Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Alexakis [2023] NSWCATOD 99 Hearing dates: 11 – 14 July 2022; 18 – 22 July 2022; 5 – 6 September 2022; 2 December 2022 Date of orders: 10 July 2023 Decision date: 10 July 2023 Jurisdiction: Occupational Division Before: I Coleman SC ADCJ, Principal Member Dr H Haikal-Mukhtar, Senior Member Dr D King, Senior Member R Wellington, General Member Decision: (1) The Practitioner is guilty of unsatisfactory professional conduct. (2) The Practitioner is guilty of professional misconduct. (3) The proceedings are to be listed for hearing to determine the orders which are necessary to protect the health and safety of the public. Catchwords: OCCUPATIONS – medical practitioners – misconduct and discipline – professional misconduct – unsatisfactory professional conduct – whether two or more instances of unsatisfactory professional conduct justifies finding of professional misconduct – where practitioner overprescribed opioids – where practitioner failed to maintain adequate medical records – whether practitioner failed to observe proper professional boundaries – where practitioner frequently contacted patient's treating medical practitioners in hospital to advocate for patient – where practitioner introduced private solicitor to patient to prepare patient's will – where practitioner conducted almost daily home visits to patient after discharge from hospital – where practitioner financially benefitted by being named as beneficiary in patient's will Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), s 64 Health Care Complaints Act 1993 (NSW), ss 39(2), 90B(3) Health Practitioner Regulation National Law (NSW), ss 139B, 139E, 145A Health Practitioner Regulation (NSW) Regulation 2016, reg 6(1), Sch 4 cll 1(4)(f), 3(2) Cases Cited: Banks v Goodfellow (1869-70) LR 5; [1870] QB 549 Bradshaw v McEwans Pty Limited (1951) 217 ALR 1 Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 Carr v Homersham (2018) 97 NSWLR 328; [2018] NSWCA 65 Chen v Health Care Complaints Commission (2017) 95 NSWLR 334; [2017] NSWCA 186 Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21 Deputy Commissioner of Taxation (Cth) v Lincoln Industrial Cleaners Pty Ltd [1975] 2 NSWLR 499; (1975) 7 ALR 118 Dwyer v Calco Timbers Pty Ltd (2008) 234 CLR 124; [2008] HCA 13 Hampshire v Health Care Complaints Commission [2021] NSWCA 283 Health Care Complaints Commission v Cleary [2021] NSWCATOD 213 Health Care Complaints Commission v Grygiel (Termination Application) [2020] NSWCATOD 53 Health Care Complaints Commission v Javaheri [2022] NSWCATOD 162 Health Care Complaints Commission v Khalighimonfared [2022] NSWCATOD 78 Health Care Complaints Commission v Little [2016] NSWCATOD 146 Health Care Complaints Commission v Robinson [2022] NSWCA 164 Health Care Complaints Commission v Ross [2019] NSWCATOD 153 Health Care Complaints Commission v Wilcox [2020] NSWCATOD 10 HG v The Queen (1999) 197 CLR 414; [1999] HCA 2 Hinch v Macquarie Broadcasting Holdings Limited v Attorney General (Vic) (1987) 164 CLR 15; [1987] HCA 56 King v Health Care Complaints Commission [2011] NSWCA 353 Luxton v Vines (1952) 85 CLR 352; [1952] HCA 19 Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305 Marshall v Prescott [2015] NSWCA 110 New South Wales Land and Housing Corporation v Orr (2019) 100 NSWLR 578; [2019] NSWCA 231 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Secretary of the Treasury (2014) 242 IR 318; [2014] NSWCA 112 R v Byrnes & Hopwood (1995) 183 CLR 501; [1995] HCA 1 Singer v Berghouse (1994) 181 CLR 201; [1994] HCA 40 Tillmans Butcheries Pty Ltd v Australasian Meat Industry Employees' Union (1979) 42 FLR 331; [1979] FCA 132 Texts Cited: Medical Board of Australia, Good Medical Practice: a code of conduct for doctors in Australia, March 2014 Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Peter Alexakis (Respondent) Representation: Counsel: P Lowson (Applicant) L Ellison SC (Respondent) L Fernandez (Respondent, junior counsel) Solicitors: Health Care Complaints Commission (Applicant) Teece Hodgson & Ward Solicitors (Respondent) File Number(s): 2020/00148494 Publication restriction: Pursuant to section 64 of the Civil and Administrative Tribunal Act 2013 (NSW), disclosure to any person or entity of the names of the patients, the medical practitioners and solicitor set out in the Schedule to the Complaint is prohibited. REASONS FOR DECISION Introduction 1. By Further Amended Complaint (Complaint) filed on 6 July 2022, the Health Care Complaints Commission (the Commission) sought orders against Dr Peter Alexakis (the Practitioner) pursuant to the provisions of s 39(2) and s 90B(3) of the Health Care Complaints Act 1993 (NSW) and s 145A of the Health Practitioner Regulation National Law (NSW) (the National Law). 2. There was no challenge to the decision of the Commission to institute the present proceedings against the Practitioner in accordance with the requirements of the Health Care Complaints Act or any asserted failure to comply with s 145A of the National Law. 3. The Commission's application comprised five particular Complaints. Complaints 1 and 2 alleged inappropriate prescribing of Schedule 4 and Schedule 8 drugs to Patient A, and inadequate recordkeeping in relation to the prescribing of drugs to Patient A. The Practitioner admitted those Complaints, and further admitted that his conduct constituted unsatisfactory professional conduct. 4. Complaints 3 and 4 alleged boundary and other transgressions in relation to the treatment of Patient B. The Commission alleged by those Complaints that the practitioner's conduct "ultimately resulted in [the Practitioner] being bequeathed virtually all of Patient B's estate", and inadequate record keeping in relation to the treatment of Patient B. The Practitioner made no admissions with respect to those Complaints. 5. Complaint 5 alleged that the findings of unsatisfactory professional conduct which it submitted the Tribunal would make pursuant to Complaints 1 to 4, individually or in conjunction, established professional misconduct. The Practitioner disputed those allegations. 6. It was common ground that the hearing before the Tribunal was directed to determining whether the Commission made out its Complaints. The Tribunal's task has been: 1. To determine whether, on the evidence, the facts alleged by the Commission in support of Complaints 3 and 4 are proven; 2. Whether, to the extent that Complaints 3 and 4 are found to have been proven, the conduct of the Practitioner amounts to unsatisfactory professional conduct; 3. Whether the unsatisfactory professional conduct of the Practitioner which is either admitted or found proven is sufficiently serious to constitute professional misconduct. 1. The first step in the proceedings (Stage 1) is to determine whether the Commission has established the facts alleged in support of its complaints to the comfortable satisfaction of the Tribunal on the balance of probabilities (Health Care Complaints Commission v Grygiel (Termination Application) [2020] NSWCATOD 53); whether such facts as are found to have been proved establish unsatisfactory professional conduct pursuant to s 139B of the National Law; and, if so, whether such conduct is sufficiently serious to establish professional misconduct pursuant to s 139E of the National Law (King v Health Care Complaints Commission [2011] NSWCA 353; Health Care Complaints Commission v Robinson [2022] NSWCA 164). Material before the Tribunal 1. The Tribunal received a Statement of Agreed Facts prepared by Counsel for the parties (Exhibit X). 2. The Commission filed four volumes of evidence which became Exhibit HCCC1. The Commission subsequently filed a bundle of supplementary documents which became Exhibit HCCC2. The Commission filed a letter to the Practitioner setting out portions of the Code of Conduct relied upon by it (Exhibit HCCC3), an Affidavit of M Wallis dated 20 July 2022 (Exhibit HCCC4), and inserted at Tab 11 of Exhibit HCCC1 the further Affidavit of M Wallis dated 21 July 2022. The Commission tendered an Affidavit sworn by Person C (Exhibit HCCC1, Tab 10B). 3. The Commission tendered a further Affidavit of M Wallis of 22 July 2022 (Exhibit HCCC5), an Affidavit of the Practitioner as Executor of the Will of Patient A of 29 November 2019 (Exhibit HCCC1, Tab 22), an Affidavit of the Practitioner of 25 June 2020 (Exhibit HCCC1, Tab 23) and an email from Person C to the Practitioner of 2 June 2017 (Exhibit HCCC1, Tab 24). 4. The Practitioner relied upon his Amended Reply, which became Exhibit R1-1, a statement made by him (Exhibit R1-2), a handwritten letter from Patient B to the Practitioner (Exhibit R1-3), a transcript of handwritten notes of house visits made to Patient B by the Practitioner (Exhibit R1-4), the RACGP Silver Book (Exhibit R1-5), Bull Son & Schmidt Correspondence (Exhibit R1-6), supplementary statement of the Practitioner (Exhibit R1-7), statement of Brendan Myhill (Exhibit R1-8), statement of Person N (Exhibit R1-9), two letters to Dr Mittal (palliative care) from the Practitioner (Exhibit R1-10), and an email chain of documents filed in the Supreme Court (Exhibit R1-11). Marked for identification, but not ultimately tendered were an article authored by Dr Hamlin (MFI 12), a document by Train IT Medical (MFI 13), audit reports (MFI 14), and mentor reports (MFI 15). 5. The proceedings were heard on 11-14 and 18-22 July 2022, and on 5-6 September 2022. 6. The Commission filed an outline of its submissions on 17 October 2022, and supplementary submissions on 21 November 2022. 7. The Practitioner filed written submissions on 23 November 2022. The Practitioner filed supplementary closing submissions on 25 November 2022. 8. The Commission filed an outline of submissions in reply on 1 December 2022. 9. The Tribunal heard oral submissions on 2 December 2022. Background to the proceedings 1. The Statement of Agreed Facts (Exhibit X) provides a comprehensive background to the proceedings and records: "1 [Patient B] was born on 9 August 1933 and died on 21 November 2017. 2 [Patient B] first consulted with Dr Alexakis on 15 August 2014 (Tab 32 p 259). 3 [Patient B] was admitted to Royal Prince Alfred Hospital (RPA) on 6 May 2017 and discharged on 26 May 2017. 4 [Patient B] was readmitted to RPA on 26 May 2017 and discharged on 26 June 2017 ("the second admission"). 5 During the second admission Dr Alexakis visited [Patient B] at RPA at least on 28, 31 May, 1, 2, 6, 9, 10, 11, 12, 13, 14, 15, 18, 21, 22 and 24 June 2017 (Tab 33 pp 8, 9, 167, 181, 197, 206, 217, 218, 221, 224, 226, 237, 238/9-279). 6 Dr Agnes Chan undertook an assessment of [Patient B] on 1 June 2017 and was unable to determine if he had testamentary capacity. 7 Dr Charlie Betts undertook an assessment of [Patient B] on 1 June 2017 and was unable to determine if he had testamentary capacity. 8 Dr Nora Breen undertook a neuropsychological assessment on [Patient B] on 2 June 2017 and determined that he had testamentary capacity. 9 Dr Alexakis attended at RPA on 6 June 2017 with [Person C], solicitor, and introduced [Person C] to [Patient B]. 10 [Person C] had done work for the Alexakis family, and had prepared a Will for Dr Alexakis' father. 11 [Person C] prepared and witnessed [Patient B's] Will dated 8 June 2017. 12 On 13 June 2017 between 11.09 a.m. and 1.23 p.m. [Dr E], Dr Brian Fernandes and Dr Melanie Wroth conducted a consultation with [Patient B] (Tab 33 pp 177-179). 13 On 13 June 2017 between 1.23 p.m. and 3.57 p.m. [Patient B] attempted to leave the hospital, generating a "Code Black" (Tab 33 p 179). 14 From 26 June until 30 October 2017 [Patient B] remained at his home at … Strathfield. 15 On 28 June 2017 Dr Wroth notified a complaint to the Health Care Complaints Commission about Dr Alexakis. 16 On 10 July 2017 [Person C] prepared and witnessed [Patient B's] Will dated 10 July 2017. 17 From around 9 July until 5 October 2017 Dr Alexakis visited [Patient B] at his home daily - almost daily. 18 On 12 September 2017 police officers attended at [Patient B's] home and spoke to him about his Wills. 19 On 23 September 2017 police officers spoke to Dr Alexakis about his relationship with [Patient B]. 20 On 5 October 2017 Dr Alexakis visited [Patient B] for the last time. 21 On 8, 18 and 27 October 2017 Dr Alexakis telephoned [Patient B]. 22 On 30 October 2017 [Patient B] was admitted to the Concord Palliative Care facility. 23 On 21 November 2017 [Patient B] died." Complaint 1 1. Complaint 1 alleged that the Practitioner was guilty of unsatisfactory professional conduct pursuant to s 139B(1)(a) and/or s 139B(1)(l) of the National Law in that the Practitioner: "i. 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; ii. engaged in improper or unethical conduct relating to the practice or purported practice of medicine." 1. The statutory definition of unsatisfactory professional conduct provided by s 139B(1)(a) requires no clarification. In the context in which they find expression, the words of the provision are afforded their ordinary meaning: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28. 2. The terms "improper" and "unethical" conduct in s 139B(1)(l) of the National Law are not defined in the statute but have been given their ordinary meaning by the Tribunal in numerous decisions in proceedings pursuant to the National Law. 3. The Macquarie Dictionary definition of "improper" as "not in accordance with propriety of behaviour, manners etc., or abnormal or irregular" was adopted in Health Care Complaints Commission v Ross [2019] NSWCATOD 153 ("Ross") at [59]. In R v Byrnes & Hopwood (1995) 183 CLR 501; [1995] HCA 1, the High Court said (at [24]) that "improper" was an "indefinite term", and (at [25]) that, although "not a term of art", the issue of impropriety needed to be determined by reference to the "particular duties and responsibilities of the particular officer whose conduct is impugned", which is not "subjectively" determined, but determined by reference to a "range of considerations that may be taken into account". 4. The dictionary definition of "unethical" as "contrary to moral precept, immoral, in contravention of some code of professional conduct" was adopted in Ross at [59] and in Health Care Complaints Commission v Little [2016] NSWCATOD 146. 5. The background to Complaint 1 recorded that the Practitioner consulted with Patient A at his practice at Strathfield between approximately 4 November 2008 and late 2017 (consultation period), and that Patient A was a refugee from Afghanistan who suffered ongoing pain due to injuries from his time serving in the Afghan Army. The particulars of Complaint 1 alleged: "1 The practitioner failed to conduct an appropriate assessment of Patient A prior to prescribing oxycodone regularly between 16 September 2008 and 24 July 2017 in that he did not: (a) take an adequate medical history; (b) conduct an adequate physical examination; (c) conduct an adequate investigation into possible pathological reasons for Patient A's pain; (d) assess risk of dependence. 2 The practitioner failed to conduct an appropriate assessment of Patient A prior to prescribing fentanyl regularly between 20 April 2009 and 29 October 2017 in that he did not: (a) take an adequate medical history; (b) conduct an adequate physical examination; (c) conduct an adequate investigation into possible pathological reasons for Patient A's pain; (d) assess risk of dependence. 3 The practitioner failed to conduct an appropriate assessment of Patient A prior to prescribing diazepam regularly between 22 November 2010 and 23 May 2016 in that he did not: (a) take an adequate medical history; (b) conduct an adequate physical examination; (c) conduct an adequate investigation into possible pathological reasons for Patient A's pain; (d) assess risk of dependence. 4 The practitioner failed to refer Patient A to a pain specialist at any time during the consultation period. 5 Between 26 May 2015 and 5 March 2017 the practitioner prescribed oxycontin to Patient A on the dates and in the quantities set out in the schedule attached and marked "Schedule A": (a) without clinical indication; (b) in quantities in excess of recognised therapeutic standards; (c) in doses in excess of recognised therapeutic standards; (d) in an irregular dosing pattern which does not accord with recognised therapeutic standards; (e) for a duration in excess of recognised therapeutic standards; (f) in an inappropriate combination with benzodiazepines; (g) without obtaining an authority to prescribe the medication from the Director-General of the Department of Health contrary to s 28 of the Poisons and Therapeutic Goods Act 1966 ("PTG Act"); (h) when he knew or ought to have known that Patient A was at risk of becoming dependent on the drug; (i) when he knew or ought to have known that Patient A was likely to abuse the drug. 6 Between 26 May 2015 and 5 March 2017 the practitioner prescribed fentanyl to Patient A on the dates and in the quantities set out in the schedule attached and marked "Schedule A": (a) without clinical indication; (b) in quantities in excess of recognised therapeutic standards; (c) in doses in excess of recognised therapeutic standards; (d) in an irregular dosing pattern which does not accord with recognised therapeutic standards; (e) for a duration in excess of recognised therapeutic standards; (f) in an inappropriate combination with benzodiazepines; (g) without obtaining an authority to prescribe the medication from the Director-General of the Department of Health contrary to s 28 of the PTG Act; (h) when he knew or ought to have known that Patient A was at risk of becoming dependent on the drug; (i) when he knew or ought to have known that Patient A was likely to abuse the drug." 1. Each of the particulars alleged was asserted to justify a finding of unsatisfactory professional conduct or, in the alternative, that when two or more of the particulars were taken together, to justify a finding of unsatisfactory professional conduct. 2. Schedule A recorded 152 prescriptions for fentanyl or oxycodone for Patient A between 26 May 2015 and 5 March 2017. 3. As we have recorded earlier, the Practitioner admitted the allegations made pursuant to this Complaint, and admitted that his conduct constituted unsatisfactory professional conduct. The Practitioner has at all material times been represented by Senior and Junior Counsel, instructed by competent and experienced solicitors. The Tribunal is comfortably satisfied by the evidence, and the Practitioner's admissions with respect to the facts alleged in support of this Complaint, that the conduct admitted by the Practitioner constitutes unsatisfactory professional conduct. 4. Finding unsatisfactory professional conduct pursuant to this Complaint is further supported by the expert evidence of Dr Louis Christie dated 13 November 2019 (Exhibit HCCC1, Tab 13, pp 4-8; Tabs 15, 17, 17A). Although Dr Christie's expert opinions were vigorously contested with respect to Patient B, and his evidence was thoroughly tested in relation to Complaints with respect to the Practitioner's care of Patient B, sensibly in the circumstances, there was no challenge to his opinion with respect to this Complaint. 5. The focus of the hearing, and Counsel's submissions, related to the Commission's allegations with respect to Patient B. We do not understand that the Commission seriously pressed, or needed to press its complaint pursuant to s 139B(1)(l) of the National Law. In those circumstances, the Tribunal does not need to consider whether, having found the Practitioner guilty of unsatisfactory professional conduct pursuant to s 139B(1)(a), he can permissibly be also found guilty of improper or unethical conduct: Health Care Complaints Commission v Khalighimonfared [2022] NSWCATOD 78; Health Care Complaints Commission v Javaheri [2022] NSWCATOD 162. If the Tribunal needed to, and found the Practitioner guilty of such conduct, on the facts of this case, that would not advance the Commission's case with respect to professional misconduct, as doing so would amount to taking the same offending conduct into account twice. Complaint 2 1. Complaint 2 alleged that the Practitioner was guilty of unsatisfactory professional conduct pursuant to s 139B(1)(b) of the National Law in that the Practitioner contravened: "(i) a provision of the Medical Practice Regulation (NSW) 2008 (now repealed) ("the Regulation 2008"); (ii) the Health Practitioner Regulation (NSW) Regulation 2010 (now repealed) ("the Regulation 2010"); (iii) the Health Practitioner Regulation (NSW) Regulation 2016 (now repealed) ("the Regulation 2016")." 