Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Martin [2022] NSWCATOD 33 Hearing dates: 15 – 17 December 2021; 8 March 2022; final submissions received 9 March 2022 Date of orders: 15 March 2022 Decision date: 15 March 2022 Jurisdiction: Occupational Division Before: The Hon D A Cowdroy AO QC ADCJ, Principal Member Dr H Haikal-Mukhtar, Senior Member Dr K Keenan, Senior Member Honorary Associate Prof P Macneill, General Member Decision: (1) Pursuant to s 149C(1) of the National Law, the registration of the Respondent as a health practitioner be suspended for a period of 6 months from the date of these orders. (2) The Respondent pay the costs of these proceedings as provided by clause 13 of the Schedule 5D of the National Law. (3) Pursuant to s 64 of the Civil and Administrative Tribunal Act 2013, an order is made prohibiting the disclosure to any person or entity of the name of patient A. Catchwords: HEALTH – professional registration and discipline – medical practitioner prescribing Schedule 8 drugs inappropriately and in absence of recorded justification – failing to make complete clinical records of consultations – forming personal sexual relationship with patient – practitioner continuing to act as practitioner to the patient for many years following cessation of their intimate relationship – disciplinary sanction Legislation Cited: Health Practitioner Regulation National Law (NSW) Cases Cited: Bahramy v Medical Council of NSW [2014] NSWCATOD 116 Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41 Council of the New South Wales Bar Association v EFA (a pseudonym) [2021] NSWCA 339 Health Care Complaints Commission v Brush [2015] NSWCATOD 120 Health Care Complaints Commission v Chen [2016] NSWCATOD 144 Health Care Complaints Commission v Do [2014] NSWCA 307 Health Care Complaints Commission v Dr Della Bruna [2014] NSWCATOD 31 Health Care Complaints Commission v Echano [2018] NSWCATOD 30 Health Care Complaints Commission v Khan (No. 2) [2019] NSWCATOD 37 Health Care Complaints Commission v Philipiah [2013] NSWCA 342 Latoudis v Casey [1990] HCA 59 Prakash v Healthcare Complaints Commission [2006] NSWCA 153 Qasim v Health Care Complaints Commission [2015] NSWCA 282 Roberts v Medical Council of New South Wales [2015] NSWCATOD 35 Spicer v New South Wales Medical Board & Ors (unreported, NSW Court of Appeal, CA 3 of 1981, 19 February 1981) Ziems v Prothonotary of the Supreme Court of NSW [1957] HCA 46 Texts Cited: Medical Board of Australia, Guidelines: Sexual Boundaries in the Doctor-Patient Relationship (December 2018) New South Wales Medical Board, Code of Professional Conduct – Good Medical Practice (July 2005) Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Paul Coghlan Martin (Respondent) Representation: Counsel: D Pace (Applicant) P Aitken (Respondent) Solicitors: Health Care Complaints Commission (Applicant) HWL Ebsworth Lawyers (Respondent) File Number(s): 2021/00197224 Publication restriction: Pursuant to section 64 of the Civil and Administrative Tribunal Act 2013, publication of the name of patient A is prohibited. REASONS FOR DECISION 1. By Application for Disciplinary Findings and Orders dated 8 July 2021 the Applicant seeks the following orders: "1. A direction that the name and address of the witnesses listed in the Schedule to the attached Complaint not be disclosed under clause 7 of Schedule 5D of the Health Practitioner Regulation National Law (NSW) ("National Law") / an order prohibiting the disclosure of the name/s of the persons listed in the Schedule to the attached Complaint under section 64 of the Civil and Administrative Tribunal Act 2013. In the event the subject-matter of a complaint is proved or admitted, the Applicant seeks: 2. Cancellation of the Respondent's registration, pursuant to s 149C(1)(b) of the National Law, with a non-review period of 2-3 years; 3. An order that the Respondent pay the Commission's costs under clause 13 of Schedule 5D of the National Law. In the event that only some of the particulars of the complaint are proved, the Applicant may seek alternative protective orders under section 149A (caution, reprimand, counsel, etc.) section 149B (fine) and/or section 149C (suspension, cancellation or prohibition order) of the National Law." 1. The grounds of the application are stated to be as follows: "The Director of Proceedings of the Health Care Complaints Commission has determined to prosecute the attached Complaint against the Respondent pursuant to section 90B(1) of the Health Care Complaints Act 1993 alleging that the Respondent has been guilty of unsatisfactory professional conduct within the meaning of section 139B(1)(a), (b) and/or (l) and/or professional misconduct within the meaning of section 139E of the National Law." 1. The Further Amended Complaint filed on 8 December 2021 upon which the Applicant relies contains three Complaints against the Respondent which are said to constitute unsatisfactory professional conduct. The Fourth Complaint alleges that the conduct referred to in the first three complaints, when considered individually or cumulatively, is said to constitute professional misconduct. 2. The Respondent has filed an Amended Reply dated 17 December 2021 which admits three of the eight particulars as detailed later in this decision. Complaint One 1. This Complaint alleges that the Respondent is guilty of unsatisfactory professional conduct under s 139B(1)(a) and/or (l) of the National Law in that the conduct of the Respondent demonstrates that the judgment possessed or care exercised by him in the practice of medicine is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience; and/or improper or unethical conduct in such practice. 2. Each particular of complaint (namely, particulars, 1, 3, 4 and 7) is reproduced verbatim from the Further Amended Complaint dated 8 December 2021: Particulars of Complaint One "1. Between 16 May 2004 and 28 June 2019, the practitioner inappropriately prescribed Alprazolam, a Schedule 8 drug of addiction to Patient A, on the dates as set out in Schedule A to the Complaint, in circumstances where: (a) there was no record of a diagnosis; (b) the prescriptions were for an inappropriate quantity and frequency; (c) there was no Mental Health examination; (d) there was no Mental Health Assessment; (e) there was no Mental Health Plan; (f) there was no management plan including a risk assessment and treatment plan. (g) there was no referral of Patient A for further specialist treatment such as a psychologist or psychiatrist or addiction specialist; (h) the practitioner knew or ought to have known that Patient A had developed a drug dependency / addiction to benzodiazepines. 3. Between 6 September 2014 and 26 July 2019, the practitioner inappropriately prescribed Nortriptyline, a tricyclic antidepressant, to Patient A on the dates set out in Schedule B to the Complaint in circumstances where: (a) the prescriptions were for an inappropriate quantity and frequency; (b) there was no advice in relation to the dosage and frequency of the medication; (c) there was no Mental Health examination; (d) there was no Mental Health Assessment; (e) there was no Mental Health Plan; (f) there was no referral of Patient A for further specialist treatment. 4. Between 22 May 2016 and 23 June 2016 the practitioner inappropriately prescribed Temazepam, a Schedule 4D restricted substance, to Patient A on the dates set out in Schedule C to the Complaint in circumstances where, on each occasion there was no: (a) clinical indication; (b) Mental Health Examination; (c) Mental Health Assessment; (d) Mental Health Plan; (e) record of warning and side-effects discussed with Patient A. 7. On at least one occasion between September 2005 and March 2013, the practitioner performed an inappropriate pap smear and cervical examination on Patient A in circumstances where: (a) the practitioner had been in a sexual relationship with Patient A from January 2005 to May 2005; (b) there was no chaperone present; [Particulars (c) and (d) were left out of the Further Amended Complaint] (e) Patient A was already under the care of a gynaecologist; (f) STD tests were ordered without clinical indication" Complaint Two 1. This Complaint alleges unsatisfactory professional conduct in that the Respondent has engaged in improper or unethical conduct contrary to s 139B(1)(l). "1. Between approximately January 2005 to May 2005 the practitioner engaged in an inappropriate personal, sexual relationship with Patient A in circumstances where: (a) between approximately April 2001 and November 2004, the practitioner was Patient A's treating general practitioner; (b) following the cessation of the personal, sexual relationship, the practitioner continued a therapeutic relationship with Patient A until August 2019." Complaint Three 1. This Complaint alleges that the Respondent has contravened a provision of the Health Practitioner Regulation National (NSW) Regulation 2016 in that "1. The practitioner contravened Schedule 4 clause 1(2) of the Regulation in that his clinical notes for Patient A fail to adequately record: (a) Patient Health Summary; (b) relevant history and presenting problems; (c) relevant physical examinations; (d) formal Mental State examinations; (e) evidence of clinical indication for prescribing drugs of dependency; (f) formal diagnoses or differential diagnoses; (g) clinical indication for STD tests ordered; (h) specialist referral letters; (i) management plans in relation to treatment of Patient A's: (i) anxiety; (ii) depression; (iii) insomnia; (iv) drug regimes for drugs of dependency." Complaint Four 1. This Complaint alleges that the Respondent has engaged in professional misconduct as defined in s 139E of the National Law by virtue of the following: "1. Complaint One, Particulars 1 is relied upon individually. 