaw and Briginshaw (1938) 60 CLR 336, that the words were said in the context as alleged. Patient C was clear in his recollection that such words were used. He said: "Yes, he definitely said that. The following exchange occurred: "Q: You formed that impression, didn't you? It was your impression? A: Yes. He definitely said that. Q: You recall him saying "I'm willing to lie for you and write a report"? A: That's what he said. I don't know what session it was, but that was the proposal he made." 1. Accordingly, this particular is established. 2. Particular 3 alleges that between 16 August 2010 and 15 September 2010 the Practitioner failed to maintain professional boundaries on two occasions. The first occasion alleges that the Practitioner "looked into Patient C's eyes while Patient C was talking about his sexuality and sexual history". 3. The Practitioner acknowledged that he would look into his patients' eyes while discussing their situation, but that there was no sinister intent in such eye contact. 4. The conduct complained of could be open to various interpretations,, some of them innocent and others sinister. It may have constituted communication interaction: but it may have amounted to attempted seduction or domination. Clearly it made the patient uncomfortable and the patient had a vivid recollection of such conduct occurring. In the circumstances however, because of the varying interpretations available, we are not satisfied to the requisite standard of proof, that this complaint is established. 5. The Tribunal upholds the allegation that the Practitioner invited Patient C to engage in a sexual act. The Tribunal was impressed by the testimony of Patient C, and accepts that the words "Suck my cock" were said by the Practitioner. The Tribunal finds that Patient C is a credible witness. The Tribunal also observes that, since the credit of Patient C is accepted by the Tribunal it has reached such conclusion without having regard to any similar fact evidence in respect of the patients referred to in Complaint 1. 6. The Tribunal's finding is made easier, however, by the admission made by the Practitioner during the s.150 hearing that he is attracted to males. 7. The Tribunal also observes that Patient C complained to the admitting nurse at Mosman Private Hospital, when admitted on 24 February 2014, that the Practitioner had asked Patient C to perform oral sex on him whilst he was in treatment and that the Practitioner had made a sexual suggestion to him. 8. Further, the Tribunal notes that when Patient C's treating psychiatrist reviewed Patient C on 24 February 2014, Patient C reported "issues re previous treating psychiatrist at MPH". 9. Accordingly, it follows that the boundaries of practitioner and client were crossed and that such conduct is unsatisfactory professional conduct under s.139B of the National Law.

Complaint 3 1. This Complaint relates to the record-keeping. It is alleged that the Practitioner failed to make and keep adequate records of his treatment of Patient C. 2. Dr Murray Wright, the NSW Chief Psychiatrist, has provided reports to the Tribunal and has provided oral testimony. In his opinion, the treatment plan, although brief, was regarded by him as "barely adequate". However, the remaining requirements, namely seeking corroborative information from other mental health practitioners, seeking specific information regarding treatment plans during admission, the keeping of progress notes and the keeping of a full discharge summary, were absent. 3. The Commission seeks an order of suspension of the Practitioner under s.165L(3)(c) of the National Law, in view of the Practitioner's conduct, both admitted and as found by the Tribunal. The Tribunal considers that such an order is warranted forthwith. 4. We note that the Practitioner admits the particulars to Complaint 3. We uphold such complaint and find that the Practitioner has contravened a provision of the Health Practitioner Regulation (NSW) Regulation 2010.

Complaint 4 1. In this Complaint, the Commission alleges that the complaints already referred to and the particulars constitute professional misconduct under s.139E of the National Law. In view of the conduct which is already referred to, and found to have been established, the Tribunal upholds such complaint. 2. Submissions were made to the effect that since the Practitioner was treating Patient C while two of his treating psychiatrists were on leave, the Practitioner was merely a "caretaker" and that full records were unnecessary. The Tribunal rejects such submission. Patient C was in the care of the Practitioner, and Patient C was entitled to have thorough and complete records made of his condition and of his treatment.

Orders The Tribunal makes the following findings and Orders: 1. The Practitioner is guilty of professional misconduct in respect of the complaints referred to in in proceedings 2016/00378716 (1620154). 2. The Practitioner is guilty of professional misconduct in respect of the findings made against the Practitioner in proceedings 2017/00089410. 3. The Practitioner be suspended from practice forthwith, pursuant to s.165L(3)(c) of the National Law.

******** 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 September 2017