1. The Commission repeated and relied upon the background to Complaint 1. The Complaint was particularised in the following terms: "1 Between approximately 4 November 2008 and 30 June 2010 the practitioner contravened clause 1 of Schedule 1 of the Regulation 2008 in that he failed to adequately document the following in Patient A's medical record: (a) clinical opinion; (b) management plan; (c) medical history; (d) physical examination(s); (e) the cause of Patient A's pain. 2 Between approximately 1 July 2010 and 31 August 2016 the practitioner contravened clause 1 of Schedule 2 of the Regulation 2010 in that he failed to adequately document the following in Patient A's medical records: (a) clinical opinion; (b) management plan; (c) medical history; (d) physical examination(s); (e) the cause of Patient A's pain. 3 Between approximately 1 September 2016 and late 2017 the practitioner contravened clause 1 of Schedule 4 of the Regulation 2016 in that he failed to adequately document the following in Patient A's medical records: (a) clinical opinion; (b) management plan; (c) medical history; (d) physical examination(s); (e) the cause of Patient A's pain." 1. The Commission asserted that each of the particulars in itself justified a finding of unsatisfactory professional conduct but, in the alternative, that when two or more of the particulars were taken together, a finding of unsatisfactory professional conduct was justified. 2. As previously recorded, the Practitioner admitted Complaint 2. 3. The evidence relating to Patient A is found at Tabs 27 to 31 of Exhibit HCCC1. Patient A's prescribing schedule (Exhibit HCCC1, Tab 27) is the evidentiary foundation for the schedule to the Commission's Amended Complaint, which replicates the source documents. The Practitioner's patient records with respect to Patient A (Exhibit HCCC1, Tab 31) are also consistent with the details of prescriptions emerging from the documents at Exhibit HCCC1, Tab 27. 4. The Commission relied upon the expert opinion evidence of Dr Louis Christie in support of this Complaint. Dr Christie was not cross-examined in relation to the opinions which he expressed with respect to Complaint 2. As asserted by the Commission in its submissions dated 17 October 2022 (at par 19), Dr Christie's opinion was that the Practitioner should have been aware of a number of "fundamental principles for the prescription of any S8 or S4D medication" but that, in the various respects identified in the Commission's submission, the Practitioner failed to observe those regulatory requirements. 5. Dr Christie's unchallenged opinion with respect to this Complaint was that the "clinical documentation through the period of [Patient A's] care from 2009 to 2017 is significantly below the standard I would expect of a competent GP, and invokes my strong criticism." In the absence of any challenge to Dr Christie's opinion with respect to this Complaint, and there was none, it is amply supportive of finding the Practitioner guilty of unsatisfactory professional conduct. 6. Further support for such finding is gained from the Practitioner's medical records for Patient A (Exhibit HCCC1, Tab 31), his prescribing schedule (Exhibit HCCC1, Tab 27), and the Pharmaceutical Regulatory Unit's documents (Exhibit HCCC1, Tabs 3, 28 and 29). 7. As submitted by the Commission (at par 24): "the unsatisfactory record-keeping as set out in Complaint Two had the effect of denying the patient appropriate handover of care to another general practitioner. Additionally, the poor recordkeeping may have contributed to the [Practitioner's] failure to maintain an appropriate watching brief over the patient and his pain management." 1. The Tribunal accepts the further submission of the Commission (at par 25) that, having been a general practitioner for two decades at the time he started treating Patient A, the Practitioner's lack of knowledge of the regulations, and failure to treat Patient A appropriately, indicated a serious departure from the standard to be expected from a health practitioner of an equivalent level of training or experience to the Practitioner. The Tribunal also accepts that the evidence in support of this Complaint reveals that the Practitioner failed to properly treat the patient and also "put him at risk of actual harm by prescribing the drugs, particularly S8 drugs, in such quantities and combinations." 2. The Tribunal is comfortably satisfied that, at least cumulatively, the conduct which the Practitioner has admitted in response to this Complaint constitutes unsatisfactory professional conduct. Whether, as the Commission submitted (at par 26) the conduct was sufficiently serious to amount to professional misconduct is a matter to be considered in the light of the Tribunal's findings with respect to Complaints 3 and 4. Complaint 3 1. Complaint 3 alleged that the Practitioner was guilty of unsatisfactory professional conduct under s 139B(1)(a) and/or s 139B(1)(l) of the National Law in that the Practitioner: "i. 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; ii. engaged in improper or unethical conduct relating to the practice or purported practice of medicine." 1. The Commission relied upon the background matters pleaded with respect to Complaints 1 and relied upon those matters in support of this Complaint. 2. Although their significance is controversial, the following background matters to Complaint 3 pleaded by the Commission are not in contest and provide: "The practitioner consulted with Patient B between January 2014 and 5 October 2017. In January 2014 Patient B was approximately 80 years old. Patient B suffered from a number of serious health issues including metastatic colorectal cancer and Type 2 diabetes. Between approximately 20 June 2015 and 23 January 2017 Patient B was admitted to Concord Repatriation General Hospital ("Concord Hospital") on around four occasions for various issues. During some of that time, Patient B was cared for by Medical Practitioner D who was a geriatrician. On 24 June 2015 Medical Practitioner D wrote to the practitioner advising inter alia that Patient B "needs to update his Will and also make arrangements for his five companies". On 2 September 2016 Medical Practitioner D wrote to the practitioner advising inter alia that Patient B "is very keen to get his affairs in order and has made previous Wills but is now keen to revise and is currently worrying about which charitable institution he should bequeath his wealth to." Patient B was admitted to Royal Prince Alfred Hospital ("RPA") between 6 May 2017 and 16 May 2017 ("the first RPA admission") with bowel obstruction. On 26 May 2017 Patient B was readmitted to RPA under the care of Medical Practitioner E, a palliative care specialist, with nausea and vomiting. Patient B was discharged on 26 June 2017 ("second RPA admission"). On 8 June 2017 Patient B revoked his former Will dated 25 May 2016 which named the Salvation Army as Executor and beneficiary to a large portion of his estate and made a new Will. The 8 June 2017 Will appointed 65% of Patient B's estate to the practitioner as executor and beneficiary. On 10 July 2017 Patient B revoked his 8 June 2017 Will and made a new Will. The 10 July 2017 Will appointed Solicitor C as executor and bequeathed to the practitioner his Strathfield property and approximately 90% of his estate. On or around 21 September 2017 the Practitioner was advised by NSW Police that a complaint had been made in relation to his care of Patient B ("the 21 September 2017 complaint"). On 21 November 2017 Patient B died. On 2 October 2019 a notice was published on the Supreme Court of NSW website ("the notice") stating that the Practitioner would make an application for administration with Patient B's Will within 14 days from the notice. The notice also indicated that Solicitor C renounced Probate of Patient B's Will on 9 September 2019." 1. In support of this Complaint, the Commission pleaded the following particulars: "1. During Patient B's second RPA admission the practitioner failed to observe proper professional boundaries in that he visited Patient B on at least 10 occasions: (a) in a non-professional capacity; (b) without clinical indication. 2. During the second RPA admission Patient B requested that the practitioner arrange for a solicitor to attend RPA for the purpose of assisting him with his Will and the practitioner arranged for a private solicitor, Solicitor C, to attend RPA which was inappropriate in that: (a) Solicitor C had assisted the practitioner's father with his Will so there was potential for a conflict of interest; (b) the request for legal assistance from Patient B ought to have been either: (i) referred to Patient B's treating health practitioners at RPA; (ii) referred to the NSW Trustee and Guardian. 3. Towards the end of Patient B's second RPA admission the practitioner failed to observe proper professional boundaries with RPA and Concord Hospital staff in that: (a) he frequently telephoned Medical Practitioner E about Patient B's health; (b) on or around 14 June 2017 he telephoned Medical Practitioner E and advocated that Patient B return home on gate leave for the purpose of arranging his finances; (c) on or around 21 June 2017 he telephoned Medical Practitioner E and stated that: (i) she was taking too long to arrange Patient B's discharge; (ii) Patient B ought to have 24 hour nursing care at home by staff from Concord Hospital; (d) on or around 18 June 2017 he telephoned Medical Practitioner D on at least two occasions and requested that Patient B be transferred from RPA to Concord Hospital under her care; (e) on or around 22 June 2020 the practitioner sent two messages to Medical Practitioner E regarding Patient B. 4. Between 25 June 2017 and 5 October 2017 the practitioner failed to observe proper professional boundaries in that he: (a) conducted almost daily home visits (approximately 92) to Patient B in circumstances where at most, weekly home visits were clinically indicated; (b) regularly attended to dressings for Patient B that ought to have been performed by community nurses. 5. Between 25 June 2017 and 5 October 2017 the practitioner billed Medicare on approximately 33 occasions for long consultations (level B, C or D) with Patient B which was inappropriate in that: (a) weekly home visits, approximately 18 consultations, were clinically indicated; (b) long consultations were not justified given the low level of clinical complexity. 6. [Deleted] 6A. The practitioner engaged in the conduct set out at particulars 1 and/or 2 in order to financially benefit by being named as a beneficiary in Patient B's Will, and was so named as a beneficiary in the Will executed by [P]atient B on 8 June 2017. 6B. The practitioner engaged in the conduct set out above at particulars 3 and/or 4 to discharge his obligations under an agreement entered in to [sic] with Patient B on or around 13 June 2017, to the effect that if the practitioner:- (i) assisted Patient B to be discharged from RPA and returned to his home; and/or (ii) cared for Patient B at home, the practitioner would be retained as a beneficiary in any existing Will or named as a beneficiary in any future Will, and was so named in the Wills executed by Patient B on 8 June 2017 and 10 July 2017. 6C. In the alternative to 6B above, the practitioner engaged in the conduct set out at particular[s] 3 and/or 4 in order to financially benefit by being named as a beneficiary in Patient B's Will, and was so named in the Will executed by Patient B on 10 July 2017. 6D Further or in the alternative to 6A, 6B and/or 6C, the practitioner stood to obtain a financial benefit by being named as a beneficiary of Patient B's Will, where being named as a beneficiary derived from the doctor/patient relationship between the practitioner and Patient B. 7. Between 20 September 2017 and 5 October 2017, the practitioner failed to arrange an interim transfer of care for Patient B to another medical practitioner at the Practice which ought to have been done as soon as possible since the practitioner became aware of the nature of the complaint on 21 September 2017. 8. [Deleted] 9. The practitioner failed to seek professional advice with respect to the management of his relationship with Patient B at any time prior to becoming aware of the 21 September 2017 complaint. 10. The practitioner failed to transfer the care of Patient B to another general practitioner at any time prior to 4 October 2017." 1. In reliance upon those particulars, the Commission asserted that each particular justified a finding of unsatisfactory professional conduct or that, in the alternative, when two or more of the particulars were taken into account a finding of unsatisfactory professional conduct was justified. 2. Other than admitting the allegations of fact which were objectively undeniable, the Practitioner denied that the conduct alleged against him, in isolation or in combination, supported a finding of unsatisfactory professional conduct. 3. In the Practitioner's primary submissions dated 18 November 2022 under the heading "Introduction", the Practitioner concisely outlined the basis of his resistance to this Complaint. That introduction provided: "2. [Patient B] was not a simple, vulnerable person. He was an intelligent man. He chose his social circle carefully. He carefully chose those he wanted to nominate as beneficiaries of his Will. His mind was sharp and he continued to successfully share trade until near to his final hospitalisation. [Patient B] was not someone who Dr Alexakis, or anyone else, could take advantage of. The evidence relating to what [Patient B] was like is contained in Parts 2 to 4 of these submissions. [We observe in passing that Patient B's capacity to execute a Will on either 8 June 2017 or 10 July 2017 was not in issue in the proceedings before the Tribunal.] 3. The HCCC characterises Dr Alexakis as a GP who preyed on [Patient B]. This is not the evidence. 4. Dr Alexakis is, and was, a caring GP. He sympathised with his patients. He saw [Patient B] needed support and advocacy while in hospital, and he took on both roles. Both are entirely consistent with the role of a GP. Dr Alexakis saw [Patient B] needed very close attention when at home, due to the gap in care he was receiving and his obstinacy in not accepting care he needed. The evidence demonstrating each of these matters is contained in Parts 9 and 12 of these submissions. 5. The HCCC's case is Dr Alexakis was motivated to do everything he did for [Patient B] in order to get [Patient B] to include him as a beneficiary in his Will. The reality is Dr Alexakis was incapable of producing any outcome for [Patient B] when he was in hospital. Dr Alexakis had no decision-making role in [Patient B's] treatment in hospital, nor in any decision by his RPA treating team about whether [Patient B] would be permitted to go home. The evidence is set out in Part 5 of these submissions. 6. The HCCC is incorrect to submit that there was some secrecy involved because only Dr Alexakis and [Patient B] knew the details of their contact. There was another witness in this proceeding who met both Dr Alexakis and [Patient B]. He received instructions and acted on [Patient B's] wishes. This witness is [Person C] [who was the solicitor who prepared each of Patient B's June and July 2017 Wills]. … 8. Dr Alexakis denied he was ever told he was named as an executor or beneficiary of [Patient B's] Will. [Person C] gave evidence he never told Dr Alexakis he had. 9. The evidence of Dr Alexakis and [Person C] of how the solicitor became involved in the consultation with [Patient B] is contained in Parts 6 and 7 of these submissions. The evidence Dr Alexakis was never told he was a beneficiary is contained in Part 8. 10. The HCCC's case relies heavily on Dr Christie, whose opinion is it is wrong in almost any circumstances for a professional to give a recommendation or referral to his or her patient if there is the slightest suggestion of a boundary being crossed. This hard line stance does not reflect the reality of people's lives, and of the dealings patients have with their doctors and specialists. People prefer personal recommendations. Dr Christie's stance ignores the reality of [Patient B's] life. [Patient B] wanted both a personal recommendation and then a personal meeting with a solicitor for advice. The evidence of this aspect of the HCCC's case is obtained at Part 6 of these submissions. 11. Significant care should be taken with the evidence of Dr Christie because the end result of his approach to patient care is there would be almost no role for personal care, concern, or involvement. Every interaction would be defined and regimented so as not to "confuse" a patient. 12. Dr Christie's approach is not the way Dr Alexakis practised medicine. It is not the way Dr Alexakis treated his patients. The limitations on Dr Christie's opinions are set out in Part 14 of these submissions." Particular 1 of Complaint 3 1. This particular alleged that: "During Patient B's second RPA admission the practitioner failed to observe proper professional boundaries in that he visited Patient B on at least 10 occasions: (a) in a non-professional capacity; (b) without clinical indication." 1. Patient B was admitted to RPA on 26 May 2017 and discharged from RPA on 26 June 2017. 2. In view of the comprehensive submissions of each party, it is appropriate to identify the ambit and identity of matters which were ultimately controversial, and then to consider the evidence before the Tribunal in order to resolve those controversies. As is apparent from their terms, the submissions of both parties, particularly with respect to the credibility of the evidence of the Practitioner, are relevant to the evaluation of most of the particulars of this Complaint. 3. The Commission submitted (at par 32) that the "context" in which the Practitioner attended RPA during Patient B's hospitalisation "on an almost daily basis" included a number of matters "most if not all of which, were known or ought to have been known" to the Practitioner at the time. Those matters, which were not ultimately in contest, were: "(a) [Patient B] was gravely ill and was at risk of dying; (b) according to the respondent, [Patient B] had been told in early May that he had two months to live; (c) as a consequence of one or both of the foregoing, [Patient B] was facing the prospect of dying during his second admission at RPA; (d) [Patient B] wanted to change his Will; (e) [Patient B] had wanted to change his Will since 2016; (f) [Patient B] no longer wanted to leave the substance of his estate to the Salvation Army; (g) [Patient B] had fallen out with his friend Frank Camilleri; (h) [Patient B] was socially isolated; (i) [Patient B's] personality was such that he was inclined to be suspicious of, and disinclined to trust, other people; (j) [Patient B] had no family to whom he owed the ordinary obligation of a testator, such as partner or children; and (k) [Patient B] held the respondent in high regard and trusted his opinion as a medical practitioner." 1. The Commission submitted (at par 33) that by the Practitioner's "almost daily" visits to Patient B at RPA, his "acquiescing to [Patient B's] request for the name of his personal solicitor and arranging for the solicitor to attend", "advocating on [Patient B's] behalf", the Practitioner "positioned himself as a person to whom [Patient B] owed a debt of gratitude", which was in addition to the doctor-patient relationship "whereby [Patient B] looked up to" the Practitioner and "also derived status from the relationship". It was thus submitted (at par 34) that a conflict of interest arose "where the trust and confidence that [Patient B] reposed in the Respondent, as his general practitioner, was overlaid with the Respondent placing himself in a position where it was likely that [Patient B] would both feel a debt of gratitude to him, and act on discharging that debt, by making the Respondent a beneficiary under a Will to be drafted by the Respondent's own solicitor." 2. The Commission (at par 36) relied upon the opinion of Dr Christie that: "… [I]t is clear to me that Dr Alexakis provided excessive reviews and failed to observe appropriate professional boundaries in his management of [Patient B] from January 2014 to October 2017. These failures are manifest in several ways: - Continued excessive visiting during [Patient B's] admission to RPAH (as documented by RPAH staff), with no clear clinical indication for the conduct of these visits - Accessing the patient bedside charts during visits to RPAH (see s.150 interview p.61) despite not having an appointment or being a member of the treating team at RPA." 1. The Commission relied on the evidence of the Practitioner (Tcpt, 21 July 2022, p 78 line 3ff) which revealed: "Q. Yes, but I'm talking about at the time, Dr Alexakis. At the time, did you see yourself as visiting him as his treating GP? A. I was visiting in a professional - as a professional. Q. But you understood that you had no clinical treating rights in respect of [Patient B] at that time? A. Yes. Q. You understood that at the time? A. I fully well. I'm aware that I'm not his - have any treating clinical rights at RPA, but it doesn't stop me from discussing issues of my patient with the team. And from what I recall, [Patient B] specifically asked me if, when I – he wanted a solicitor that I knew. Now, I know a lot of solicitors." 