2. Complaint Two, Particular 1 is relied upon individually. 3. Complaints One, Two and Three and the particulars are relied upon cumulatively." Applicant's Expert Evidence 1. An expert report of Associate Professor (Dr) Vicki Kotsirilos dated 29 November 2020 is relied upon by the Applicant. The report does not address the specific particulars and the report has been heavily redacted. Accordingly the Tribunal will state the conclusions which the Tribunal has reached concerning the particular conduct. The report and oral evidence of the expert and the expert's conclusions are summarised at paragraphs 11 to 35 below. Personal relationship between the Respondent and Patient A 1. The personal/sexual relationship is between the Respondent and patient A, who was a middle aged woman. The report is repetitive in the sense that it relates to the same relationship conducted in several different periods whilst the relationship existed. The respondent engaged in a sexual relationship with Patient A between January 2005 and May 2005. 2. It should be noted that the expert's report asserts that such relationship breached the Medical Board of Australia's Guideline entitled "Sexual Boundaries in the Doctor-Patient relationship" issued on 12 December 2018. Because such Guideline was not in force at the relevant time, it is not relevant; however there was in force, at the relevant time, a policy published by the Medical Council of New South Wales which was first published on 4 December 1991 and remained in force until 8 November 2011 which states, inter alia: "it is an absolute rule that a medical practitioner who engages in sexual activity with a current patient is guilty of professional misconduct." Such conduct falls significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. Prescribing of Alprazolam 1. The expert was critical of the prescribing of Alprazolam as a first line treatment for panic attacks: where other non - pharmacological treatments, such as Cognitive Behaviour Therapy (CBT), should have been the first line of treatment; of the prescribing for a long period of time, especially as the patient was drug dependent. 2. The respondent's clinical records include a GP Mental Health Plan written on 26 September 2016. It includes a Mental Health Examination reporting the positive finding of 'lower mood at times; a diagnosis of 'Grief Depression Anxiety'; and a Plan of Management with Goals 'to manage recent and long-term life changes', Action to see Lynette Bainbridge and Referral to the clinical psychologist. Clinical records also include a GP Mental Health Care Review performed on 8 June 2017. Continued treatment of patient A for 14 years after relationship ended 1. The conduct of the Respondent, whether the relationship was of five months duration or even a 3 ½ year duration, directly had an emotional impact upon patient A which can have long lasting effects and impact the quality of care for the total period of 14 years after the sexual relationship between the Respondent and the patient ended. 2. Continuing to treat patient A after the sexual relationship ended was totally inappropriate. Cervical examinations upon patient A 1. Patient A required regular Pap smears, even annually in view of the past history of cervical intraepithelial neoplasia III (CIN 111). The Tribunal does not consider that the handwritten notes of the Respondent are illegible, but sometimes are difficult to read. The respondent's written and oral evidence confirmed Patient A was under the care of a gynaecologist. The Health Summary has 'Cone Biopsy – Lowe' written under past problems indicating the gynaecologist's involvement according to the gynaecologist notes. 2. Several consultations with the Respondent stated a Pap smear was performed but no reports or results of the Pap smears are apparent. The patient was also under the care of a gynaecologist. There is no justification in the Respondent's records why a Pap smear and breast checks were performed every year from 2004 to 2006. 3. In view of the sexual relationship, to maintain professional boundaries gynaecological examination should have been under the care of another doctor. 4. Furthermore STD tests were ordered without clinical justification for such tests. The indication for the STD tests were not written in the medical records. Assessment prior to prescribing Alprazolam, Temazepam and Nortriptyline 1. The Respondent did not conduct an appropriate assessment of patient A before prescribing these drugs. Consultations on 17 August 2017; 31 October 2017; 2 November 2017 and 17 November 2017 when Alprazolam was prescribed. These records do not contain any history, physical examination, Mental State examination, mental health assessment and plan, assessment of risk associated with use of drugs of dependency. However, there is a notation of downward arrow and Alprazolam; the Tribunal infers that the Respondent was recommending reducing Alprazolam and then on 31st of October has 'cut Alprazolam' then increased (upward arrow) again. Were the drugs prescribed to patient A for an appropriate therapeutic purpose? 1. Alprazolam was prescribed by the Respondent in lower doses of 1 mg ¼ – ½ as needed in early 2005. 2. Just prior to the sexual relationship and over time doses escalated to 1 mg twice a day (b.d.) which could lead to drug dependency. Even if prescribed for anxiety, there is no evidence of managing the anxiety using non-drug approaches such as lifestyle, CBT and stress management in 2004 when it was first prescribed. 3. The prescriptions were continuously generated without relevant documented history, a Mental State examination, clinical justification and there is no evidence of prompt referral to psychologists or psychiatrists particularly prior to prescribing drugs of dependency to address the anxiety and depression using non-pharmacological strategies such as Cognitive Behaviour Therapy and stress management advice, and attempt for harm reduction. 4. Nortriptyline was prescribed for depression by the Respondent during the consultations when handwritten notes are used but outside the consultations from 2014 without any clinical record. It is evident from the PBS data, boxes of 100 tablets were dispensed every month and occasionally within three – four weeks duration. That is more frequently than required beyond supplied medication which means there was a surplus of tablets dispensed. Did the Respondent prescribe each of the above drugs to patient A in an inappropriate quantity? 1. Patient A was prescribed the following: 1. Alprazolam: 1 mg 1 b.d. 50, five repeats is equivalent to a total supply of 125 days that equates to approximately four months. The prescribing of Alprazolam is occurring approximately every 4 months with continued everyday use. 2. Nortriptyline: According to PBS data, Nortriptyline 100 tablets with five repeats was over prescribed and dispensed to the point of dangerous quantities with the potential to cause serious harm to patient A. It is not known what the rate of consumption was. 1. The table demonstrates Nortriptyline was dispensed approximately every month and on occasions more frequently within a 21 day period. There is no clinical record of warning of overdose and ensuring the correct amount was prescribed. Referrals to Psychiatrists 1. There is no indication or evidence that the Respondent referred patient A to any specialist for her mental health issues. There are only two GP mental health plans prepared by the Respondent which are identified in the files. Both are poorly written, lacking significant data and not addressing the drugs of addiction that are dated 8 June 2017 and 26 September 2016. Period of prescribing of drugs 1. The main drugs of concern prescribed by the Respondent are Alprazolam and Nortriptyline. Temazepam was prescribed on only two occasions and not in the long-term. 2. Alprazolam was inappropriately prescribed for a lengthy period of time over many years in 2004 up to the time of the sexual relationship and, more recently, up to 2019. Adequacy of Respondent's Clinical Records 1. There is a transition of handwritten consultation notes to a computer record on 15 June 2010. Computerised consultations commenced on 4 August 2010. 