1. It was accordingly submitted by the Commission (at par 38) that it was: "… entirely inimical to the role of a general practitioner to have no clinical treatment rights in respect of a patient, and yet to purport to visit the patient in a professional role, that being the patient's general practitioner. The two are simply incompatible. If the respondent genuinely believed he was attending as [Patient B's] general practitioner, then he should have kept clinical notes of his visits, and should have communicated matters of relevance to [Patient B's] care to the RPA treating health practitioners. He did neither". 1. It was further submitted (at par 39) that the fact that the Practitioner had knowledge of matters which were relevant to Patient B's treatment at RPA, but did not disclose those matters to Patient B's treating health professionals, "underscores the way in which the Respondent, by remaining silent, potentially adversely interfered with the care given to [Patient B]". 2. In the context of this, and other particulars, the Commission expressed (at par 40) "grave doubts" about the "veracity" of the Practitioner's evidence, particularly with respect to his concern that Patient B would try to abscond from RPA. The Tribunal was urged (at par 41) to find that the Practitioner's attendance on Patient B at RPA "involved social visits that went well beyond the occasional welfare check-in of the kind performed by Dr D, and that those visits involved transgressing professional boundaries as set out in the Code of Conduct" (the Code) which is found in Exhibit HCCC3. 3. In support of this particular, the Commission relied on clause 4.5.4 of the Code, which obliges medical practitioners to ensure that the patient "is clear as to who has ultimate responsibility for coordinating care of the patient". The Practitioner's actions were submitted to be inconsistent with that requirement. It was submitted (at par 42) to be "noteworthy" that the Practitioner's conduct "triggered concern amongst staff at RPA", which led to Dr Wroth's complaint and ultimately set in train events which resulted in the current proceedings. 4. As is not in doubt, only two people know the truth with respect to what Patient B and the Practitioner said to each other during the many times they were together in the last months of Patient B's life. Only the Practitioner lives to tell about those conversations. No third parties have given evidence of conversations between the two men at which they were also present, or which they overheard. Although the fate of Patient B's Wills falls for determination by the Supreme Court in other proceedings, in view of what is at stake in those and the present proceedings, the Practitioner has considerable incentive to remember disputed events in ways which are favourable to him. As the Practitioner's defence to the Complaints involving Patient B has essentialy been to deny the substance of the Commission's allegations, and in the absence of circumstantial or other direct evidence impacting on the probabilities, the Commission's ability to prove its case to the comfortable satisfaction of the Tribunal depends significantly on demonstrating that the Practitioner's denials should be rejected, or, if not rejected, be afforded little weight. 5. The Practitioner was thoroughly but courteously cross-examined by Counsel for the Commission. Some of the evidence elicited in cross-examination of the Practitioner provides support for the Commission's submissions with respect to the veracity and reliability of the Practitioner's evidence. Examples of such matters include the Practitioner's evidence that he had not turned his mind to the possibility of being a beneficiary under Patient B's Will despite having been a beneficiary under the Will of a patient two years earlier; his inconsistent statements about Patient B's financial circumstances; his assertion that, despite the number and frequency of his meetings with Patient B, he "hardly knew the bloke"; his evasiveness about the seemingly innocuous circumstance that his wife delivered a mattress protector to Patient B's home; and his inconsistent statements about the utility of, and justification for, taking Patient B's blood sugar levels. The Tribunal has reservations about the veracity and reliability of the Practitioner's evidence. If the Practitioner bore the onus of proving his version of disputed events on the balance of probabilities, he would struggle to discharge that onus. As is not in doubt, the Practitioner does not have to prove anything in these proceedings. The onus remains with the Commission to prove its case to the comfortable satisfaction of the Tribunal. To discharge its onus of proof, the Commission does not have to persuade the Tribunal that the Practitioner's version of disputed events should be rejected. It is sufficient to demonstrate that its version of disputed events can be comfortably preferred to that of the Practitioner. 6. In its submissions of 21 November 2022, under the heading "Inconsistencies in the Respondent's Evidence", the Commission identified, by reference to the passages of transcript to which it referred (Tcpt, 5 September 2022, p 8 line 20), a number of matters emerging from the cross-examination of the Practitioner which were submitted to require the Tribunal not to accept the Practitioner's evidence with respect to disputed matters "unless it is independently corroborated". Although the Tribunal has reservations about the reliability of the Practitioner's evidence, those reservations do not persuade us that it should not be accepted unless it is corroborated in some way. The Practitioner's version of disputed events is not so improbable as to justify such an approach, which, with respect to the Commission, involves a real risk of erroneously reversing the onus of proof. 7. The Commission submitted (at par 2a) that the Practitioner had been "unable to articulate a reason as to why he didn't continue to visit [Patient B] after he stepped aside as his general practitioner other than 'he was my patient I didn't visit him anymore'". 8. The Commission further submitted (at par 2b) that the Practitioner "attempted to normalise his daily visits by referring to his commitment to patients, although he accepted that he did not, in fact, undertake daily visits for other patients" (Tcpt, 5 September 2022, p 10 line 50 - p 11 line 6). 9. The Commission submitted (at par 2c), accurately, that the Practitioner had been "evasive" about his wife taking a mattress protector to Patient B's house. The evidence of the Practitioner on which the Commission relied (Tcpt, 5 September 2022, p 11 lines 12-40) recorded: "Q. Is it correct that your wife attended at his [Patient B's] house with a mattress protector? A. I can't recall that. Q. It's recorded in the notes, isn't it, from the First Choice Care? A. I can't, I can't recall that. Q. Do you remember having a discussion with your wife about [Patient B] needing a mattress protector? A. I had discussed because of the ooze in [Patient B's] legs that his mattresses were getting damage and that a mattress protector would probably help. Q. So you remember having that conversation with your wife? A. I had it with [Patient B]. Q. I asked you whether you had a conversation with your wife about a mattress protector? A. Umm. Umm. Again it's a - I - again I remember - this is non-clinical, I do recall having a conversation with [Patient B] if, if, my wife dropped one off then I must have asked her to get a mattress protector for [Patient B] that's the only if she was - yes. Q. Dr Alexakis, are you hesitant about giving this evidence because you are aware of the fact that it would suggest that [Patient B] was more than merely a patient to you if you were having your wife drop off a mattress protector for him? A. Well I - I'm busy, I don't have time to go to shops to, to get them. I'm - yeah, I mean if she dropped it off I must have asked her but I don't see that that is a problem if she dropped off a mattress protector at his door." 1. On balance, although perhaps involving a curious absence of recollection, we do not consider the evidence of the Practitioner in relation to that issue to materially impact on evaluating the credibility of the evidence of the Practitioner, or determining the matters which we are required to determine. 2. The Commission submitted (at par 2d) that the Practitioner's asserted "strength" being medicine, and his claim that he did not "deal with the financial side at all and I certainly don't deal with the patient's financial side" (Tcpt, 5 September 2022, p 17 line 13), were inconsistent with the Practitioner arranging for his own solicitor to attend on Patient B when the latter "wanted assistance" from the Practitioner to regularise his company dealings and his Will. We have difficulty with that contention. There is no evidence that the Practitioner ever dealt with anything pertaining to Patient B's finances, or any evidence that Patient B ever sought or received such assistance from anyone. 3. The Commission referred (at par 2e) to evidence given by the Practitioner (Tcpt, 5 September 2022, p 33 line 41 – p 34 line 26) in response to a question from the Tribunal, and submitted that Patient B's refusal to allow the Practitioner to approach his previous doctor was an attempt by the Practitioner "to deflect attention away from the deficiencies in either his recordkeeping or his care of Patient B". The passage upon which the Commission relied revealed: "Q. And if you continue down his immunisation, I note that you had immunisation for flu, flu vaccine 2014/2015, did he have any other immunisation after that? A. I'd have to look it up. If he saw someone else and they didn't put it down, I'm not sure. I couldn't say. Q. Do you know that he had, for example, his Pneumovax being a diabetic? A. I couldn't say. Q. I'm just finding - trying to clarify, sort of your approach to his care because you know you were quite involved in his care and later on you were doing daily visits. To me I can't understand why there is that failure of very basic care in providing the required immunisation for an older person who has got diabetes? A. Again I - I can't answer that. I mean he may have had that vaccination with his previous doctor, I'm not sure. He wouldn't - he wouldn't allow me to approach his previous doctor. I asked him, who were you seeing, well that's my business and - Q. No but I meant his immunisation when he was under your care, after 2015 I can't see any records of that? A. Well again there's a flu vax and the Vaxigrip 2014/2015. I'm not sure what happened in 2016, he may or may not have had it. It may have been overlooked by us to put it in there and as far as his newer vax is concerned he would not - did not allow me, this was on the first visit, he did not allow me to approach his other doctor and only told me what he wanted me to know and did not want me to approach his previous GP and so I had no information with regards to his vaccinations. Q. But with respect to the flu vax which is a yearly vaccine - A. Yes. Q. - while he was under your care in 2016 and 2017, did you provide that vaccine? A. Well I provide it for 14 and 15, I'm not sure what happened with 16 and 17, I couldn't answer that but I do think that I would have but I may not have put it down that's all." 1. The Commission also relied (at par 2f) on inconsistencies which were submitted to emerge from answers to other questions asked of the Practitioner by the Tribunal (Tcpt, 5 September 2022, p 35 line 34 - p 36 line 26). Those exchanges revealed: "Q. Did anybody else know about your daily visits to [Patient B] and so could have taken over? A. No. But I'm sure that [Patient B] would have called the surgery and said what's happened to Dr Alexakis and, I'm sorry but he's had a CVA and he was oh that's no good, well what am I going to do and I'm sure that one of the other doctors would have stepped up at least to explore what other options would have been available. The notes were there - these - these notes were there. Q. Which notes were they? A. The typewritten - the typewritten notes, the notes that were there plus the correspondence from [Dr D], plus his results, plus the referrals that I've made to specialists, to hospital. Q. I may have misunderstood this then or have forgotten it. Did you not say that during those home visit times you were making handwritten notes? A. Yes. Q. And you kept them with you rather than add them to the patient record? A. Well, yes, I mean they eventually get to the patient record but you know at that stage they had not. Q. And at what point did they get to the patient record? A. I can't recall exactly when, a month later, a month and a half. Q. So had you had a stroke and [Patient B] had rung the surgery, say in the middle of August, how would they have known what was going on? A. Well I think the patient would have expressed - told them what was happening. One of the doctors could have contacted me. There would be a line of communication. I would have said, look my notes are in my bag, my handwritten notes are in the bag, you can - you can peruse those, there's a discharge summary there, there's a domestic helper there and he has some contact with the palliative care team as well. Q. So would you describe it as a situation where another doctor could easily have taken over his care? A. Yes I mean the information was accessible and he - he was moving from - he was moving to a more and more - towards a more team approach with - inclusive of other health professionals in his care. Q. But his medical record at the Strathfield Family Medical Centre, there were no notes held at the Centre from the beginning of your home visit time, is that correct? A. No there weren't but they get transferred across." 1. The Commission submitted (at par 2g) that the Practitioner "deflected attention away from matters that reflected badly on his care of Patient B", in part by emphasising Patient B's "alleged unwillingness to be engaged in the medical care process". The Commission further submitted that although there was "some evidence to suggest that [Patient B] at times had a prickly relationship with some health practitioners there is also evidence – such as his regular visits to Dr D – that he was engaged in the need to consult with health practitioners and where necessary consult specialists and have surgery (for example for his colorectal tumours)". 2. The Commission relied on evidence given by the Practitioner in cross-examination (Tcpt, 5 September 2022, p 38 line 46 - p 42 line 12). Although relied upon in support of this particular, as with other matters raised by the Commission in its supplementary submissions, the evidence was relied upon as part of a broader challenge to the reliability of the Practitioner's evidence. 3. Having given evidence of his "standard practice" with respect to contacting patients, and the "default" position which he applied, the Practitioner was asked (Tcpt, 5 September 2022, p 39 line 33): "So as it turns out, this drop in haemoglobin was the first overt sign of his bowel cancer starting?". The Practitioner replied, "Yes". The Practitioner was then asked, "The lack of your acting on it perhaps delayed his management by 2 months, would that be a fair comment", to which he replied, " Well I ---". The Tribunal then asked: "As opposed to had you called him the day you saw this drop in haemoglobin and said you better come in we've got something to -". The Practitioner replied "Well again my - our standard practice is call the patient 3 times so I give the patients a week or so to come in as per - as expected and if they don't then and if it's significant pathology then we do call and then we send the registered mail". 4. In the course of exchanges with the Tribunal, the Practitioner referred to Patient B's asserted hesitance "to do much about his health" and his dislike of "seeing other practitioners", "going to hospital", even at the Practitioner's insistence. The Practitioner suggested that it was "very hard to get [Patient B] to launch into the next phase of any treatment". The Practitioner was asked (Tcpt, 5 September 2022, p 40 line 47) whether "looking back on those 3 consultations in that period from February through to May do you think that care was adequate?". The Practitioner replied: "Yes, I do and ultimately he went to hospital not because he wanted to, he still felt that there was nothing wrong with him, he fell and injured his shoulder and went to casualty not because he voluntarily went but because he fell over and had a sore shoulder and it was at hospital where they said - he presented, he went to Concord Hospital and took the RPA letter and they looked at the letter knew what was going on so I guess we have to look at the letter but he was more concerned about his shoulder than any letter or anything else". 5. In the course of a lengthy response (Tcpt, 5 September 2022, p 41 lines 14-37) to a question about the role of a GP, and the need for records so that another practitioner taking over the management of the patient could do so effectively, the Practitioner referred to particular aspects of the character and attitudes of Patient B and his asserted reluctance to follow the Practitioner's medical advice and distrust of medical practitioners who he thought had "tried to rip me off", or who he had not seen but thought would be "trying to rip me off as well". In the course of his answer, the Practitioner described Patient B as "one individual who doesn't fall into the oh, your average patient does this and, oh, your average patient would - and this is what you should be doing and you go through that process and you're met with a brick wall and it's like prising out a course of action that would be beneficial to him and his presentation at the hospital a long time after you see him for a totally unrelated condition is reflective of this individual and it's a pity he's not around so you could meet him and, you know, but here we are". 6. In the following responses, the Practitioner gave further detail of what he asserted had been Patient B's particular attitudes to his own health. When reminded that there were no clinical notes between 27 January 2017 and 2 May 2017, and asked what his management plan for Patient B was, the Practitioner said (5 September 2022 transcript, p 42 lines 27-36): "Well, the management plan would be for him to – the only real change in his management would have been the diabetic management which I went to his home on 27th and on 3rd February and exhaustingly went through the use [of] a glucometer, the use of the lantus, spoke about diet I think highlighted, you know, meal options because he had an issue with his teeth at the time and nutritionally it wasn't great. I know there are no notes to support that. I received a discharge summary which I wrote the home visits on the back of a discharge summary, those details, and in the process of moving the discharge summary and the handwritten notes to the practice that it never got copied into his file." 1. When asked (5 September 2022 transcript, p 32 line 38) "How did you find his progress between early February and early May?", the Practitioner replied "There was none". 2. On further questioning of the Practitioner by the Tribunal with respect to his management plan for Patient B, or its absence, the Practitioner rejected suggestions that he had left Patient B's care "up to him rather than up to you", by referring to a number of instances in which he had advised Patient B what he needed to do in the interests of his health, but maintained that, ultimately, Patient B decided whether he would follow that advice or not. 3. The general thrust of the evidence of the Practitioner in this context was that he gave advice with respect to each of the matters raised with him by the Tribunal, some of which Patient B followed, much of which he did not, the clear import of the Practitioner's evidence being that he had little control over what Patient B did or refused to do with respect to the advice he gave him. 4. The Commission asserted (at par 2j) that there was a "disconnect" between the Practitioner's asserted care for Patient B and what the records revealed. In particular, the assertion by the Practitioner that "I'd hardly known the guy really, I mean" was submitted to be entirely inconsistent with the evidence of the Practitioner with respect to the extent of his contact with him. (Tcpt, 5 September 2022, p 41 line 48 - p 42 line 2). 