2. Telehealth consultations are recorded on 7 May 2020 and on 17 October 2020. There are no written notes in the medical record: there is no Medicare or PBS data available for this period. All computerised consultations show a significant lack of detail which is expected to include basic details of history, physical examination, diagnosis and management plan. 3. The medical records demonstrate significant lack of information in the Health Summary section on health problems each patient was suffering. Clinical problems, particularly in relation to chronic depression, anxiety, insomnia and drugs of dependency, had not been noted. There is no documentation of family history. 4. All consultation notes of the Respondent lack fundamental information that is required by Medicare and the Medical Board for each consultation. There are only notes of action items for scripts and referrals to specialists. 5. The medical records provided by the Respondent lack significant information. The Tribunal finds that there are consultation notes with clinical justification for the prescriptions generated – both addictive and non-addictive medication. There is incomplete health summary; no record of relevant history and presenting problem; no record of relevant physical examination; no formal Mental State examination; no formal diagnosis and differential diagnosis. The Respondent accepts that his notes are below standard. Respondent's Evidence 1. The Respondent has provided a statement dated 2 December 2021 and an additional statement dated 15 December 2021. The statement records that he graduated from the University of Sydney with a Bachelor of Medicine and Bachelor of Surgery in 1974 and was first registered as a medical practitioner in New South Wales on 8 December 1974. The Respondent is a Fellow of the Royal Australian College of General Practitioners. 2. The Respondent states that he first consulted with patient A at a previous practice in April 2001 and that he ceased treating her as a general practitioner in August 2019. On 17 May 2004 patient A held a consultation with the Respondent in which she informed him of her difficulty in sleeping, experiencing panic attacks and her worry that her mother and brother were both unwell. On the basis of her difficulties in sleeping and reports of repeated panic attacks, the Respondent prescribed Alprazolam and continued to do so. Further Patient A informed him that she had used Alprazolam previously to manage panic attacks and inability to sleep. The Respondent states that if a patient approached him for the first time complaining of panic attacks, he would refer them to a psychologist before prescribing any medication; he would also complete a K 10 assessment and would use the mental health assessment template provided on the Best Practice software to assist with his examination. 3. The Respondent refers to numerous consultation notes between 17 May 2001 and 10 August 2018 which record his discussions with the patient. The Respondent states that in consultations he would always assess patient A's mental health issues and provide her with advice. 4. The Respondent denies that he did not refer patient A for further specialist treatment from a psychiatrist, or psychologist or addiction specialist. On 11 September 2016 he referred patient A to a psychologist for treatment; he also completed a GP Mental Health Care Plan on 26 September 2016; he referred patient A again to the psychologist on 9 June 2017. 5. The Respondent states that throughout his treatment of patient A that she was reluctant to consult with psychiatrists and psychologists despite him encouraging her to do so. The Respondent acknowledges that given her ongoing mental health issues, it would have been prudent to refer her to a psychiatrist or psychologist much sooner than he did. 6. The Respondent stated he did not know or believe during the treatment of patient A that she had developed a drug dependency/addiction to benzodiazepines. He acknowledges that with hindsight he ought to have known that this may have occurred. 7. The Respondent notes that Alprazolam did not become a Schedule 8 medication until 1 February 2014 and was a Schedule 4 medication prior to this date. The Respondent states that he took even greater care in his prescribing of Alprazolam once it became a Schedule 8 medication and continued his efforts to wean patient A off such medication. 8. On 8 September 2014, patient A consulted the Respondent complaining of an aggravation of her panic attacks due to a family tragedy. As she had been prescribed Nortriptyline by her psychiatrist, the Respondent provided her with a prescription for three tablets daily to address the aggravation of her panic attacks. The Respondent states that he provided her with advice about the dosage and frequency of medication, directing her to take three tablets daily as she had done previously as directed by her previous practitioner. The Respondent accepts it was not appropriate to prescribe such medications with the dosage on the basis of the previous practitioner's prescription. He was mindful that the patient had been assisted by such medication. 9. The Respondent prescribed Temazepam in the short term and denies that there is no mental health assessment plan or warning. However, the Respondent accepted these are not properly recorded in his notes. He believed that the drug would assist patient A. Respondent's evidence in relation to his relationship with patient A 1. In his oral evidence the Respondent stated that patient A met him initially at the residential care premises where they both worked. She requested that she attend his practice. The Respondent recommended that she should consult a different practitioner in his practice. However, patient A chose to consult the Respondent. 2. The patient attended the practice from 2001 to the end of 2004. Sometime in December 2004, the Respondent decided, of his own volition, that his personal relationship with patient A should terminate and he informed patient A. At that stage the Respondent felt this was best as he felt uncomfortable with the patient's recurrent physical hugging of him at the end of each consultation and her continuing discussions of her private issues when she saw him at the residential care premises. 3. In January 2005, the Respondent received a telephone call at his surgery from patient A when she requested that he visit her at her home. The Respondent states that the invitation "came out of the blue". The Respondent took the invitation to be a social one, and says that, to be obliging, he accepted the invitation and the sexual relationship commenced from that day. 4. The Respondent accepted patient A's invitation because he had the time; and he felt it was polite to accept the invitation. The Respondent states he had no intention of engaging in any sexual activity at the time he visited the patient's home. Furthermore, the Respondent states that he thought it was "the wrong thing to do". 5. The Respondent engaged in an intimate relationship with patient A in the period between January 2005 and May 2005. Patient A would see the Respondent at a nursing home which was attended by both patient A and the Respondent. Patient A would inform the Respondent when she would be available at home and the respondent would visit her home when he was in the area. The Respondent estimates that he and patient A were intimate approximately 5 to 10 occasions, although that did not happen on every social visit. During the five months, he paid social visits to patient A's residence approximately once per week. He did not cease the relationship earlier because he states that he was "too soft". 6. At that time the Respondent was undergoing a stressful time in his domestic life. The Respondent says that he was drawn into the relationship with patient A but felt uncomfortable in doing so. 7. The Respondent states, in answer to the question whether he believed he breached the doctor-patient relationship: "Yes, I believe I breached that trust". 