5. The Practitioner asserted that the Commission's Complaint "overlooks (or ignores) the conduct of Dr D, who made a social call to [Patient B], without notice, for no other reason than she knew he was lonely and needed cheering up" (Submissions dated 18 November 2022, par 136). 6. It was further submitted, encapsulating the Practitioner's defence to this particular (at par 137), that it was "appropriate" for the Practitioner to visit Patient B in hospital, that the Practitioner "knew about matters relevant to [Patient B's] treatment in hospital" and "knew" Patient B. 7. It was further submitted (at par 138) that the Commission's contention that the Practitioner did not disclose relevant matters with respect to Patient B's health to the health practitioners at RPA who were treating Patient B (including Patient B's intention to abscond) could not advance this particular. Reliance was placed on the following evidence (Tcpt 5 September 2022, p 75 line 6 - p 76 line 31): "Q. Dr Alexakis, [Patient B] told you that he intended to leave the ward, is that right? A. He told me that he wanted to abscond and go back home. I said to him that you're too unwell to go. I was concerned about his thought processes and reasoning at the time. He told me that the medical team were not communicating with him, not discussing his matter, not giving him any insight as to how well or unwell he was. And, that you know, there's no point in him staying there. I was objective to [Patient B] about how well he was or wasn't. I explained to him that leaving the hospital will certainly be his choice, but it would be foolish to attempt to do such, as he was too unwell. I said, "You've got a bowel obstruction. You've got a tube hanging out of your nose. You've got a drip in your arm. Where are you going to go". So, I tried to reason with him and discuss with him his situation at that point in time. I said to him that "You've gotten over it 10 days ago. There's no reason why you can't get over it this time either". And I was kind to him, and I supported him through this moment in his admission … Q. Did you tell any of the medical practitioners who were treating him, that he needed more information in order to be settled at the hospital? A. Well, in my phone calls to the team I did. Q. On 28th of May? A. I didn't call them on the 28th I don't think. Q. When you say that you said earlier that when I asked you whether you'd told the medical team about his intention to abscond, you said that [Patient B] told you not to. Is that right? A. Yes. Q. You had a conversation with him where you said, "I need to tell the nurses and doctors what you're planning". Is that what happened? A. Yes. Q. He said, "don't do that". Did you say to him, look, I'm your GP and you could become seriously ill, or die if you discharge yourself. I must tell them? A. Words to that effect, but I didn't say that I must tell them. Again, looking at him, he wasn't going anywhere. His legs were very swollen. It's like having 4 kilos of extra weight around each leg to walk. He wasn't going anywhere. I was confident that he was not going anywhere, and I had the confidence that he was going to overcome this. I was able over the space of 2 days to actually change his mind to say yes, okay. And stop this constant scheming about taxis and giving me money to help him go, and to create a diversion so he could go down in the lift and he's wait for me there. I mean, this is, ludicrous. And, you know, he was able to, stay and he gained confidence. Q. Dr Alexakis, you said earlier that you were concerned when he said that he was going to abscond, but you said a moment ago that you didn't think it was realistic. So, if it wasn't realistic, there was nothing to be concerned about, was there? A. No, I don't agree with you. I mean, there was, there was a concern that he might try something foolish, but the likelihood after I'd spoken to him had diminished. And when I spoke to him the second time had diminished further." 1. The Practitioner relied upon his asserted obligation to respect Patient B's confidentiality (at par 139), and relied on the following evidence (Tcpt, 5 September 2022, p 82 line 25 - p 84 line 35): "Q. There was nothing to stop you speaking to the treating team, and telling them your insights about [Patient B] on the 27th, 28th or 29 May 2017, was there? A. [Patient B] did not want me to communicate with the team. Q. There was nothing to stop you communicating with the team on the 27th, 28th or 29 May 2017. A. I had the confidence of my patient. My patient told me not to, I will not. Q. Is it your view - A. Unless you want me to say that I felt emboldened to actually go against what my patient tells me. Q. You felt that going against what your patient told you would be less beneficial to him than sharing your insights with his treating team. Is that right? A. I think that he did not give me permission to actually communicate those issues with the team. And I respect my patient's wishes, and at the same time, I didn't think that he was going to go down that path of absconding from hospital. … Q. You say that you were there as his GP, and that you were in a professional relationship with him. A. I was there at a professional level. Q. As a GP. That's the profession you are in isn't it? A. I'm always his GP. Q. You are always his GP, and you had information. Do you accept that the information that you knew about [Patient B] might have been useful for his treating team to know? A. Yes, but in the context of my patient telling me don't communicate with them, and in the context of me thinking, well, I don't think he's going to go anywhere, then I didn't see any harm in not communicating it as it was not an emergency." 1. As is apparent from the terms of this particular, the issues of fact which require determination are whether the Practitioner's visits to Patient B during the latter's second RPA admission were in a non-professional capacity and without clinical indication. We do not understand either the particular or the parties' submissions to require that we make findings with respect to the ten discrete occasions when the Practitioner visited Patient B. The issue is whether the Tribunal is comfortably satisfied that, considered globally, the Practitioner's visits were in a non-professional capacity and without clinical indication, and involved a failure to "observe proper professional boundaries". 2. Whether the Practitioner visited Patient B in a professional or other capacity, and whether those visits had or lacked a clinical indication, is an evaluative determination to be made by the Tribunal on an objective basis. Put bluntly, the Practitioner's beliefs with respect to the basis of, and foundation for, his visits to Patient B assume little significance in determining this issue, although his evidence with respect to what he observed with respect to Patient B's health and knew of his medical history, and what he did or did not communicate to Patient B's treating medical team at RPA about such matters are relevant to determining the nature of his visits. 3. The Tribunal has evidence from Patient B's treating medical practitioners at RPA during his second admission. Evidence of Dr Nora Breen 1. Dr Nora Breen provided a statement with respect to her involvement in Patient B's treatment at RPA (Exhibit HCCC1, Tab 7). Dr Breen was a Clinical Neuropsychologist at the time of Patient B's second RPA admission. Dr Breen referred (at par 7) to having received a "summary" about Patient B from a referring doctor named "Daniel". Dr Breen further recorded having been informed that Patient B had a substantial estate, "managed his own finances, worked in solitude, that his GP was his main support person, and that he wanted to change his [W]ill". 2. Dr Breen referred to a conversation with Patient B's referring doctor on 1 June 2017. Dr Breen recorded (at par 10) that as she works in "Allied Health, I do not consult with the inpatient's GP. The treating doctors discuss the inpatient's care with the GP, and Neuropsychology receives a referral from the treating doctor." 3. Dr Breen recorded (at par 11) that, in her first consultation with Patient B on 2 June 2017, he "refused to participate in testing". In cross-examination by Mr Fernandez on behalf of the Practitioner on 13 July 2022, Dr Breen was asked about the circumstances in which she came to consult with Patient B, and the purpose of such consultations. Nothing emerging from Dr Breen's cross-examination provides a basis for doubting Dr Breen's evidence about Patient B's attitude to testing, or materially impacts upon our determination of this particular. Evidence of Dr Brian Fernandes 1. Dr Brian Fernandes prepared a statement for the proceedings (Exhibit HCCC1, Tab 8). In 2017, Dr Fernandes was employed as a Resident Medical Officer (RMO) at RPA. In the course of his duties, Dr Fernandes saw Patient B on a regular basis. Dr Fernandes referred (at par 9) to his belief that the Practitioner had informed other members of the RPA team treating Patient B about some concerns with respect to Patient B's capacity. 2. Dr Fernandes referred (at par 14) to a telephone call to the Practitioner's surgery on 31 May 2017, and to a conversation with the Practitioner the following day, during which, having in the interim spoken to Dr E, a Senior Clinician at RPA, Dr Fernandes informed the Practitioner that "No further medical input or otherwise that are required from him", "provided an update on [Patient B] as per Dr Alexakis' request, and also informed him that chemotherapy had not been considered for Patient B as he was palliative, and the goals of his care were supportive management". Although Dr Fernandes referred to other matters which assumed significance in the context of other particulars of the Commission's application, he did not shed further light on the subject matter of this particular. 3. In cross-examination of Dr Fernandes by Senior Counsel for the Practitioner, the following exchange occurred (Tcpt,12 July 2022, p 53 line 48): "Q. You say … that from the medical perspective of the palliative care unit, there was no medical requirement or necessity for Dr Alexakis to visit [Patient B] while he was an inpatient at Royal Prince Alfred. A. Yes. Q. Realistically speaking, from the medical requirement there's no necessity for anybody to visit a patient or an inpatient at hospital is there. A. There is no medical requirement. No. Q. But it's almost an essential part of, hopefully, someone's treatment and recovery that they have, within reason, a regular regime of visitors. A. You could say so. Q. If only to keep up their morale. A. You could say so. Q. … a patient having a good morale is important in the context of trying to bring that patient to recovery, or maintaining mental health while physical health may have problems that sort of perspective; correct? A. Yes. Q. Friends visit as necessary; correct? A. Yes. Q. Sometimes people don't have many friends and so you just see the same faces to the extent that you may run into visitors; correct? A. Yes. … Q. You had some contact with Dr Alexakis; correct? A. I did. Q. You knew he was [Patient B's] general practitioner at least up until the time of admission; correct? A. Yes. Q. You assumed that when the time came, whenever it was to be, that [Patient B] would be discharged initially into the care of Dr Alexakis? A. Yes, and to that point I recall in the notes there was a clarification from the team to clarify if that was, indeed, the patient's wishes. Q. And that was the patient's wishes; correct? A. Yes. … Q. When the time came to discharge, at least initially, the primary responsibility would pass to the general practitioner; correct? A. Correct. Q. It was the general practitioner's job to, as best he could, maintain the patient's health and wellbeing and, wherever possible, consistent with that, to look after him without readmission to hospital. A. Yes. Q. From time to time Dr Alexakis enquired of you concerning [Patient B's] health and treatment; correct? A. No, only enquired once. … Q. He appreciated that you and your colleagues were the specialists providing specialist care to [Patient B] in the hospital; correct? A. Yes. Q. You knew that [Patient B], again for whatever reason, wasn't a fan of the hospital or the medical staff; correct? A. I can't say yes or no. There was times during his admission that he made that very clear. Q. Yes. You knew directly or indirectly that he didn't want to be in hospital, he wanted to be at home. A. Yes, and just to go back to the previous question, [Patient B] also did say RPA was the best hospital that he had ever been in, as well. Q. But he still wanted to be at home? A. Yes, I agree with that. … Q. You knew directly or indirectly that the patient had a significant degree of trust and confidence in Dr Alexakis? A. Yes. Q. You knew directly or indirectly that [Patient B] wasn't as forthcoming in communication with hospital staff as you might hope that he would be; correct? A. I'd have to think of a particular example that would have to align to I can't absolutely agree with that." 1. In response to a question about the potential for communication "to the patient through the GP", Dr Fernandes said (Tcpt, 12 July 2022, p 56 line 5): "We would use any resources available to ensure that a patient was well taken care of. If that required us to involve the general practitioner, then that is what we would always seek to do". 2. In the course of subsequent questions, Dr Fernandes agreed, in principle, that, although advice from a patient's general practitioner might not be considered of assistance by the patient's hospital treating practitioners, there was that potential and, at least inferentially, within limits, even if not considered of assistance, it was not inappropriate for the treating practitioner to seek to give advice. Later in his cross-examination (Tcpt, 12 July 2022, p 61 line 38), Dr Fernandes agreed with the "proposition that a GP's role is to contribute to the wellbeing of the patient", albeit there "may be a much lesser role while the patient is in a hospital". Dr Fernandes further agreed that the GP's role was to "encourage and support the specialist team if that can be facilitated". Dr Fernandes also said that "A compassionate gesture on behalf of the general practitioner would be seen as going above what would normally be routine - routine medical practice and would be done out of a genuine sense of compassion" (at line 44), adding that, in the context of his experience as a palliative care doctor, "very, very few times have I had general practitioners visit patients, but often they visit often once, just to say goodbye to patients at the end of their life". 3. Dr Fernandes was also asked (Tcpt, 12 July 2022, p 64 line 27): "Q. But if the general practitioner is not treating, he's just there to give a bit of spiritual encouragement and have a chat with somebody who otherwise was having palliative care and no one else visiting. A. Sure. So then where - where visiting in a private context, in which case, yes, patients are welcome to have any visitor in a private context." 1. As Dr Fernandes identified, it was important to "define in what capacity is this general practitioner visiting. Is it visiting in the sense of a friend, or are we visiting in the sense of a general practitioner who I'm going to hand over care to". 2. The evidence from Dr Fernandes, and other medical witnesses, established that, upon his discharge from hospital, the expectation of all medical practitioners was that Patient B's post-discharge care would, at least initially, be provided by the Practitioner. 3. Dr Fernandes confirmed (Tcpt, 12 July 2022, p 71 line 25) that he "did not find any visits from Mr - from Dr Alexakis - I didn't find anything caused harm, no" to Patient B. Evidence of Dr E 1. Dr E provided a statement in the proceedings (Exhibit HCCC1, Tab 9). Dr E is a Palliative Care Specialist at RPA, as she was during the time of Patient B's second RPA admission. 2. Dr E stated (at par 5) that her first contact with the Practitioner was "around the second week" of Patient B's admission, and that she considered his request for a competency assessment of Patient B "fair as [Patient B] lived alone and lacked social support". Dr E further stated (at par 6) that "Dr Alexakis continued to contact me every few days during [Patient B's] admission to the RPAH, enquiring about his progress. I didn't make a record of the telephone calls I received from Dr Alexakis until such point that I formed a suspicion about his conduct towards [Patient B]". 3. As is apparent from Dr E's statement, her "suspicion" about the Practitioner's conduct arose out of things which she overheard or was told. Dr E referred (at par 8) to a telephone call from the Practitioner on 9 June 2017 during which he "enquired" about Patient B's health and told her a number of other matters with respect to his medical history. Dr E recorded (at par 10) that, following a conversation with Patient B on 13 June 2017, "Dr Wroth and I had a discussion and we shared a concern that Dr Alexakis may have been 'grooming' [Patient B], leading to the change in his [W]ill. Dr Wroth and I were concerned that Dr Alexakis did not have appropriate boundaries in his care of [Patient B] and that he had a conflict of interest". 4. Dr E referred (at par 11) to a telephone call which she received from the Practitioner on 14 June 2017 in which he was "quite persuasive in advocating for [Patient B] to return home on gate leave". Dr E referred (at par 12) to a telephone call which she received on 19 June 2017 from Dr D, Geriatrician Staff Specialist at Concord Hospital, informing her that "she had received at least two telephone calls from Dr Alexakis on 18 June 2017" suggesting that Patient B be transferred to Concord under her care. 5. Dr E referred (at par 14) to a telephone call from the Practitioner on 21 June 2017 in which he "said assertively that I was taking too long in the discharge planning for [Patient B]" and that the Practitioner told her that Patient B "had expressed concerns to him that the discharge planning was taking too long, and that he would never get home". Dr E recorded the Practitioner as having "recommended that [Patient B] have 24 hour private nursing care at home, which Patient B could afford, and could be arranged at Concord Hospital". 6. Dr E referred (at par 15) to a text message sent to her by the Practitioner on 22 June 2017. Dr E annexed screenshots of three text messages of that date. The texts referred, essentially, to matters relating to Patient B's health. Dr E stated (at par 16) that she never saw Dr Alexakis at RPA, and that the records of RPA recorded the Practitioner's attendances at the following dates and times: 9 June 2017: 20:15; 10 June 2017: 15:35; 11 June 2017: 22:55; 12 June 2017: 12:50 (Queen's birthday holiday); 13 June 2017: 20:45; 14 June 2017 (time not recorded); 18 June 2017 (time not recorded); 21 June 2017: 17:54; 22 June 2017: 21:00; and 24 June 2017: 21:00. 7. By agreement, Dr E was cross-examined by AVL. In cross-examination, Dr E was asked questions about the Practitioner's advocacy on behalf of Patient B (Tcpt, 12 July 2022, p 6 lines 48-50). Dr E was asked whether, irrespective of the Practitioner's advocacy, or Patient B's wishes, "ultimately, it was the decision of the hospital staff and those who treat him how and when he would go home?". Dr E replied "Yes". 8. Dr E was asked "To the extent that Dr Alexakis conveyed or reconveyed [Patient B's] view about [Patient B] going home, that was nothing exceptional was it?". When the question was ultimately allowed, Dr E replied, "That's fine" (Tcpt, 12 July 2022, p 7 line 43). 9. Dr E further agreed (Tcpt, 12 July 2022, p 7 line 45) that "The decision making process so far as the treatment of any patient including [Patient B], is a result of the exchange of various opinions amongst people who know something about [Patient B]". Dr E confirmed that she was not (Tcpt, p 7 line 50) "about to come to a conclusion merely because Dr Alexakis expressed a view to you" and would "consider the merits of anything he said". Dr E said (Tcpt, p 8 line 3): "He's welcome to express his view, but because I have a duty of care, I have to see when is the most appropriate time to discharge the patient home". Dr E agreed (Tcpt, p 8 line 10) that the fact that the Practitioner "advocated for [Patient B] was just another viewpoint for you to take into account in your decision making process", Dr E's evidence making clear that she made the decisions in the best interests of the patient irrespective of how persuasive the Practitioner may have been in advocating for Patient B. 10. In cross-examination, Dr E (Tcpt, 12 July 2022, p 8) confirmed her opinion that there was no medical/clinical necessity for the Practitioner to visit Patient B at RPA and that he was not then treating Patient B, but agreed that "visits by anyone do not require medical or clinical necessary", and that visits by "anyone with a legitimate interest in the health and welfare of the patient" were "fine". 11. Dr E agreed (Tcpt, 12 July 2022, p 12 line 28) that it was "all the better" if "you're making a request to the patient to cooperate, and for whatever reason - the patient doesn't trust you or the patient thinks the world is against him - if you've got someone else advocating for you with the patient". Dr E further agreed the Practitioner "was hoping to get your recommendations as to what care [Patient B] would need" on discharge. which was one of "the very things that you've got to communicate to the GP when the time for discharge comes" (Tcpt, p 12 line 34 and following). 12. Dr E agreed (Tcpt, 12 July 2022, p 13) that Patient B was likely to be discharged into the Practitioner's care and was asked whether "whilst the GP enquiring of [Patient B's] progress did not, as it were, assist you in your decision making, you were happy to inform the GP of such progress as there was". Dr E agreed with that proposition. 13. In a series of answers (Tcpt, 12 July 2022, p 14), Dr E reiterated that, whilst the Practitioner was free to make suggestions with respect to Patient B's treatment, it was ultimately her decision as to whether those matters were helpful or influential in making decisions. Neither Dr E nor any other health practitioner from RPA who gave evidence in the proceedings suggested that the discharge of their duties with respect to Patient B was adversely impacted, or influenced by anything said or done, or not said or done, by the Practitioner. 14. Dr E agreed (Tcpt, 12 July 2022, p 22 line 11) that "in respect of some matters" with regard to Patient B, she had received information from the "general practitioner that you didn't get or hadn't been told from the patient". In re-examination (Tcpt, p 34 line 2), Dr E stated that "there wasn't anything" by way of information relevant to Patient B's health or treatment which she learned from the Practitioner. Evidence of Dr Melanie Wroth 1. Dr Melanie Wroth swore an Affidavit in the Supreme Court proceedings in which the Practitioner was a party with respect to Patient B's Will(s), which is found in Commission's supplementary material tendered on 12 July 2022 (Exhibit HCCC2). 2. Dr Wroth was a Senior Staff Specialist Geriatrician at Royal Prince Alfred Hospital during the time of Patient B's second RPA admission. As is not in doubt, Dr Wroth's contact with Patient B was confined to one day, 13 June 2017 when she attended on Patient B at a time when Dr Fernandes and Dr E were also present. 3. In cross-examination (Tcpt, 14 July 2022, p 8 line 19) Dr Wroth agreed that it was "not unknown, but it's very unusual" for a GP to visit a patient while the patient is in hospital. Dr Wroth subsequently (Tcpt, p 8 line 32) said that "It almost, in my experience, never happens" that a GP visits a patient while the patient is in hospital, the exception being "in the end of life setting where the GP knew that the person was going to die in hospital" and "came to say goodbye". That was the only time Dr Wroth could remember a visit by a GP to a patient while the patient was in hospital. 4. Dr Wroth agreed (Tcpt, 14 July 2022, p 9 line 13) that "a GP can insist" on, in this instance a neuropsychological assessment, "but it doesn't necessarily mean it's going to happen. A GP can't demand that it happen and have it happen, but they can make the demand". Dr Wrote agreed (Tcpt, p 9 line 21) that GPs "can be very forceful in what they request or want, and in many times that occurs and sometimes it doesn't occur", and made clear that the decision was ultimately that of the treating specialists in the hospital "based on the accumulation of knowledge and opinion" (Tcpt, p 9 line 27). 5. Dr Wroth confirmed (Tcpt, 14 July 2022, p 17 line 20) that she became involved in Patient B's case "with the object of contributing to the understanding of what had gone on with Dr Alexakis and whether or not it was sufficient cause for concern to instigate a complaint". Dr Wroth's only contact with Patient B was of approximately 1 hour's duration on 13 June 2017 (Exhibit HCCC1, Tab 33, p 179). Dr Wroth did not ever actually speak to the Practitioner. Dr Wroth confirmed (Tcpt, 14 July 2022, p 25 line 24) that her involvement with Patient B was not "in relation to the treatment of the patient". 6. Dr Wroth confirmed (Tcpt, 14 July 2022, p 27) that Patient B made "no criticism whatsoever" of the Practitioner, "saw him as a friend" with whom he would "discuss matters other than medical matters" and was "very satisfied with the close attention he was given" by the Practitioner. Dr Wroth did not suggest that she saw any reason not to accept that Patient B meant what he said. 7. When asked about her concern that the Practitioner had failed to "maintain professional boundaries" with Patient B (Tcpt, 14 July 2022, p 33 line 19), Dr Wroth said that there was "a large amount of contact that was social and friendship, rather than professional and that - the patient himself thought of the doctor as his friend and, in fact, his only social contact". In view of the evidence to which we have referred earlier, that conclusion must have been substantially based on what others told Dr Wroth. When asked what was "wrong with having professional boundaries and non-professional boundaries" (Tcpt, p 33 line 23), Dr Wroth referred (Tcpt, p 33 line 25) to the "Code of conduct" which she said "means that you recognise the nature of your relationship with a patient as a treating doctor". When it was suggested to Dr Wroth that "there was nothing with regard to the professional care as a GP provided by Dr Alexakis that was in any way affected by his relationship otherwise with the patient" (Tcpt, p 33 line 29), Dr Wroth replied "I don't know that. The thing I was concerned about was when the patient said, 'He comes to visit me whether I need it or not', and he interpreted that, he believed that that was an indication of what a very good man he was". 8. Dr Wroth explained (Tcpt, 14 July 2022, p 33 line 41) her concerns, one being her "impression" from Patient B that the Practitioner "charged him for some of the visits that he may not have needed or wanted or asked for and that he only charged him Medicare". The other concern was Dr Wroth's impression that there had been a "clear development of a - what the patient thought was a very close friendship from somebody who was continuing to be his treating GP". 9. The Medicare report with respect to Patient B (Exhibit HCCC1, Tab 41) does not record Medicare as having been billed for any consultation with Patient B between 3 May 2017 and 5 July 2017. 10. Dr Wroth confirmed (Tcpt, 14 July 2022, p 34 line 14) her opinion of Patient B's ability to differentiate between "a professional visit or a friendship visit", and suggested that "most people would not continue to treat patients who were close friends and it's strongly discouraged". Whether the Practitioner and Patient B were "friends" is in issue, but no witness has given evidence which could be relied on suggesting that the two men were ever "close friends". Evidence of Dr Charles Betts 1. Dr Charles Betts, who was a trainee Psychiatrist at RPA in 2017, made a statement to investigating officers of the Commission on 30 April 2019 (Exhibit HCCC1, Tab 9B). Dr Betts (at p 5) was referred to entries made by other health practitioners in RPA records and asked about statements Patient B was recorded as having made about visits by the Practitioner. Dr Betts did not refer in his statement to having ever seen the Practitioner visit Patient B. Dr Betts was referred (at p 7 line 17) to his note that the Practitioner "believed a capacity assessment was appropriate in the context of the patient's deterioration and ongoing financial matters". Dr Betts said (p 7 line 30) that "at the time I didn't weigh whether or not it was an appropriate thing to be doing. There was a referral and we helped facilitate these requests through the medical team as a part of our role. So we're doing what we could to make a contribution to it and we did not do the capacity assessment ourselves, we do not offer that service." Implicit in Dr Betts' statement is that he did not see anything inappropriate in the Practitioner's request at the time it was made. Dr Betts' statement did not otherwise reveal any matters of direct relevance to this particular. 2. In cross-examination (Tcpt, 12 July 2022, p 44 line 1), Dr Betts was asked whether he had spoken to the Practitioner after having a conversation with Patient B. He said that, although he was unsure when the conversation occurred, he had spoken with the Practitioner "because Dr Alexakis was [Patient B's] treating doctor" (Tcpt, p 44 line 17). Dr Betts clarified that it was part of the "process that we touch base with a GP and just get some collateral information and try to understand their side of things" (Tcpt, p 44 line 20). He agreed that was because doing so "can have useful information on a patient" (Tcpt, p 44 line 23). Dr Betts added that speaking to Patient B's GP "helps us - it helps gives - gives context to what we're seeing on the spot" and that an "aspect of why we would contact a GP was to keep the GP in the loop about the patient's treatment plant" (Tcpt, p 44 line 39-42) and that doing so was considered by Dr Betts to "help" in "dealings with the patient at the time in the hospital (Tcpt, p 44 lines 47-49). Dr Betts also agreed that obtaining such information was important because the patient would be discharged into the care of the GP and that, as "a matter of diligence", the hospital treating team wanted to "share the information" which it had on the patient with the GP (Tcpt, p 45). 3. It was suggested to Dr Betts (Tcpt, 12 July 2022, p 45 line 13) "That's what happened during this telephone call with Dr Alexakis wasn't it; the getting of information and a sharing of information; is that right?". Dr Betts replied "That's right". Evidence of Dr D 1. Dr D made a statement in the proceedings (Exhibit HCCC1, Tab 9A). During Patient B's second admission at RPA, Dr D was a Geriatrician at Concord Repatriation General Hospital (Concord), and first met Patient B in June 2015, following his admission to Concord after a fall. Although Dr D's evidence assumes significance with respect to other particulars, her statement also referred (at pars 75-83) to events which occurred during Patient B's second stay at RPA. In the course of that statement Dr D referred to a conversation with Dr Fernandes (at par 75) in which she informed him that "Dr Alexakis would be able to provide details of [Patient B's] recent progress". 2. Dr D referred (at pars 75-78) to a brief social visit she made to Patient B at RPA on 12 June 2017. Dr D then referred (at pars 81-82) to what she considered "inappropriate" telephone calls made to her by the Practitioner with respect to Patient B's hospitalisation. Dr D's statement did not contain other matters of relevance for the purposes of our evaluation of this particular. 3. In cross-examination, Dr D was asked about her social visit to Patient B on 12 June 2017. Dr D explained (Tcpt, 18 July 2022, p 266 lines 13-15) that her visit was "not to cheer [Patient B] up. To say goodbye, because I considered the risk of him dying really quite high. And just so that he knew that there was somebody who cared for him". 4. Dr D clarified (Tcpt, 18 July 2022, p 266 lines 11-22) that she "knew he didn't have any family, and he told me that there were no close friends or anyone that he would consider close. And so, I was there in a professional capacity, like, so not to provide a service, but to acknowledge the relationship that we'd had, and to say goodbye". Dr D was asked (Tcpt, p 267 line 6) whether she "thought that there was nothing unprofessional or improper about speaking to the treating team" about Patient B, to which Dr D replied "No. And I particularly wanted to discuss private care at home as an option for [Patient B]". This was at a time when, as Dr D acknowledged, she was not part of Patient B's treating team. Predictably, the Practitioner relied on this evidence. 5. Dr D agreed (Tcpt, 18 July 2022, p 267 lines 20-24) that it was "not unusual for GPs to visit in hospital" although she had not "encountered such frequent visits before" and that every doctor-patient relationship was "different". 6. Dr D rejected the suggestion that her visit on 12 June 2017 was "as a friend", reiterating that she "visited as a doctor" (Tcpt, 18 July 2022, p 267 line 29), although she "would classify it as a social visit" (line 36) which, although "a non-medical visit" was "part of that doctor patient relationship, and it's very common with people who are dying" (lines 39-40). Dr D's statements logically and helpfully explain how a non-medical, social visit by a doctor could be part of a doctor-patient relationship, not involving friendship. 7. Dr D said (Tcpt, 18 July 2022, p 268 lines 12-14) that hospitalisation such as that of Patient B during his second RPA admission was "a very challenging period and, you know, there is great value in having people who have cared for you present". The Practitioner was the only person who the evidence reveals as fitting that description. 8. Dr Louis Christie, a Medical Practitioner specialising in palliative care at the Dudley Private Hospital Orange, prepared an expert report dated 14 November 2019 in support of the Commission's case (Exhibit HCCC1, Tab 13). 9. Dr Christie opined (at p 11) that the Practitioner: "… was unclear himself to some degree about the nature of the relationship [between himself and Patient B], but he either failed to recognise this, or chose to ignore the fact. In either failing to recognise, or failing to act to resolve, the development of a conflicted relationship with a patient, Dr Alexakis' behaviour falls substantially below that expected of a senior GP and draws my strong criticism." 1. In support of his opinion, and for the purposes of this particular, Dr Christie relied (at p 11) on the Practitioner's "continued excessive visiting during [Patient B's] admission to RPAH (as documented by RPAH staff), with no clear clinical indication for the conduct of these visits". 2. Dr Christie was asked to provide his opinion (Exhibit HCCC1, Tab 15, p 14, question 5) "in relation to the appropriateness or otherwise in relation to the frequency of Dr Alexakis' visits to [Patient B] while he was an inpatient at the Royal Prince Alfred Hospital from 26 May 2017 to 26 June 2017, and was there any clinical/medical necessity for those visits". Dr Christie's opinion was that: "The visits made by Dr Alexakis were not appropriate. He does not have visiting rights to the Royal Prince Alfred Hospital, and therefore could not visit in a professional capacity. His involvement did not result in any constructive alteration of advancement of the clinical management, and there was no clinical or medical necessity for these visits. His visits may, however, have served to further confuse the nature of the relationship between himself and [Patient B], and may have added to [Patient B's] frustration and uncertainty." 1. Dr Christie was accordingly of the view that the Practitioner's "behaviour falls substantially below that expected of a senior GP and draws my strong criticism." 2. The Practitioner's submissions under the heading "Limitations on Dr Christie's Evidence" (pp 43-51) articulated the challenges to Dr Christie's evidence with respect to this and other particulars. It was submitted that Dr Christie had "limited experience" of general practice being a "GP with a special interest in palliative care, employed by NSW Health throughout the Western NSW Local Health District", in circumstances where "20% of his work is hospital work, and 80% comprises community, home visiting and outpatient work" (at par 106). 3. For the reasons there recorded (at par 107), the Practitioner submitted that Dr Christie's "observation about Dr Alexakis' practice as a busy suburban GP with a heavy daily workload" were "limited". It was submitted that Dr Christie's adherence to his opinion based on assumptions arising from the material relied upon by the Commission was problematic in the light of evidence provided by the Practitioner, if that evidence were accepted by the Tribunal. 4. Under the heading "A Hard Line (and Unreasonable Expectations) about Boundaries Between Doctors and Their Patients", the Practitioner submitted (at pars 116-121) that Dr Christie's "inflexible approach towards the professional boundaries between GPs and their patients would be unlikely to accord with this Tribunal's experience of doctor-patient relationships". Although this submission does not invite the Tribunal to rely upon the expertise of its Medical Members, rather than on the evidence before it, the Tribunal is vigilant to avoid doing so. The Tribunal determines this issue by reference to the evidence of Dr Christie and the other health professionals to which we have referred. 5. It was submitted that Dr Christie's approach "seemingly would not allow for any type of interaction between doctor and patient unless very restricted". By reference to an article by Professor Hambleton OAM referring to a practitioner caring for patients and feeding their dogs "if necessary, in order to strengthen the doctor-patient relationship", Dr Christie was asked whether he thought there was anything "unethical about what Dr Hambleton says he has done". Dr Christie replied, "As a specific action, no. The risk still is that the boundaries around a doctor patient relationship can be blurred.". The following exchange ensued (Tcpt, 19 July 2022, p 8 lines 43-49): "Q. Any experienced medical practitioner learns to manage the risk, correct? A. Correct." 1. The Practitioner relied upon the following exchange during cross-examination of Dr Christie (Tcpt, 19 July 2022, p 339 lines 15-32): "Q. Declining to accept a cup of tea might legitimately or otherwise offend a patient, mightn't it? A. It may do. My job is not to make friends. My job is to look after people. Q. No, your job also involved the development of a communication relationship, or a rapport relationship with a patient, correct? A. Yes. Q. If that involves having a cup of tea, that's not going to corrupt the relationship. Is it? A. It may create a potential for the patient to understand the relationship as something different to what it is. Q. You saw nothing in the treatment of [Patient B], up to the admission at the end of May that indicated that he did not receive proper medical treatment for whatever needs he had. Do you agree with that. A. I agree with that." 1. The Practitioner relied on the further evidence of Dr Christie (Tcpt, 19 July 2022, p 337 line 38 - p 338 line 17): "Q You talk about, 'The development of a conflict relationship'. By that, do you mean to say that at some stage, there was an actual, not a potential conflict? A. There is an actual conflict. Q. What was the actual conflict? A. The actual conflict is that Dr Alexakis is - has - the relationship has developed to such a point that, in my view, it sits outside the boundaries of an accepted doctor-patient relationship. Q. By the use of the word relationship, do you mean the non-doctor-patient relationship, or the doctor-patient relationship. A. This, I think cuts to the crux of the matter. The code of practice. There are clear boundaries articulated for a doctor-patient relationship. Dr Alexakis, and the relationship that Dr Alexakis has with [Patient B] appears to side outside, or occur with no clear regard for those boundaries. And, therefore the relationship is conflicted. Q. Is it the doctor-patient relationship that has been conflicted, or is it the non-doctor-patient relationship that has been conflicted? A. It's the relationship between the two men, and the difficulty in teasing out those two different components of the relationship. That creates the conflict. Q. How did that conflict manifest itself to your knowledge, adversely to the interests of [Patient B]? A. It manifests itself because if you are emotionally and socially engaged in someone, it is - you cannot provide, or it is incredibly difficult to provide appropriate medical care to that person because of the way that the relationship works. A doctor-patient relationship is different to a friendship or another sort of relationship." 1. Reliance was also placed on the evidence of Dr Christie in cross-examination (Tcpt, 19 July 2022, p 329 line 50 - p 330 line 9) that the relationship between the Practitioner and Patient B was "so muddied that it is difficult for me to see how the appropriate professional boundaries of that relationship were maintained across time", that being the time which commenced in January 2014. 