1. The Respondent did not consider that he exploited patient A. He accepted that the patient was vulnerable. He was aware that she was depressed and suffered from anxiety and had various mental health and family issues. He referred to her as being one who would embarrass him on a visit to the surgery by hugging him, particularly following the end of the consultation. For this reason, the Respondent ensured that the door to the consultation room was widely opened to try to confine such conduct. The Respondent stated that patient A was "the hardest person I ever had to deal with in getting her own way." 2. Thereafter the Respondent and patient A continued their relationship until 5 May 2005. A discussion occurred at some stage after which it was agreed that the relationship would cease. However it is unclear whether this occurred after the home visit on 5 May 2005 or sometime earlier. The Respondent's statement dated 2 December 2021 indicates that this discussion happened "following the home visit" on 5 May 2005 (at paragraph 54), however he states in oral evidence that this conversation took place on an earlier occasion. He said he reached this decision "in his own mind" and conveyed his decision to patient A. 3. The Respondent states that during the period of their relationship whilst patient A continued to attend the practice, he did not treat her or prescribe her with any medications during the period of their relationship. Patient A was treated by another practitioner in the practice. However, on 5 May 2005 the patient reported a cough, fever and being lethargic and as no other practitioners were available, patient A requested that the Respondent attend for a home visit to provide treatment. The Respondent denies that any intimate relations occurred on that day when he visited patient A at her home. 4. The Respondent acknowledges that it was inappropriate to engage in such conduct with the patient. The Respondent deeply regrets his actions. The Respondent stated that he thought he was being supportive of patient A but with hindsight he realises that the relationship should never have occurred. In answer to a question in cross examination which suggested that he continued to see patient A until 2019 so that she would not make a complaint about the relationship, the Respondent refuted such suggestion. 5. The Respondent states that he now sees that harm could have been suffered to the patient. The Respondent states he has acquired a full understanding of the boundary requirements and that he will not transgress again. He intends to examine appropriately, and to avoid unnecessary contact with the patient Respondent's evidence in relation to clinical notes 1. The Respondent acknowledges that his clinical notes in relation to patient A were inadequate. Prior to 2020 all of the notes were hand written but in 2010 the practice obtained electronic practice management software, Best Practice, and the Respondent commenced making a request for pathology and diagnostic imaging and ordering prescriptions via the software, but continued to make handwritten notes. 2. From 2020 the Respondent ceased to make handwritten notes. 3. The Respondent admits his unsatisfactory professional conduct in respect of Complaint One, Two and Three and accepts that his conduct in respect of Complaint Two is of such a serious nature to constitute professional misconduct. The Respondent stated he is very aware of his actions inside and outside of his workplace; that he values his reputation and that of the medical profession and that he is committed to good practice and patient safety. 4. The Respondent states that he has always tried to meet, and continues to meet all requirements for CPD. Since becoming aware of these proceedings he has reviewed "Good Medical Practice, a Code of Conduct for Doctors in Australia" which has assisted him in understanding the importance of maintaining professional boundaries. The Respondent has listed CPD activities in 2020 and 2021. 5. The Respondent stated as a result of the conditions imposed on his registration, he is only permitted to see 30 patients per day but has been booking only 27 patients per day. He has employed three general practitioners in his practice. The Respondent stated he has strong professional relationships with his patients; is passionate about engaging with them and caring for them in all dimensions of their health. The Respondent states that he enjoys his work especially with elderly patients in his local area. Standard of Proof 1. The Tribunal must be satisfied to a high degree before it can be satisfied that the complaints are established. Even though the rules of evidence do not apply in proceedings before this Tribunal, and it is a misnomer to have regard to the principles concerning the standard of proof, the Tribunal considers that the evidentiary test contained in Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 has been accepted in the Tribunal as being the appropriate test which should be applied. See also the observations of the Court of Appeal of New South Wales in Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41. 2. The Tribunal must apply such standard in determining whether the conduct of the Respondent constitutes unsatisfactory professional conduct within s 139B of the National Law namely whether it is 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: see s 139B(1)(a). The Tribunal's findings 1. The Applicant provided written submissions dated 28 January 2021 [sic – 2022] and the Respondent provided submissions dated 18 February 2022. Each party's submissions addressed the complaints (for Stage 1) and also the issue of disciplinary sanction (for Stage 2). A Directions Hearing was held on 8 March 2022 in subsequence of which the parties consented to the Tribunal determining both Stage 1 and Stage 2 on the papers. The Respondent informed the Tribunal that it wished to rely upon a recent "Performance Assessment Report" and the Tribunal ordered that such document be provided by 4:00pm on 8 March 2022. The Applicant indicated it may wish to provide further submission. Accordingly, the Tribunal directed that any further submissions be provided by 10:00am on 9 March 2022. 2. The Respondent has provided the "Performance Assessment Report", and the Applicant has provided further written submissions. Both the report and the further submissions have been taken into consideration. Complaint One Complaint One, Particular 1 1. Complaint One, particular 1 pleads as follows: "Between 16 May 2004 and 28 June 2019, the practitioner inappropriately prescribed Alprazolam, a Schedule 8 drug of addiction to Patient A, on the dates as set out in Schedule A to the Complaint, in circumstances where: (a) there was no record of a diagnosis; (b) the prescriptions were for an inappropriate quantity and frequency; (c) there was no Mental Health examination; (d) there was no Mental Health Assessment; (e) there was no Mental Health Plan; (f) there was no management plan including a risk assessment and treatment plan. (g) there was no referral of Patient A for further specialist treatment such as a psychologist or psychiatrist or addiction specialist; (h) the practitioner knew or ought to have known that Patient A had developed a drug dependency / addiction to benzodiazepines." 1. The respondent admits that it was inappropriate to prescribe Alprazolam to patient A and admits particulars 1(a), 1(b) and 1(h). However, the Respondent denies particulars 1(c), 1(d), 1(e), 1(f) and 1(g). 2. The Tribunal finds that there was a record of a diagnosis. The Respondent's clinical records include a GP Mental Health Plan written on 26 September 2016. It includes a Mental Health Examination reporting the positive finding of 'lower mood at times; a diagnosis of 'Grief Depression Anxiety'; and a Plan of Management with Goals 'to manage recent and long-term life changes', Action to see Lynette Bainbridge and referral to the clinical psychologist. Clinical records also include a GP Mental Health Care Review performed on 8 June 2017. 3. Whilst there is no recorded Mental Health Examination in the Respondent's handwritten notes, in oral evidence the Respondent stated he did perform a mental health examination at each consultation where he prescribed Alprazolam. This included observing her demeanour as soon as she came into the room, asking about the stressors in her life and how she was managing. The written notes would support the fact this assessment did occur with multiple entries over the years, for example on 17 May 2004 the written notes record "Not sleeping, teary eyed, poor concentration, Panic attacks… -palps when stressed. Lethargy, no energy…". The Respondent stated he would spend 40 minutes each consultation with Patient A. The expert witness, Dr Kotsirilos, agreed that such duration would be a timeframe consistent with completing a Mental Health Examination, Assessment and Plan. 4. With respect to a management plan, there is a notation of a downward arrow and Alprazolam – which is consistent with the Respondent's oral evidence that he was recommending reducing Alprazolam and then on 31 October 2017 has "cut Alprazolam" then increased it (upward arrow) again. 