2. It was submitted (at par 120) that Dr Christie was "unable to identify the circumstances of the conflict between Dr Alexakis and [Patient B] until the time [Patient B] went into RPA". In support of that submission, the following evidence of Dr Christie in cross-examination was relied upon (Tcpt, 19 July 2022, p 330 line 41 - p 331 line 5): "Q. Can you identify any circumstances in which - up to the admission to RPA in May 2017 - that conflict, or potential conflict, manifested itself in respect of what you've read? A. In relation to specific instances, no. As I said, I'm reliant on retrospective documentation. It was - it seems to me that - these things don't develop instantly overnight. They take a long time to develop, and it appears to me that post-hospitalisation and during hospitalisation the relationship was operating outside what I would consider normal professional boundaries for a doctor/patient relationship, and so at some point that conflict has evolved, but I can't clearly pinpoint for you a date or a time. Q. Well, not only a date or a time, I asked you, can you manifest any incident, or can you identify any incident, in which the conflict, or the potential conflict, manifested itself up to his admission to RPA in May 17? A. No." 1. Dr Christie was submitted (at par 121) to have revealed "inflexibility" in his attitude to this particular. The following exchange was relied upon in that context (Tcpt, 20 July 2022, p.20 lines 29-41): "Q. You were asked … whether the fact of Dr Alexakis ceasing to be [Patient B's] general practitioner on 5 October 2017 made a difference to your opinion about Dr Alexakis seeking probate; remember that? A. Yes. Q. Why is it that the fact of him ceasing to be a doctor didn't change your opinion? A. Because the - again, it comes back to the relationship that was in play for that period of time and the power imbalance that exists within that relationship, and the potential for - the potential for the patient in the doctor patient relationship to - to act within - because of that power imbalance in a way that wouldn't otherwise occur." 1. In its submissions in reply, the Commission submitted (at par 31) that Dr Christie's "experience in a small regional town makes him particularly well equipped to opine on maintaining appropriate professional boundaries". It was further submitted (at par 34) that: "The approach taken to the cross-examination of Dr Christie seems to presume that some disadvantage to [Patient B] must be manifest in order for the Respondent's conduct to be impugned. This is not correct. Failure to observe professional boundaries in and of itself: (a) is inconsistent with the Respondent's professional obligations; and (b) is liable to, and often does, put a patient in a position of disadvantage." 1. It was further submitted (at par 35) that, although the criticisms of Dr Christie were unfounded, even if Dr Christie had made unfounded criticisms of the Practitioner "that does not axiomatically have the effect of diminishing the value of his opinions otherwise". Consideration 1. The determination of this Complaint is not without complexity. We have not been referred to anything in the Code of Conduct which provides express or significant assistance. As is reasonably apparent from the expert medical evidence to which we have referred, and ultimately not disputed by Dr Christie, determining professional boundaries in circumstances such as Patient B's during his second RPA admission turns on the particular facts and circumstances of the relationship between the Practitioner and the patient. 2. As is not in doubt, the Commission bears the onus of proof of each element of its Complaints – the Practitioner does not have to prove anything. The factual content of the Commission's allegations must be established on the balance of probabilities and the question of whether that level of proof has been reached is to be assessed having regard to all of the relevant evidence before the Tribunal: Health Care Complaints Commission v Wilcox [2020] NSWCATOD 10. The principles identified in Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 apply (Health Care Complaints Commission v Grygiel (Termination Application) [2020] NSWCATOD 53), and require the Tribunal to be mindful of the nature and seriousness of the allegations to be proved, with the result that the Tribunal must be "comfortably satisfied" that the allegations are made out on the balance of probabilities. 3. In Bradshaw v McEwans Pty Limited (1951) 217 ALR 1, the High Court said that where direct proof is not available "it is enough if the circumstances appearing in evidence give rise to a reasonable and definite interference: they must do more than give rise to conflicting inferences of equal degrees of probability so that the choice between them is a mere matter of conjecture". 4. In Marshall v Prescott [2015] NSWCA 110 at [83], Beazley P (as her Excellency then was), with the concurrence of Macfarlan and Emmett JJA, agreed with that observation. That observation is relevant for present purposes, although it is to be remembered that it arose in the context of proceedings in which the standard of proof did not require proof on the balance of probabilities in the "Briginshaw sense". 5. The evidence to which we have referred suggests that the Practitioner's visits were to some extent in a social capacity, to some extent in a professional capacity and, although without clinical indication, were not entirely devoid of a clinical connection, at least in the sense suggested by Dr D. The evidence, particularly of Patient B's treating team at RPA, and to a lesser extent of Dr D, suggests that the nature of the Practitioner's visits to Patient B had elements of each of those matters. On any view of the evidence, the frequency of the Practitioner's visits to Patient B was disproportionate to any professional or clinical purposes of such visits. 6. The Tribunal has concerns about the appropriateness of the Practitioner's visits to Patient B during his second RPA admission. The visits were almost daily, at times in the evening and on public holidays, and occurred at a time when the Practitioner was not part of Patient B's treating team. Dr D's evidence, which we accept, was that occasional visits as empathic gestures, and appropriate advocacy for the patient were acceptable. To the extent that the Practitioner sought to advocate for Patient B during that time, we are not comfortably satisfied that his doing so was in a non-professional capacity, or without any clinical indication having regard to the evidence to which we have referred. We agree with Dr Christie that the Practitioner's conduct involved a blurring of the boundaries of the doctor-patient relationship. Although the Practitioner's visits to Patient B, and their frequency, gave rise to concerns amongst the treating practitioners at RPA with respect to the Practitioner's motivation, which require consideration in the context of the determination of other particulars of this Complaint, we do not evaluate the Practitioner's conduct by reference to concerns which others held in reliance upon statements by Patient B. 7. Not insignificantly, the treating practitioners at RPA did not appear to regard the Practitioner's questions, his offer to provide information about Patient B, or his advocacy on the patient's behalf, to be inimical to their provision of appropriate health services in Patient B's best interests. They may not have assisted those efforts, but the evidence does not suggest that they impeded them. The evidence suggests that, to some extent, the Practitioner's engagement with the treating practitioners at RPA was of some potential, if not actual, benefit to Patient B. 8. We accept, particularly in the context of a patient of the age and with the problematic health of Patient B, and his personal circumstances, that maintaining professional boundaries in the way Dr Christie suggests they should have been was not simple or straightforward. It is also to be remembered that the Tribunal evaluates the Practitioner's conduct with the benefit of hindsight. That said, well-motivated but inappropriate conduct cannot be excused on that basis. 9. Clause 4.5 of the 'Good Medical Practice: A Code of Conduct for Doctors in Australia (March 2014)' (the Code) is concerned with "coordinating care with other doctors". Clause 4.5.4 states that good medical practice involves "ensuring that it is clear to the patient, the family and colleagues who has ultimate responsibility for coordinating the care of the patient". 10. We have earlier referred to evidence which makes quite clear that, whatever the Practitioner said to the RPA practitioners, they made the decisions with respect to the care of Patient B. There is no evidence that Patient B was confused or otherwise unclear about who had ultimate responsibility for coordinating his care during his second RPA admission. Although the Practitioner has been criticised by the Commission and Dr Christie for not communicating Patient B's intention to abscond to the RPA specialists who were caring for him at the time, the evidence does not establish that the Practitioner did other than advise Patient B against doing so. We do not find reliance upon 4.5.4 of the Code of Conduct advances the present particular. 11. Clause 8 of the Code is concerned with "professional behaviour". Clause 8.2 of the Code is concerned with "professional boundaries", and relevantly provides that: "8.2 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. This includes those close to the patient, such as their carer, guardian or spouse or the parent of a child. …" 1. Not surprisingly, the Code identifies conduct which clearly breaches professional boundaries, but does not define, what "professional boundaries" are. Determining whether professional boundaries have been breached involves an evaluative judgment. 2. In Hinch v Macquarie Broadcasting Holdings Limited v Attorney General (Vic) (1987) 164 CLR 15; [1987] HCA 56, Wilson J said at [19] that "a decision which is the outcome of the balancing process is not a discretionary judgement. It is the result of an evaluation, consistently with accepted judicial principle, of competing matters of fact". In Dwyer v Calco Timbers Pty Ltd (2008) 234 CLR 124; [2008] HCA 13, after describing the nature and features of discretionary decisions, the High Court said (at [40]): "Rather different is the situation where statute creates a legal norm, in this litigation that of a 'serious injury', and does so in terms which require for their operation in a given dispute the identification and evaluation of facts and assigns that fact-finding in the first instance to a judge sitting alone". 3. In Singer v Berghouse (1994) 181 CLR 201; [1994] HCA 40, an appeal against orders made pursuant to the Family Provision Act 1982 (NSW), the issue in which was whether the jurisdiction to make an order for family provision was enlivened, the High Court recorded at [24]: "Strictly speaking, however, the jurisdictional question, though it involves the making of value judgements, is a question of objective fact to be determined by the judge at the date of the hearing." 1. The jurisdiction of the Tribunal to make protective orders pursuant to the National Law is enlivened only if the practitioner is found guilty of unsatisfactory professional conduct and/or professional misconduct. The observations with respect to evaluative judgements are thus instructive. The High Court's observations, albeit in an appellate context, with respect to "second opinions" in relation to evaluative determinations confirm the reality that, given the same primary facts, evaluative judgements are likely to vary from one decision maker to another. 2. Further in Singer v Berghouse at [20], the High Court that: "Although the precise nature of the jurisdictional question has been the subject of some debate, the correct view is that the question is strictly one of fact, notwithstanding that it involves the exercise of value judgements. The evaluative character of the decision stems from the fact that the court must determine whether the applicant has been left without adequate provision for his or her proper maintenance, education and advancement in life." (citations omitted) 1. We are not satisfied that the Practitioner's visits to Patient B were predominantly in a professional capacity and/or predominantly clinically indicated, having regard to the evidence to which we have referred. The particular alleges an absence of such elements. Although the Practitioner's conduct may have fallen below the requisite standard, we are not comfortably satisfied that the visits, or the preponderance of them, were sufficiently in a non-professional capacity or without clinical indication to enable us to make that finding. If we are wrong in that regard, we are not comfortably satisfied that the conduct fell significantly below the requisite standard. 2. To the extent that our conclusion is inconsistent with the expert opinion evidence of Dr Christie, which was the only expert opinion evidence with respect to this issue, a number of observations are relevant. 3. As is not in doubt, the role of expert evidence is to assist the Tribunal to determine the issues which it is required to determine: Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305. The Tribunal cannot, and does not, purport to rely upon any expertise which some of its Members may have in preference to Dr Christie's evidence. It is also to be remembered that, through no fault of Dr Christie, his expert opinion was provided before the Tribunal heard evidence in cross-examination from the witnesses whose evidence with respect to this particular we have earlier referred. That evidence informs the Tribunal's findings of primary fact with respect to this issue. The concessions made by the various medical practitioners at RPA to whose evidence we have referred, who were responsible for Patient B's care during his second admission, militate against finding this particular established to the requisite standard. Dr Christie could not have anticipated that evidence when he wrote his report. 4. In declining to find this Complaint made out to the requisite standard, we are not critical of Dr Christie, and do not accept that, in this instance, Dr Christie revealed the inflexibility, or lack of relevant qualifications or experience asserted on behalf of the Practitioner. As will be seen, it does not follow that rejection of this particular materially impacts upon the determination of other particulars in support of which the Commission relies on the evidence of Dr Christie. 5. To the extent that the Commission maintained this particular in reliance upon s 139B(1)(l) of the National Law, for the foregoing reasons, it has not been established. Particular 2 of Complaint 3 1. Particular 2 of Complaint 3 alleged that: "During the second RPA admission Patient B requested that the practitioner arrange for a solicitor to attend RPA for the purpose of assisting him with his Will and the practitioner arranged for a private solicitor, Solicitor C, to attend RPA which was inappropriate in that: (a) Solicitor C had assisted the practitioner's father with his Will so there was potential for a conflict of interest; (b) the request for legal assistance from Patient B ought to have been either: (i) referred to Patient B's treating health practitioners at RPA; (ii) referred to the NSW Trustee and Guardian." 1. It is not in issue that Solicitor C, to whom we shall refer as Person C, had previously done work for the Practitioner's father, or that the Practitioner facilitated Person C's initial attendance upon, and introduction to Patient B. 2. The Commission's case, as the submissions on its behalf make clear (at par 44), was encapsulated in the evidence of Dr Christie that the Practitioner was guilty of unsatisfactory professional conduct by: "Arranging the services of [Person C] to act as a solicitor for [Patient B] in the redrafting of the Will. In the s 150 interview and in his response to the Commission, Dr Alexakis indicates that [Patient B] had been requesting a solicitor to alter his Will over a period of 12 months. Dr Alexakis had correctly identified (according to his response to the Commission) that [Patient B] could access appropriate legal assistance through the Office of the Trustee and Guardian. Dr Alexakis was therefore aware of this, and it would have been appropriate for him to refer [Patient B] to the office directly himself if he held immediate concern. I note also that, at the time [Person C] was engaged through Dr Alexakis, [Patient B] was an inpatient at RPAH. If he felt it necessary to act in any, Dr Alexakis should have raised his concern around the need to immediately engage a solicitor with the treating team (in the same manner in which he requested a neuropsychiatric assessment), so that the treating team could arrange for a solicitor from the Office of the Trustee and Guardian to attend [Patient B]. It was inappropriate for Dr Alexakis to arrange for a specific solicitor, known to him personally, to attend [Patient B] whilst an inpatient at RPAH for the purpose of redrafting his [W]ill. …" (Exhibit HCCC1, Tab 15 p 11) And: "… I believe Dr Alexakis and [Patient B] understood their relationship to be a doctor-patient relationship throughout the period January 2014 – October 2017. In the latter part of this period, Dr Alexakis overstepped appropriate professional boundaries through several actions, including: … arranging a specific solicitor to provide legal advice to [Patient B] in the redrafting of his Will." Thereby failing: "… to identify and maintain appropriate professional boundaries … thereby falling significantly below [the standard] expected of a senior GP …." (Exhibit HCCC1, Tab 15, p 13) 1. In his statement in response to this Complaint (Exhibit R1, Tab 2) the Practitioner set out (at pars 77-103) the basis upon which he denied this particular. 2. The Practitioner asserted (at par 79) that Person C was a "well respected solicitor who I have used and continue to use" who had "always acted in a professional manner", the Practitioner having "every confidence in his capacity to provide legal advice to [Patient B] in an unbiased manner". 3. The Practitioner asserted (at par 80) that he informed Patient B of Person C's identity and "disclosed to [Patient B]" that the solicitor "had acted for me and my family (parents/siblings) over the preceding 30 years". No direct or circumstantial evidence provides a basis for rejecting, or doubting the Practitioner's evidence. 4. The Practitioner further said (at par 81) that Patient B told him that he would "interview and assess" Person C and "then make his own decision", and asserted that "[t]his he subsequently did". Nothing alleged by any witness to have been said by Patient B is inconsistent with the Practitioner's allegations. There is evidence, including that of Person C, which is consistent with the Practitioner's allegations. 5. The Practitioner asserted (at par 83) that Patient B "never discussed in detail his financial affairs or finances with me, apart from noting his interest in shares". There is no evidence to the contrary. The Practitioner relied upon letters to him from Dr D on 24 June 2015 and 2 September 2016 noting that Patient B "also discussed with her getting his affairs in order and revising his Will". 6. The Practitioner maintained (at par 85) that he "never spoke to [Patient B] about his Will, nor did I ever ask him about his Will". Ultimately, unless the Practitioner is not believed, other evidence establishes that he did, or his evidence is shown to be sufficiently unreliable, a contrary finding is not open to the Tribunal. 7. The Practitioner alleged (at par 86) that in late 2016 during routine visits to his surgery, Patient B asked him for the name of a solicitor to assist him to get his "company affairs in order" and to "revise [his] Will". The Practitioner said that he advised Patient B that there were a number of solicitors available in the Burwood and Strathfield areas whose details could be accessed on the internet or, in some instances, the local newspaper or Yellow Pages, and that if Patient B "ha[d] trouble deciding you could use the Public Trustee". The Practitioner deposed to another occasion when he alleged that he had a conversation with Patient B in similar terms (at par 88). There is no evidence contrary to, or casting doubt on the veracity of that evidence. 