5. In her oral evidence the expert agreed that sometimes it may be appropriate that first line treatment for panic attacks included the prescribing of Alprazolam concurrently with CBT or other non - pharmacological treatments, that the fact that patient A was requiring long term treatment with Alprazolam could have been due to recurrent panic attacks requiring repeated and ongoing pharmacological treatment rather than this being evidence of drug dependence; and that notwithstanding the deficiency in the medical records, it is possible that the Respondent did perform an informal Mental State assessment and put in place a mental health plan. The expert agreed that the mental health plan recorded by the Respondent on 26 September 2016 was not optimal but "just adequate", especially as the formulaic template for mental health plan relates specifically to fulfilling the criteria for the purpose of billing for an item number under Medicare. 6. The Tribunal finds with respect to Complaint One, particulars 1(a), 1(b) and 1(h) are established and that such conduct falls below the standard reasonably expected of the Respondent, such as to amount to unsatisfactory professional conduct. However, the Tribunal finds that particulars 1(c), 1(d), 1(e), 1(f) and 1(g) are not established. Complaint One, Particular 3 1. Complaint One, particular 3 pleads the following: "Between 6 September 2014 and 26 July 2019, the practitioner inappropriately prescribed Nortriptyline, a tricyclic antidepressant, to Patient A on the dates set out in Schedule B to the Complaint in circumstances where: (a) the prescriptions were for an inappropriate quantity and frequency; (b) there was no advice in relation to the dosage and frequency of the medication; (c) there was no Mental Health examination; (d) there was no Mental Health Assessment; (e) there was no Mental Health Plan; (f) there was no referral of Patient A for further specialist treatment ." 1. The respondent admits particular 3(a), but denies particulars 3(b), 3(c), 3(d), 3(e) and 3(f). 2. The Respondent made a diagnosis of depression and on that basis there was a clinical indication for the prescribing of Nortriptyline and the prescriptions were appropriate and at an appropriate frequency being on a monthly basis. The expert in her oral evidence agreed that overall his prescribing of Nortriptyline for depression was appropriate. There were two to three prescriptions dispensed a week earlier on each occasion, but this in itself does not constitute inappropriate prescribing. The Respondent in his oral evidence stated that he had discussed the dosage and frequency of the medication with patient A and that he had performed a mental health assessment, and management plan. There was evidence of referral to the psychologist Lynette Bainbridge and a Dr Bhandari, a psychiatrist, with his input in 2007 and another psychiatrist's report in August 2010 in the medical records. These had contributed to the Respondent's management decisions including prescribing Nortriptyline for patient A. 3. The Tribunal finds that particular 3(a) is proven and falls below the standard reasonably expected of the Respondent and constitutes unsatisfactory professional conduct. However, the Tribunal finds that particulars 3(b) – 3(f) are not proven. Complaint One, Particular 4 1. Complaint One, particular 4 pleads the following: "Between 22 May 2016 and 23 June 2016 the practitioner inappropriately prescribed Temazepam, a Schedule 4D restricted substance, to Patient A on the dates set out in Schedule C to the Complaint in circumstances where, on each occasion there was no: (a) clinical indication; (b) Mental Health Examination; (c) Mental Health Assessment; (d) Mental Health Plan; (e) record of warning and side-effects discussed with Patient A." 1. The Respondent admits 4(a) and 4(e), but denies particulars 4(b), 4(c) and 4(d). 2. The Tribunal finds that particulars 4(b), 4(c) and 4(d) are not proven, in that there was a clinical indication for prescribing Temazepam for insomnia after having discussed non–pharmacological treatments, even though there is no record of such conversation. In the situation where two scripts of Temazepam were given on a short term basis, over a couple of months, there was no requirement to perform a Mental Health Examination, assessment and plan. 3. The Tribunal finds that there was no record of warning and side-effects discussed with patient A. 4. The Tribunal finds that the conduct referred to in particulars 4(a) and 4(e) fall below the standard reasonably expected of the Respondent and constitutes unsatisfactory professional conduct. The conduct referred to in particulars 4(b), 4(c) and 4(d) are not established. Complaint One, Particular 7 1. Complaint One, particular 7 pleads the following: "On at least one occasion between September 2005 and March 2013, the practitioner performed an inappropriate pap smear and cervical examination on Patient A in circumstances where: (a) the practitioner had been in a sexual relationship with Patient A from January 2005 to May 2005; (b) there was no chaperone present; [Particulars (c) and (d) are omitted] (e) Patient A was already under the care of a gynaecologist; (f) STD tests were ordered without clinical indication." 1. The Respondent denies particular 7 of Complaint One in that the pap smears and cervical examinations were not inappropriate. 2. The Respondent's written notes on 27 March 2003 include a brief summary of the gynaecologist's letter 'Smear NAD… Needs annual smear…' justifying why PAP smears were taken. 3. Further, the expert conceded that it is appropriate for a GP to perform a Pap smear even though a patient is under concurrent care by a gynaecologist. She also conceded that having a chaperone for intimate examination is not mandated by any guideline. 4. The Respondent gave evidence that STD tests were ordered at the request of patient A as she was in a new relationship which provides clinical justification for such tests. The indication for the STD tests were not written in the medical records however the Respondent stated he clearly remembered patient A's new relationship as it was with the son of a mutual acquaintance. 5. The Tribunal finds that the Pap smear and cervical examination were clinically indicated, that while the use of chaperone is not mandatory, the Respondent offered patient A a chaperone whom she declined, that there was a clinical indication for a Pap smear even though she was attending a gynaecologist, and that there was a clinical indication for STI testing. 6. However, the Tribunal finds that the fact that the Respondent performed a Pap smear for a woman with whom he had a sexual relationship falls significantly below the standard expected of the Respondent. Notwithstanding there was a clinical indication for a Pap smear, notwithstanding a chaperone was offered and declined, an intimate genital examination of the kind of a Pap smear and cervical examination of a vulnerable patient with whom the Respondent had a sexual relationship violate the professional boundaries which are the cornerstone of the doctor-patient relationship and is thus inappropriate and significantly below the standard reasonably expected of the Respondent. 7. The Tribunal finds that particular 7(a) is established in the circumstances, but not in respect of particulars 7(b), 7(e), and 7(f). 8. The Tribunal finds that the Respondent's conduct falls significantly below the standard expected of the Respondent and constitutes unsatisfactory professional conduct. Complaint Two – Sexual Relationship with patient 1. The Respondent admits this complaint. 2. The Medical Council of New South Wales policy which was current from 4 December 1991 to 8 November 2011 states inter alia: "1. It is an absolute rule that a medical practitioner who engages in sexual activity with a current patient is guilty of professional misconduct." 1. Subsequently, the publication of the New South Wales Medical Board entitled Code of Professional Conduct – Good Medical Practice ("the Code") was first published in July 2005. Standard 2.8 entitled Abuse of your professional position includes the following "2.8.1 You must not abuse your patient's trust. You must not, for example: a) use position to establish improper personal relationships with patients or their close relatives;…" 1. Another publication of the New South Wales Medical Board also published in July 2005 which appears to be a succinct summary of the Code states: "Successful relationships between doctors and patients, depend on trust. To establish and maintain that trust you should: …Observe professional boundaries with patients. This includes not engaging in personal relationships or sexual behaviour with patients. This principle is subject of a specific policy in relation to Sexual Misconduct issued by the NSW Medical Board." 1. The Medical Board of Australia published Guidelines on 12 December 2018 ("the Guidelines") entitled "Sexual Boundaries in the Doctor-Patient Relationship". 2. Whilst neither the Code nor the publication referred to above were current whilst the Respondent and patient A were in an intimate relationship between January 2005 and May 2005, the principles have essentially remained unchanged. The rationale for such principles is set out in the Guidelines relevantly as follows: "Sexual misconduct is an abuse of the doctor-patient relationship. It undermines the trust and confidence of patients in their doctors and of the community in the medical profession. It can cause significant and lasting harm to patients." 1. The breaches of the sexual boundaries are recognised to be on a broad spectrum and include, as stated in paragraph 3.1 under the heading Spectrum of behaviours: "Breaches of sexual boundaries include: - engaging or seeking to engage in a sexual relationship with a patient regardless of whether the doctor believes the patient consented to the sexual relationship - conducting a physical examination which is not clinically indicated or when the patient has not consented to it. An unwarranted physical examination may constitute sexual assault or abuse…" 1. The conduct of the Respondent in forming the relationship, albeit of only four months duration, has had ramifications for the patient. The psychologist's reports indicate that patient A was a very vulnerable person. There have been many stressors recorded in the notes of the psychologist in the [name redacted] Medical Service records, which have impacted upon patient A. These include traumatic childhood experiences with government services, family losses, retrenchment from her occupation, difficulties in establishing relationships with the opposite sex; abuse from her husband and other men with whom she had a relationship; and various medical issues. Recorded in the notes is the fact that patient A was angry with the Respondent for what she perceived to be a lack of follow-up of her physical concerns and the Respondent's "abruptness to her when the WorkCover case manager was not in the room". The psychologist recorded that there appeared to be anger towards the Respondent. The psychologist reported the relationship between patient A and the Respondent to the relevant authorities, at or following an appointment with patient A on 16 August 2019. 2. Despite the notes of the psychologist discussed above, one further entry made by him on 26 July 2019 reports that patient A recorded that the Respondent was "very supportive to her in this and now she wonders if she should change GP after all"; and previous to this on 29 March 2018 the psychologist noted 'Good support from GP who has known her for 18 years'. However a later note states: "Now that she has ceased seeing Dr Martin she is free from inappropriate male relationships for the first time in her life". 1. The Tribunal does not draw any inference that the relationship between the Respondent and patient A caused the patient's emotional state. There are other factors in evidence which clearly have had an impact on this, but the relationship with patient A was an additional factor which had potential to exacerbate and/or contribute to her fragile state. There are no reports prior to the relationship which would indicate whether it was in fact the relationship which has led to deterioration in her mental state. 2. The Respondent admits to Complaint Two and the Tribunal finds that Complaint Two is proven. The conduct of the Respondent has clearly breached the professional boundaries, and constitutes professional misconduct. Complaint Three 1. The Respondent admits all the particulars in Complaint Three. Even though the medical records were adequate in some areas, overall they were inadequate in that they lacked the necessary information listed by the expert witness, which would enable another practitioner to continue the care of the patient. 2. The Tribunal finds that Complaint Three is proven and that the Respondent's conduct amounts to unsatisfactory professional conduct. Complaint Four 1. The Respondent admits that he has engaged in unsatisfactory professional conduct in respect of Complaint Three and in part in relation to Complaint One, but denies that it is unsatisfactory conduct of a sufficiently serious nature in isolation or cumulatively to amount to professional misconduct and to justify the suspension or cancellation of his registration. 2. The Respondent also admits that he has engaged in unsatisfactory professional conduct in respect of Complaint Two and that it is unsatisfactory conduct of a sufficiently serious nature to amount to professional misconduct. 3. The Tribunal must consider whether professional misconduct, as alleged in Complaint Four has been established. Professional misconduct is defined in s 139E of the National Law as including: (a) unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; or (b) more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration. 1. The Tribunal is satisfied that the allegations contained in Complaints One, particular 7(a), Complaint Two and Complaint Three relating to unsatisfactory professional conduct are established. 2. The Tribunal has concluded that Complaint Four is established to the requisite evidentiary standard. With respect to Complaint One, particular 7, the Respondent has provided some explanation for his conduct in performing the Pap smear, but this does not mitigate the inappropriateness of undertaking an intimate examination in circumstances where he had a former sexual relationship with a vulnerable patient (which is the subject of Complaint Two). This in itself amounts to professional misconduct when considered cumulatively with the finding hereunder in relation to Complaint Two. 3. The Tribunal concluded that with respect to Complaint Two, the conduct of the Respondent engaging in a sexual relationship with a patient breached professional boundaries, as outlined in the guidelines of the Medical Council of NSW, which were current at the time of the relationship. That conduct fell significantly below the standard expected. The Tribunal considers that the Respondent's conduct in Complaint Two on its own constitutes professional misconduct. 4. As stated earlier in this decision, the Tribunal finds that the following conduct of the Respondent, individually, amounted to unsatisfactory professional conduct: 1. Complaint One, particulars 1(a), 1(b), 1(h), 3(a), 4(a), 4(e) and 7 (a); and 2. Complaint Three. 1. The Tribunal has also found that the Respondent's conduct in relation to Complaint Two amounted to professional misconduct. Further, the conduct of the Respondent in relation to Complaint One, particular 7(a), when considered cumulatively with Complaint Two constitutes professional misconduct. 2. Complaint Four is therefore established by reason of the findings in paragraph 111 above. Protective orders 1. Section 3A of the National Law provides that the "protection of the health and safety of the public must be the paramount consideration". The Tribunal is required to apply such standard to determine whether a medical practitioner is fit to practise medicine. In Health Care Complaints Commission v Brush [2015] NSWCATOD 120 the following observations are made at [72]-[73]: "72. … In this case the context is the statutory scheme established for the registration and accreditation of health practitioners, a scheme designed to protect members of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered (ss 3 (1) and 3 (2) (a) of the National Law). 73. While some overlap between the concepts of "good character" and "being a suitable person to hold registration" / "fit and proper person" they are not identical. The former encompasses matters such as integrity, probity and scrupulosity; the latter embraces those concepts but also includes matters such as competence and technical skills." 