8. The Practitioner said (at par 89) that on one of his visits to Patient B during his second admission to RPA, Patient B said that he wanted a solicitor "to come and visit me in hospital so that I can tidy up my affairs as soon as possible. I also want you to have my capacity assessed so that my wishes aren't challenged in the future". It is not in doubt that the Practitioner requested such a capacity assessment and that one was conducted. Nor is it in doubt that, ultimately, Patient B was found to have testamentary capacity. Although that is not conclusive of the issue, it is a circumstance which provides some support for the Practitioner's allegations with respect to his conversation with Patient B. There is no suggestion that Patient B's capacity was assessed during his second RPA admission for reasons unrelated to his financial affairs and/or his Will. It was never suggested to the Practitioner that he requested a capacity assessment to protect any interest which he anticipated or hoped that he might receive pursuant to any Will made by Patient B. Nor is there any evidence that the Practitioner knew more about Patient B's financial affairs than the general matters to which he referred. 9. When allegedly pressed by Patient B, the Practitioner claimed (at [ar 89) that he said to him, "I know a solicitor that I can contact who might be able to come and see you. … But ultimately it's up to you to interview the solicitor and decide if you want to engage him". The Practitioner reiterated (at par 90) that he disclosed the connection between Person C and his family, and recorded details of the conversation (at par 91). The Practitioner asserted that Patient B then said, "contact him and see if he can come and see me". There is no evidence to the contrary. 10. The Practitioner then referred (at par 98) to his introduction of Patient B to Person C. The Practitioner referred (at par 99) to Person C collecting him in his car from the Practitioner's surgery and driving to RPA at around 7.00 p.m. The Practitioner deposed to a brief conversation (at par 100) with Person C in the course of their journey to RPA during which he said "[Patient B] wants to revise his Will, and also talk about his companies". Apart from introducing Person C to Patient B, and leaving the room, the Practitioner alleged that he had no other conversation with Patient B and/or Person C about any advice given by Person C or, consequent upon such advice, any instructions which Patient B gave to Person C. Throughout the proceedings the Practitioner has maintained that it was not until after the death of Patient B that he became aware that he benefitted from Patient B's June or July 2017 Wills. There is no evidence contrary to any of that evidence. 11. In his Affidavit filed in the Supreme Court proceedings (Exhibit HCCC1, Tab 10B), Person C, who has been in continuous practice as a solicitor since 1981, and who, amongst other fields of law, practises in succession and estate law, deposed to the circumstances in which he came to meet, and subsequently prepare Wills for Patient B. Person C said (at par 7) that in about late May 2017 he received a phone call from the Practitioner at his office and they had a conversation in words to the effect of: "Dr Alexakis: I've got a patient harassing me for my solicitor's details so that he can do a new will and put his companies' affairs in order. He's in hospital. Would you go and see him? Deponent: Yes, that's fine." 1. Person C was not cross-examined on that conversation. Person C then referred to his visit to RPA where he met Patient B. His evidence was consistent with the evidence of the Practitioner to which we have referred. There is no suggestion that they "put their heads together" with respect to their evidence. 2. Person C annexed to his Affidavit a typed copy of handwritten notes made by him shortly after he met and conferred with Patient B on 6 June 2017. The file note records Patient B telling Person C that he had "asked Dr Peter Alexakis for recommendation (sic) a solicitor". Person C then referred to the instructions for and circumstances surrounding the preparation of a Will for Patient B which was executed at RPA on 8 June 2017. Person C and his secretary were the attesting witnesses to that Will. Person C attached handwritten file notes with respect to that attendance and a transcription of those notes. 3. Person C referred to the circumstances in which Patient B came to execute a further Will on 10 July 2017. Having regard to the terms of this particular, which is limited to Patient B's second RPA admission, it is unnecessary to refer further here to matters or events subsequent to the execution of Patient B's second Will. Nowhere in his Affidavit did Person C suggest that he had in any way discussed with the Practitioner the contents of the Will which he prepared and witnessed on 8 June 2017. 4. Although it might have been anticipated that Person C would have told the Practitioner that he had been named as executor in Patient B's Will having regard to the nature and extent of an executor's duties and obligations, Person C was not cross-examined about that. There is no impediment to accepting the Practitioner's evidence that he did not know the contents of Patient B's Will until after the latter's death. 5. In passages which were not challenged in cross-examination, Person C concluded his Affidavit by saying (at pars 33-34): "33 It is my usual practice that where I have any doubt as to the capacity of a testator, I ask questions and record the same in a file note so as to attempt to satisfy myself as to the legal testamentary capacity. 34 At all times during my attendances on the deceased, he appeared to me to be alert, mentally sharp, intelligent, friendly and very clear about his testamentary intentions. In my recollection, the deceased knew what he was doing making a Will, had an understanding of what comprised his estate, weighed up the interests of his potential beneficiaries and was not under any delusion or influence at the time of making his Wills. I am in no doubt as to the deceased's capacity to make a Will during the course of me acting for him in 2017 as outlined in this Affidavit." 1. As is not in doubt, the matters to which Person C referred in the latter paragraphs of his Affidavit are consistent with those which emerge from the decision in Banks v Goodfellow (1869-70) LR 5; [1870] QB 549, which has been consistently followed in New South Wales (Carr v Homersham (2018) 97 NSWLR 328; [2018] NSWCA 65). In addition to testamentary capacity, which was not in issue when either of Patient B's 2017 Wills were made, under the Banks v Goodfellow test, the testator must: 1. understand the nature of the Will and its effect; 2. have some idea of the extent of the property which they are disposing of under the Will; 3. be aware of the persons for whom the testator would usually be expected to provide (even if choosing not to) and be free from any delusion of the mind that would cause him not to benefit those people. 1. There is no evidence that Person C's evidence was unreliable with respect to observance of the Banks v Goodfellow test, or in any other respect, or that anything done or not done by him advances the Commission's prosecution of this particular. No reason for Person C procuring or aiding Patient B's execution of any Will which did not reflect his free and informed wishes has been suggested in these proceedings. 2. As is clear from its terms, this particular is concerned with a number of specific issues. Dr Christie was asked in that context (Exhibit HCCC1, Tab 15, p 14, question 6): "With reference to Dr Alexakis' evidence at the section 150 proceedings on 24 November 2017 that [Person C], lawyer, managed his father's Will, please provide your opinion in relation to the appropriateness or otherwise of Dr Alexakis' conduct in introducing [Patient B] to [Person C]. In your response, please address whether there was any conflict of interest for Dr Alexakis in this regard." 1. Dr Christie's opinion was that: "It was entirely inappropriate for Dr Alexakis to introduce [Patient B] to [Person C] for the purpose of updating his legal affairs and rewriting his Will. There is a clear potential conflict of interest in providing this introduction, and (in the eventuality that Dr Alexakis was named as a beneficiary of the Will) a clear conflict of interest in doing so. There was no particular urgency for the Will to be updated. The request for a solicitor could have been referred by Dr Alexakis to the treating team during his regular telephone and text contact (as had been the request for a neuropsychiatric assessment), and in the event that Dr Alexakis felt there was an urgency which was not being addressed, he could have arranged for a solicitor from the office of the Trustee and Guardian to attend [Patient B] whilst an inpatient at RPAH." 1. Dr Christie was accordingly of the opinion that the Practitioner's behaviour fell substantially below the level required of him. 2. In support of this particular, the Commission submitted (at par 45) that the evidence of Mr Myhill (Exhibit HCCC1, Tab 10), the notes taken by social workers at RPA, and Dr Christie's oral evidence demonstrated that "health practitioners, particularly in the field of palliative care, may be asked by patients for assistance in finding a solicitor to make a new Will", and that the "usual expectation is that health practitioners and related professionals do not recommend a solicitor to a patient who wishes to make a Will". As the expression "usual expectation" implies, depending on the circumstances, although unusual, a health professional may permissibly do so. 3. The Commission submitted (at par 45) that the Practitioner's conduct risked a patient, and particularly a patient in Patient B's "specific circumstances", interpreting a single recommendation of a solicitor as implying that the patient must have a "special relationship with my doctor for him to recommend his own solicitor to me", that the doctor's recommendation implies that the solicitor "must be a good solicitor" even if the patient develops doubts about the solicitor acting in the patient's best interests, and that the doctor having recommended a solicitor to make a new Will "I must reward my doctor when I make my Will". We agree that a "recommendation" implies that a solicitor must be a "good solicitor", but observe that the evidence does not establish that the Practitioner did more than introduce Patient B to a solicitor. Doing so could reasonably be interpreted as implying that the Practitioner thought that Person C was a good solicitor, as could the fact that he had done legal work for the Practitioner's family. 4. It was submitted (at 46), correctly, that it was the role and responsibility of a medical practitioner to "protect against a patient developing these thoughts, which are inconsistent with the doctor-patient relationship in which appropriate professional boundaries are maintained". It was thus submitted (at par 47) that the Practitioner having been "actively involved in assisting the patient to execute a new Will, drawn up by the doctor's own solicitor, the conflict, and unsatisfactory professional conduct, is patent". Although the Practitioner may have been "actively involved in assisting the patient" to obtain a solicitor, the evidence does not establish that he assisted in the preparation or execution of any Will. 5. The Practitioner disputed (at par 142 of his submissions) that he had assisted Patient B to execute a new Will drawn up by his own solicitor. There is no evidence that the Practitioner and Person C were "socially or financially connected". There is no doubt that the Practitioner introduced his own solicitor to Patient B. There is force in the submissions of the Commission that Patient B may have "read into" that introduction a number of the inferences asserted by the Commission. The Commission bears the onus of establishing that those inferences influenced Patient B to benefit the Practitioner in his Will(s) in ways in which he otherwise would not have. 6. It is correct to submit, as the Practitioner did, that there is no evidence that he ever had an actual conflict of interest as a result of his introduction of Person C to Patient B. That, however, is not determinative of this particular which asserts "potential for a conflict of interest" rather than an actual conflict of interest arising from the referral of the Practitioner's own solicitor to Patient B, and the circumstances in which it occurred. 7. Given that there is no evidence that Person C did anything which was not appropriate for the purpose of advising Patient B and preparing his Will, or failed to do anything which a prudent solicitor should have done, it is accurate to suggest that the Practitioner did no more than introduce a solicitor to Patient B. The Practitioner submitted (at par 142), in reliance upon the evidence with respect to the character of Patient B which was asserted to demonstrate that he was "his own man", that, after the introduction, Patient B "took charge". 8. As the terms of the first limb of this particular make clear, the issue is whether there was a potential conflict of interest because Person C had "assisted the Practitioner's father with his Will". As the evidence relied upon, and the Commission's submissions also make clear, the particular is more broadly based. It is difficult to suggest how, having regard to the evidence of Person C, which was either unchallenged or not successfully challenged, there was a realistic potential conflict of interest in Person C preparing Patient B's Will, provided that he took the steps which the authorities to which we referred have long recognised. The evidence of Person C comfortably establishes that what he did in connection with Patient B's June 2017 Will was consistent with the authorities or, at the very least, not inconsistent with what the authorities establish that he should have done prior to the execution of Patient B's Will. 9. The issue is ultimately, as will be seen, whether the fact that Person C was the solicitor for the Practitioner and his family, without more, gave rise to a potential conflict of interest. In determining this particular, the Tribunal is vigilant to avoid the temptation to find that, because the Practitioner benefitted from Patient B's June 2017 Will, there must have been a potential for him to have a conflict of interest at the time he introduced Patient B to Person C. The particular succeeds or fails on the evidence of the circumstances at that time. 10. The Practitioner relied (at par 143) on evidence that he had told Patient B the names of other solicitors well prior to his second RPA admission on 29 May 2017. The Practitioner was closely cross-examined in relation to that claim, and with respect to the events leading up to his introduction of Person C to Patient B (Tcpt, 21 July 2022, p 76ff). The Practitioner said that Patient B discussed with him "requesting legal advice" on 29 May and said "that he needed to get his affairs in order". Patient B was also alleged to have said that "he needed to address concerns about his company and - his companies, and to review his Will" (Tcpt, 21 July 2022, p 75 lines 40-45). During cross-examination of the Practitioner, the following exchange took place: "Q. Did he ask you for the name of a solicitor? A. He did. Q. You say that on the previous occasion in late 2016, when he'd raised this, that was the previous occasion you discussed solicitors with him is that right? A. Yes. Q. And you'd given him several names of solicitors in the local area? A. Yes, sorry. Q. I asked you whether you'd given him the name of [Person C], and you said no. A. That's right. Q. Yet on this occasion, you offered him [Person C]. Is that right? A. Yes. Q. You didn't offer him the names of the solicitors from Strathfield that you'd offered previously? A. Well, he wasn't in Strathfield at the time. And he asked for someone to come to the hospital. I said to him that I wasn't quite sure if solicitors are allowed to go to a hospital to see a patient. I'm not sure, this is totally new to me. I said to him, look, how about the, the public trustee? We've spoken about them. He goes, no, I don't want them. And, I said - then I said to him, well, I've given you the names of previous solicitors. What happened there? He said that he hadn't followed it up. And then he said that, he needed someone now, because he feared that his condition would diminish with time, and that he wanted to get his affairs in order. Q. Why didn't you refer him to his treating practitioners or the social worker at the hospital? A. I don't think he was in any state to be doing too much negotiating with RPA. I'm not sure. I don't know. Q. You don't know why you didn't say. A. Not that I don't know. I - on gauging his response, and his mistrust or miscommunication, I'm not sure lack of communication with the team. He did not want that. Q. He did not want to be referred to them for assistance with legal advice? A. Well— Q. He didn't say that to you directly, did he? A. No, he didn't. But, you know, the team was there. He could have asked them. Q. You don't know whether he'd asked them or not. Do you? A. I did read some of the notes and they - he had been approached a number of times by social work to look at all these aspects. And he said he didn't need any help. Q. When you say you read some of the notes - A. Like - in like, post event." 1. The Practitioner was asked (Tcpt, 21 July 2022, p 78) about the names of solicitors he had previously mentioned to Patient B, in addition to the Public Trustee. The Practitioner referred to the conversation with Patient B in which the latter asked about his connection with Person C, and the work which Person C had done for the Practitioner. The Practitioner confirmed (Tcpt, p 79 lines 3-5) that, in the course of Patient B's earlier request for the name of a solicitor, he did not propose Person C to Patient B, although he had been the Practitioner's solicitor "for some years". 2. The Practitioner was asked (Tcpt, 21 July 2022, p 79 lines 7-8) "Why was it that you proposed his name to [Patient B] when you were seeing him in hospital?". The Practitioner replied (p 79 lines 9-20): "Because [Patient B] specifically told me, or asked me if I - because I offered, I said, look, "I know lots of solicitors". He says, "What do they do". I said, look, there's only one solicitor that I actually use out of my friends", and he's not my friend. He's a solicitor that I use in my practi[c]e. He wanted to ensure that I had a professional relationship with that person. And I couldn't say that I had a professional relationship with the - with a lot of them, like in my head. I've had dealings with the Public Trustee, which I find are quite good. They do the job. And then he said that he'd had dealings with the Public Trustee and he wasn't that impressed. So that really shut the door there. But he insisted that I knew this person, that I could vouch for their professionalism." 1. The Practitioner agreed that it was not "part of your job as a general practitioner" to tell Patient B the name of his personal solicitor but that he had done so in response to Patient B's request. 2. Under the heading "Dr Alexakis did nothing wrong in referring [Patient B] to [Person C]", the Practitioner relied (at par 44) on Patient B's history of asking for recommendations as to solicitors to deal with his Wills, and to Patient B having told Dr D that "he wanted to change his Will" from June 2015 (at par 45), which Dr D confirmed in oral evidence that Patient B had. 3. It was submitted (at par 48), accurately on the evidence, that Patient B wanted a referral to a solicitor who was "known and trusted" at a time when he had "no current solicitor", and that he wished the referral to come from "a person he trusted". The Practitioner relied (at par 49) upon Dr Christie's statement in cross-examination that "a patient should be allowed to express his or her wishes". It was further submitted (at par 51), accurately, that the Practitioner did not "unilaterally volunteer" to refer Patient B to a solicitor, or "make uninvited suggestions about Patient B's Will, or offer to provide a solicitor to make those changes". The Practitioner's previous suggestion of the Public Trustee and local solicitors, which Patient B had declined, was also relied upon in this context. 4. The Practitioner relied on the evidence of Mr Myhill (Tcpt, 14 July 2022, p 55 lines 24-34) that it was "not uncommon" for him to be asked by patients for the names of solicitors or the names of people who could give legal assistance, although when such requests were made of him Mr Myhill gave the patient "details of the solicitor referral service, so not specific names of solicitors" as far as he could recall (submitted at par 52). 