1. The standard is to be observed are set out by the New South Wales Court of Appeal in Health Care Complaints Commission v Do [2014] NSWCA 307. At [35] Meagher JA with whom Basten and Emmett JJA agreed said: "The objective of protecting the health and safety of the public is not confined to protecting the patients or potential patients of a particular practitioner from the continuing risk of his or her malpractice or incompetence. It includes protecting the public from the similar misconduct or incompetence of other practitioners and upholding public confidence in the standards of the profession. That objective is achieved by setting and maintaining those standards and, where appropriate, by cancelling the registration of practitioners who are not competent or otherwise not fit to practise, including those who have been guilty of serious misconduct. Denouncing such misconduct operates both as a deterrent to the individual concerned, as well as to the general body of practitioners. It also maintains public confidence by signalling that those whose conduct does not meet the required standards will not be permitted to practise" 1. For further examples, see Health Care Complaints Commission v Dr Della Bruna [2014] NSWCATOD 31 at [88] in which Wright J summarised the protective principles as follows: "(1) In the exercise of its functions under Subdivision 6 of Division 3 of Part 8 of the National Law, the protection of the health and safety of the public must be the Tribunal's paramount consideration - s 3A of the National Law. (2) Disciplinary proceedings against members of a profession are intended to maintain proper ethical and professional standards, primarily for the protection of the public but also for the protection of the profession - Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 637, (3) The public interests served by protective orders include, indirectly, the standing of the medical profession and the maintenance of public confidence in the high standards of medical practitioners - Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [91]. (4) Protective orders also involve an element of deterrence or, to put it more positively, encouragement to other practitioners to recognise the importance of complying with professional standards and the risks of failing to do so - Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [91]. (5) Although the specific purpose for which the Tribunal makes orders is protective of the public interest and not punitive with respect to the practitioner, that is not to deny that such orders may be punitive in effect and that punitive effect may be relevant in formulating a protective order - Lee v Health Care Complaints Commission [2012] NSWCA 80 at [20] citing Director General, Department of Ageing, Disability and Home Care v Lambert (2009) 74 NSWLR 523 at [83]." 1. That is, the fitness of the respondent practice is the focal issue. In Health Care Complaints Commission v Echano [2018] NSWCATOD 30 at [57] reference is made to the fact that: "The purpose of disciplinary orders is protective: see generally, Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630, 637. Orders operate as an indication to the profession generally of the sanctions that will be visited on professional misconduct of the kind identified in a particular case. They play a role in educating doctors and the public generally as to the minimum, expected standards of practice. They serve to protect the public in removing from the profession doctors whose conduct has been dangerous, and placed at risk the safety and welfare of patients. The protection of the health and safety of the public is a paramount consideration: s 3A, National Law. Appropriate disciplinary orders remind other members of the profession of the public interest in the maintenance of high professional standards, emphasise the unacceptability of the particular conduct and serve to maintain confidence in the high standards of the relevant profession: NSW Bar Association v Meakes [2006] NSWCA 340 at [114] per Basten JA. See also Health Care Complaints Commission v Do [2014] NSWCA 307 at [35] per Meagher JA (with whom Basten and Emmett JJA agreed)." 1. In Prakash v Healthcare Complaints Commission [2006] NSWCA 153 at [91], Basten JA observed that "the public interests include, indirectly, the standing of the medical profession and the maintenance of public confidence in the high standard of medical practitioners". 2. For further authorities to similar effect, see Health Care Complaints Commission v Khan (No 2) [2019] NSWCATOD 37 at [46]; Roberts v Medical Council of New South Wales [2015] NSWCATOD 35 at [56], referring to Bahramy v Medical Council of NSW [2014] NSWCATOD 116; Qasim v Health Care Complaints Commission [2015] NSWCA 282. 3. The conduct of practitioners prescribing drugs inappropriately has been considered in Spicer v New South Wales Medical Board & Ors (unreported, NSW Court of Appeal, CA 3 of 1981, 19 February 1981), Hope JA (Reynolds and Hutley JJA agreeing) said: "In my opinion it is clear beyond argument that the proper handling and prescribing of drugs by medical practitioners are the greatest importance to the community. If a medical practitioner handles or carries out that very great responsibility in a way that is reckless and which shows a disregard to the law it cannot be said that he is fitted at such time to be a medical practitioner. In my opinion the view expressed by the Tribunal has implicit in it that not merely was he presently unfitted to treat those addicted or habituated to drugs but that unfitness in itself demonstrated his present unfitness to be a medical practitioner". 1. In Health Care Complaints Commission v Chen [2016] NSWCATOD 144, the Tribunal observed at [137] that medical practitioners: "are in a unique position in enabling members of the public to have access to drugs of addiction and the community is entitled to rely on the integrity and professional expertise of medical practitioners to avoid creating drug addicts and to avoid feeding the habits of drug addicts". 1. There is evidence from the psychologist that the intimate relationship between the Respondent and patient A has resulted in the patient suffering psychological detriment. Further, the continued doctor-patient relationship between 2005 when their intimate affair concluded until 2019 has also impacted upon patient A. Patient A did not provide evidence. Whilst there is no evidence to establish that patient A has suffered harm requiring continuing treatment, the Tribunal takes into account the anger and distress suffered by patient A arising out of the relationship, and of the fact that she found it necessary to seek psychological counselling. 2. The standards of the Medical Council existent in 2005 explicitly state that a sexual relationship with a patient constitutes professional misconduct. The Respondent recognises his failure to maintain the doctor-patient boundaries constituted professional misconduct. Complaint Two does not refer to the Regulations or standards, but the Respondent nevertheless recognises his impropriety. 3. The Tribunal is concerned that the regulatory standards are silent on the issue of the doctor-patient relationships resuming or continuing following the cessation of an intimate relationship. In the present proceedings, the professional relationship continued after the intimate relationship concluded in 2005 and remained until 2019. 4. No complaint is made with respect to this discrete issue. However, the Tribunal considers that such continuation may have impacted upon the doctor-patient relationship in this period. 5. The Respondent expressed profound remorse in respect of his conduct. The Tribunal accepts that such remorse is genuine. The intimate affair was wholly out of character, and was of four months duration. The Tribunal also accepts that the Respondent did not initiate the sexual conduct. He complied with the wishes of patient A. The Tribunal accepts that the Respondent's objective was to please the patient. This desire and his inability to resist the patient's approaches have led to the intimate affair. The Tribunal does not find any evidence that the Respondent has engaged in predatory conduct towards patient A. 6. The Respondent states that he recently formed a new practice. Whereas he was consulting with 30 to 40 patients per day, the number is, by agreement with the Medical Council, restricted to 30 per day but the Respondent has reduced this number to 27 consultations per day. 7. The Applicant seeks a cancellation of the Respondent's registration and an order that no application for re-registration be made within one year. 8. The Respondent states that his special interest is medicine to the care of aged persons. Currently he attends approximately seven residential care facilities where he cares for about 200 elderly patients. The Respondent is always available to consult to such persons in after hours or emergency requirements. The Respondent sets aside one weekday for visits to the aged care facilities and also visits at weekends. 9. The issues the subject of these proceedings relate to one patient, and the conduct of inappropriately prescribing and record keeping, is confined to patient A only. However, the conduct of the Respondent in engaging in an association with this patient clearly falls outside the appropriate standards. 10. The Tribunal observes that the Respondent was first registered on 8 December 1974 pursuant to the Provisions of the now repealed Medical Practitioners Act 1938. The Respondent has had continuous registration under the provisions of the National Law from 1 July 2010 to the present time. On 24 June 2020, the Medical Council of New South Wales imposed a condition under s 150(1)(b) of the National Law that the Respondent undergo a performance assessment and conditions were also imposed including a condition that the Respondent see no more than 30 patients in any one day. This recommendation is repeated in its recent "Performance Assessment Report" dated 4 November 2021 referred to hereunder. 11. The Applicant seeks orders that the Respondent's registration as a medical practitioner be cancelled pursuant to s 149C(1)(b) of the National Law and that a non-review period of 12 months be imposed pursuant to s 149C(7). The Applicant also seeks an order for payment of its costs. 12. But for the matters the subject of these proceedings, the Respondent has had an unblemished record since he first commenced practising medicine. The Tribunal has considered the conduct of the Respondent and the impact that these proceedings will have on him. The Tribunal is also mindful of the observations of the New South Wales Court of Appeal decision in Council of the New South Wales Bar Association v EFA (a pseudonym) [2021] NSWCA 339 where the Court of Appeal, having considered improper conduct by a barrister, referred to considerations relating to disciplinary sanctions as follows: "195. The question for this Court is what measure is called for to mark the Court's intolerance of conduct of the kind in question and to convey its intolerance to others who might be tempted similarly to engage in conduct that is demeaning to women and perpetuates unacceptable attitudes. We consider that, notwithstanding (as we have already mentioned) that the objective of disciplinary orders is protective and not punitive, some guidance may be taken from two well established principles of sentencing law: (i) proportionality and (ii) weight that may be given to extra-curial punishment. It is appropriate to note the level of extra-curial punishment (in some respects going far beyond any action the Court could take) that has already been visited on the respondent. This includes: - notwithstanding the non-publication orders, a level of public notoriety and humiliation; - a four year period of anxiety, while the Council's investigations proceeded; - a further period of anxiety since the filing of the Council's appeal; - severe impact on the respondent's mental health, detailed in the reports of Dr Bowers and Dr Nielssen; - the termination of the respondent's marriage and disruption to his family; - a very significant quantifiable cost resulting from the variation in the terms of the respondent's policy of professional indemnity insurance for 2022, with an unquantifiable potential penalty in forthcoming years (already, the annual cost has dwarfed the maximum fine this Court could impose); and - an unquantifiable but real and significant impact on the respondent's practice. 196. Bad as the respondent's conduct was, and deserving of condemnation, so far as the evidence goes, it represents an isolated instance of departure from accepted norms of conduct. It is an instance of the "human frailty" that Kitto J recognised in Ziems and was again recognised by the High Court in A Solicitor. It needs to be seen in proportion to what the conduct has already cost the respondent in personal and emotional, as well as financial, terms." 1. The Tribunal will follow the observations above by taking into consideration extra-curial consequences of the Respondent's conduct, particularly in respect of the financial burden of meeting a costs order. Further, the Tribunal considers that the conduct of the Respondent resulted from an instance of the "human frailty" (see Council of the New South Wales Bar Association v EFA (a pseudonym), citing Ziems v Prothonotary of the Supreme Court of NSW [1957] HCA 46 at [4]). 2. As already referred to, the Respondent has not engaged in predatory conduct. The Tribunal is satisfied that there is no chance of similar conduct in the future. The Tribunal also takes into the account the extra-curial consequences of the publication of this decision upon the Respondent. The Tribunal finds that the Respondent is fulfilling a most valuable service to the community and considers that a cancellation of his registration would result in significant community detriment. There has never been, until these proceedings, any complaint raised in relation to the Respondent's practice since 1974, and the events relating to these proceedings took place 17 years ago. He has an otherwise unblemished professional medical career. 3. A report entitled "Performance Assessment Report" conducted by the Medical Council of New South Wales dated 4 November 2021 concludes that: "The assessors believe that the professional performance of Dr Paul Martin is satisfactory, and he works at the standard reasonably expected of a practitioner of an equivalent level of training or experience. Dr Martin has had to work hard this year to re-establish his practice. He has succeeded in attracting 3 doctors to work with him and they are currently preparing for accreditation. He appears to have managed this enormous workload without becoming burnt out, saying that he continues to get real joy from working and intends to continue doing so. Dr Martin is a competent clinician who regularly examines his patients and ensures preventive health care is done. His patient management appears to be safe but he does need to document his management plan and safety netting more clearly. The 2 complaints received this year are as a result of poor communication rather than poor clinical judgement. Dr Martin is still working under a condition to restrict patient numbers to 30 a day and we recommend that this condition remains in place. It seems that the concerns at the previous assessment have largely been mitigated by the reduction in numbers of patients, self-directed improvements in the records and Dr Martin having ownership over his practice. Dr Martin's conditions (3) stipulate a medical record audit and this may be unnecessary in light of the findings of satisfactory records at this assessment." 1. However, the fact remains that there was serious violation of professional boundaries. As such, the Tribunal considers that whilst cancellation of registration is not warranted, the Respondent's registration should be suspended for a period of 6 months. This will ensure a clear message is delivered to the profession and the community that such boundary crossing is unacceptable, and that no matter how many years have elapsed, the practitioner who engages in such conduct will remain accountable for his or her conduct. Costs 1. The principles establish that a successful party is entitled to receive an award of costs. Such an order is not intended to be punitive but solely compensatory: see Latoudis v Casey [1990] HCA 59, per Mason CJ at [13] and McHugh J at [3]. The principles concerning costs have been considered by the New South Wales Court of Appeal in Health Care Complaints Commission v Philipiah [2013] NSWCA 342 at [42] – [46]. 2. As the Applicant has been successful in its application there is no basis to depart from the provisions of clause 13 of Schedule 5D of the National Law and as such the Respondent will be ordered to pay the costs of the proceedings. Orders 1. Pursuant to s 149C(1) of the National Law, the registration of the Respondent as a health practitioner be suspended for a period of 6 months from the date of these orders. 2. The Respondent pay the costs of these proceedings as provided by clause 13 of the Schedule 5D of the National Law. 3. Pursuant to s 64 of the Civil and Administrative Tribunal Act 2013, an order is made prohibiting the disclosure to any person or entity of the name of patient A. ********** 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: 15 March 2022