5. The Practitioner submitted (at par 54), again in reliance upon the evidence of Mr Myhill (at par 53) that Patient B "wasn't going to be rushed about anything". Mr Myhill was asked (Tcpt, 14 July 2022, p 66 lines 19-27): "Q. You also, I gather, on at least one occasion, maybe more, that you provided [Patient B] with the details of the solicitor referral service and he thanked you for that and I gather you had the impression he would deal with it if and when he wanted to. At that time, and also when he sent the solicitor away, did you feel that at that time he was still capable of making rational decisions about what he was doing? A. Yeah, I thought he still had the capacity to make those decisions. It may have been frustrating, but I think it was still in keeping with his personality and who he was." 1. The Practitioner submitted (at par 57) that Dr Christie's criticism of the Practitioner should not be accepted. Dr Christie's reasoning was submitted to be "inflexible and is not the way people relate with each other". In support of that contention, the Practitioner relied upon the following evidence of Dr Christie in cross-examination (Tcpt, p 11 line 49 - p 12 line 25): "Q. Do you say if a general practitioner refers a specialised surgeon or gives the recommendation or reference to the patient of a specialised surgeon, the general practitioner has to disclose if he went to school, if he went to university, if he is in a club, if he goes sailing, if he socialises with that surgeon? A. If there is some form of connection with the surgeon that the GP has you would expect that to be disclosed." 1. Significantly, there is no suggestion that any relevant "form of connection" between the Practitioner and Person C was not disclosed by the Practitioner prior to the introduction of Person C. Dr Christie's evidence continued: "Q. Regardless of the fact that the recommendation is about the competence and trustworthy of the surgeon to do the job of a surgeon? A. Yes, if there is a connection between people that may impact upon the reason for your referral you need to provide that information. Q. You provide that information so the patient can make an informed consent, correct? A. Yes. Q. In this case, if the evidence is that Dr Alexakis told the patient that he knows the solicitor he is recommending, and that that solicitor does work for the doctor, and for the doctor's family, but there is otherwise no social relationship, that provides the patient with all the information the patient needs to make that informed consent, correct? A. As long as the patient has retained that information, correct. Q. As long as the patient is capable of exercising his judgement freely in taking the next step, that next step is choosing the solicitor to do a task, correct? A. Correct." 1. The Practitioner also relied on the following evidence in cross-examination of Dr Christie (Tcpt, 19 July 2022, p 321 lines 20-49): "Q. If the patient subsequently told, or if the patient told Dr Breen that he was under no pressure to change his Will and that nobody had asked him to change his Will, the prima facie assumption is the patient is telling the truth. Correct? A. Correct. Q. Would you agree with the general proposition, from your experience, that if someone asked a general practitioner for a referral to a specialist, the general practitioner is expected to use that general practitioner's skill to refer the patient to a qualified experienced and competent specialist? A. Yes. Q. Anything else would be bizarre, wouldn't it? A. Yes. Q. And in the context of such a referral, you would expect the general practitioner to refer the patient to somebody the general practitioner trusts to do a competent job in the circumstances. Correct? A. Of their medical care, yes. Q. And once the referral is made, it's up to the patient to see whether the patient/specialist relationship works, or can progress. Correct? A. That is the - patients have the option - people have the option of not returning to a specialist they don't want to see, yes. Q. Simply put, they may not hit it off? A. Yes. Q. And there can be no criticism of either of the patient or the specialist. Correct? A. Yes." 1. The Practitioner submitted (at par 59) that Dr Christie had agreed that when seeking a professional, such as a solicitor, a veterinary surgeon or accountant "he sometimes accepts recommendations from other people, because such recommendations are implicitly endorsed". Dr Christie was submitted to have agreed (Tcpt, 19 July 2022, p 323 lines 7-26) that before engaging a professional, he would check that person's competence, and that that was what Patient B did. 2. On the evidence before the Tribunal, which is necessarily limited having regard to the issues requiring determination, there is no basis for finding either that Person C was other than competent to do the work for which Patient B engaged him, or that Patient B did not satisfy himself, and have the capacity to do so, that Person C was competent. The evidence does not reveal anything known or suspected by Patient B which would have caused him to think that Person C might not make the Will which he wanted, or try to subtly influence him to benefit the Practitioner in any such Will. Nor does it reveal anything which Patient B did not know about Person C or his relationship with the Practitioner which could reasonably have caused him to have such thoughts. 3. The Practitioner placed considerable reliance on the following evidence of Dr Christie (Tcpt, 19 July 2022, p 344 line 1 - p 345 line 37): "Q. … If [Patient B] asks Dr Alexakis to recommend, or give him the name of a solicitor, it's up to Dr Alexakis whether he responds. Correct? A. Correct. Q. And how he responds, correct? A. Correct. Q. If months earlier, Dr Alexakis had offered the name of the public trustee or the New South Wales trustee and guardian, then that was something that you suggested was entirely proper. Correct? A. Correct. Q. For whatever reason, if [Patient B] says I'm not interested in the public trustee give me another name, that's a matter for [Patient B], correct? A. Yes. Q. If Dr Alexakis recommends a solicitor that he knows, and trusts, and has confidence in, and has used. Are you saying that is an improper recommendation? A. Yes. If it comes in isolation. And, the other question that I have around it is that, in relation if we go back to the doctor-patient relationship, and we are talking about the conduct of a doctor in recommending something, there is a requirement for us to, you know, if we equate it with medical treatment, there is a requirement for us to provide adequate information for the patient to legitimately consent or refuse consent for the treatment provided. So, we have an obligation to disclose any information we have. There are now also obligations on doctors to financially disclose if they are making recommendations for patients seeking treatment in the private sector. Around how much it may cost, what the operation or what the service will cost them prior to them consenting to the procedure. In this instance, my concern is that one name has been put forward, and I don't have any clarity around the extent to which the nature of that relationship was explained to [Patient B], and for that reason, it's an inappropriate thing to do. What would be appropriate in that circumstance would be to offer the names of a number of solicitors who could provide a similar service, and get [Patient B] to choose. If Dr Alexakis has been working in the same practice since 1991. It strikes me that he would know more than one solicitor in the area. There is an opportunity there to provide the name of more than one person. Q. But he is giving the name of a solicitor who he knows, and who he has confidence in as being able to do a competent job for [Patient B]. There's nothing wrong with that, now is there? A. No, the issue is around the potential for - to be seen to be guiding someone in a certain direction. Q. If [Patient B] demonstrated that he was able to use the vernacular to size up any particular solicitor who he got around to meeting, that would be a good thing to prove the bona fides of the recommendation, correct? A. Correct. Q. If [Patient B] as we know, about a year earlier had made a Will with a completely different solicitor, and then about a month later wrote to the solicitor saying, "I don't want you to have anything more to do with my Will", that would indicate, at least a year earlier, that [Patient B] was very much his own man. Correct? A. Correct. … Q. When for whatever reason [Patient B] met [Person C], who is the one introduced, he would have had, if he was capable, the opportunity to size up that solicitor. Correct? A. Within the context of the situation that he is in an acute hospital acutely unwell and under treatment – Q. But with testamentary capacity having been assessed positively. A. Yes. Q. You don't ignore that, do you? A. I don't ignore that, but none of these matters are black and white. There is the extent to which - the question is the extent to which [Patient B] was functioning in his usual form and the extent to which he was able to make decisions, even if he has been tested and shown to have testamentary capacity. Q. If his usual form is a cantankerous old lonely man who didn't think much of the medical profession, and his usual form was to think about decisions, financial and will decisions, then what [Patient B] did was perfectly consistent with his form, wasn't it? A. In broad terms, yes." 1. Under the heading "Dr Alexakis was never told he was a beneficiary of [Patient B's] Will", and by reference to passages in his cross-examination, the Practitioner submitted (at pars 68-72) that he did not know until after Patient B's death that he had been included in any Will made by Patient B, or that Patient B had ever said anything to him which caused him to imagine that he might have been included in any Will. No evidence before the Tribunal provides a rational basis for rejecting the Practitioner's evidence about those matters. 2. In submissions in reply, the Commission reiterated (at par 36) that the Practitioner's involvement in the introduction of Person C to Patient B was far greater than to simply "introduce a solicitor". It was submitted that the Practitioner "had actively engaged in preparing [Patient B] for the consultation by procuring a neuropsychological assessment, liaised with [Person C] on more than one occasion to arrange the visit, was collected by [Person C] and drove with him to the hospital and personally introduced [Person C] to [Patient B]". This was submitted to be "no mere introduction". 3. There was submitted to have been a "financial connection" between the Practitioner and Person C, which is not in dispute, which the Practitioner had made known to Patient B prior to introducing Person C to him. With respect to the Commission, beyond being paid for legal work done for the Practitioner or his family, as presumably he was, there is no evidence of any relevant financial connection between the Practitioner and Person C, or how any such connection advances this particular. Consideration 1. Dr Christie's suggestion that this issue is not "black and white" was appropriate. There is no doubt that the Practitioner arranged for Person C to attend upon Patient B, potentially for the purpose of preparing a Will for Patient B. The Practitioner did facilitate Patient B having a capacity assessment for the purposes of preparing a Will. The evidence does not establish that his doing so was for the purpose of preparing Patient B to make a Will in which the Practitioner hoped that he would be named as a beneficiary. If that had been the Practitioner's intention, a capacity assessment of Patient B would have been counter-intuitive – Patient B may have been found to lack testamentary capacity. If, as transpired, Patient B was found to have capacity, the potential for his testamentary intentions to be unconscionably influenced was likely to be diminished. 2. In theory, there was the potential for the Practitioner having a conflict of interest by reason of Person C having done legal work for the Practitioner and other members of his family. The evidence does not reveal that that legal work had any actual or potential connection with any legal affairs of Patient B. Save with respect to the Practitioner subsequently becoming a beneficiary of Patient B's Will, which he did, which gives rise to other particulars with which the Tribunal will engage, there is no identification of the potential for a conflict of interest between the Practitioner and Patient B at the time and in the circumstances in which Patient B was introduced to Person C. Patient B may have declined to retain Person C. After conferring with Patient B, Person C may have declined to accept his instructions. The Practitioner had no control over either of those matters. We are not comfortably satisfied that the Practitioner's potential conflict of interest at the time he introduced Person C to Patient B was sufficiently likely to support the finding sought by the Commission. In our view, the potential conflict was no more than a "remote possibility". In these proceedings, it needed to be probable: Tillmans Butcheries Pty Ltd v Australasian Meat Industry Employees' Union (1979) 42 FLR 331; [1979] FCA 132. 3. The evidence of the Practitioner with respect to suggesting the names of private solicitors and of the Public Trustee, and Patient B's response to it, cannot be rationally rejected. Nor can the evidence of prior requests for the name of a solicitor made by Patient B of the Practitioner in 2016, and to Dr D in 2015. The evidence of Mr Myhill suggests that, in the situation in which the Practitioner found himself, particularly having regard to the questions which Patient B asked him, and the circumstances in which he did, although not "usual" the Practitioner's response was not so unusual as to advance this particular. It is not insignificant that each of the courses which Dr Christie suggested that the Practitioner should have pursued either was, or had previously been pursued by the Practitioner. Short of simply refusing to assist Patient B, it is difficult to suggest what more the Practitioner could have done, or have done differently. 4. Further support for the course adopted by the Practitioner is gained from the undisputed evidence with respect to Patient B's personality, absence of persons who he trusted, lack of enthusiasm for the medical profession and hospitals, and, to the minimal extent that the evidence reveals it, his apparent commercial experience, or at least an absence of evidence of commercial naivety or vulnerability. 5. It is important in evaluating this Complaint to have regard to the role which a competent and prudent solicitor should have pursued in the circumstances in which Person C came to meet Patient B, and the evidence with respect to what Person C did in that context. Nothing to which the Tribunal has been referred suggests that Person C did anything, or failed to do anything which a prudent solicitor would have done, or not done. The solicitor's contemporaneous file notes, which were sensibly not challenged, clearly record the matters which he discussed with Patient B prior to the preparation of his Will and subsequently upon the execution of the Will in the presence of the solicitor and a member of his staff. 6. Absent evidence that Person C would fail to discharge his obligations to his client, Patient B, and that the Practitioner knew, or ought to have known, or hoped that Person C would, or was likely to, fail to do his duty to the client, it is difficult to see how any theoretical possibility of a potential conflict of interest could have materialised as a result of the Practitioner introducing Person C to Patient B. Nothing raised in cross-examination of either the Practitioner or Person C suggested that either intended, or anticipated that, because of any prior involvement with his family, the Practitioner was likely to benefit if Person C prepared Patient B's Will. 7. As the cross-examination of Dr Christie in particular confirmed, the issue of a recommendation of a professional person by another professional person, whether members of the same or different professions, is less than clear or straightforward, and is potentially problematic, and depends upon the express or implied tems of the recommendation, and the circumstances in which it occurs. 8. The Commission must comfortably satisfy the Tribunal that each of the allegations relied upon in support of this particular is made out. We are not comfortably satisfied that, in the circumstances as the evidence reveals them, the Practitioner ought to have done more than he did with respect to either of the referrals asserted in particular 2(b). The evidence establishes that a referral to the NSW Trustee and Guardian would have been unlikely to have been accepted by Patient B. If Patient B's treating health practitioners adopted the approach which Dr Christie's evidence suggests would have been appropriate had Patient B's request been referred to them, that would, on the evidence in this case, have been unlikely to have resulted in Patient B seeing a solicitor to regularise his affairs and/or make a new Will, both of which matters the evidence comfortably established were his wishes, for reasons which were understandable. 9. If we are wrong, and the conduct of the Practitioner in introducing Person C to Patient B did fall below the standard reasonably expected of him, we are not comfortably satisfied that it fell significantly below that standard. As the evidence of all the medical witnesses with respect to this topic makes clear, this is a difficult issue, with no "black and white" written rules or guidelines, which is very much dependent on a consideration of all the circumstances of the particular case. As a matter of practical reality, and as the cross-examination, particularly of Dr Christie, revealed, one of the reasons why patients ask professionals for referrals to medical and other trades or professional people is because of the trust and confidence they have in those professionals to make referrals or recommendations which they believe will be in the best interests of the patient. Although perhaps unusual, the evidence does not establish that, in all the circumstances, the conduct of the Practitioner was such a departure from the usual or expected conduct as to establish this particular to the comfortable satisfaction of the Tribunal. Particular 3 of Complaint 3 1. Particular 3 alleged that: "Towards the end of Patient B's second RPA admission the practitioner failed to observe proper professional boundaries with RPA and Concord Hospital staff in that: (a) he frequently telephoned [Dr E] about Patient B's health; (b) on or around 14 June 2017 he telephoned [Dr E] and advocated that Patient B return home on gate leave for the purpose of arranging his finances; (c) on or around 21 June 2017 he telephoned [Dr E] and stated that: (i) she was taking too long to arrange Patient B's discharge; (ii) Patient B ought to have 24 hour nursing care at home by staff from Concord Hospital; (d) on or around 18 June 2017 he telephoned [Dr D] on at least two occasions and requested that Patient B be transferred from RPA to Concord Hospital under her care; (e) on or around 22 June [2017] the Practitioner sent two text messages to [Dr E] regarding Patient B." 1. The Practitioner did not deny the substance of the conversations relied upon in support of this particular, or the dates on which those conversations occurred, but vigorously denied that his conduct amounted to unsatisfactory professional conduct. The evidence of fact relating to this particular is that of Doctors D and E. The expert evidence is that of Dr Christie. 2. The submissions of the parties identify, and engage with, the evidence by reference to which this particular falls to be determined. 3. The Commission relied (at par 48) on the evidence of Dr Christie who said (at Exhibit HCCC1, Tab 13 p 13) that: "Good communication between the GP and inpatient treating team is essential to the smooth transition from hospital-based to home-based care. I note that communication between Dr Alexakis and the hospital team was initiated both by Dr Alexakis and by members of the hospital treating team. The extent of Dr Alexakis's communication through numerous telephone calls and text messages is (in my view) well in excess of the communication required to facilitate appropriate care and handover. The communication as described was intrusive, inappropriate and occasionally aggressive or hostile. Given Dr Alexakis's overall patient load, this level of communication is surprising and cannot be justified under 'usual' or 'appropriate' clinical practice or patient advocacy. It should also be noted that in his statements to the s 150 investigation, Dr Alexakis described his 'friendship' with [Patient B] as developing 'after this time'." 1. Dr Christie also said that the Practitioner's conduct "in making telephone calls to [Dr D], who was not the current treating doctor, and who is not a palliative care specialist, at a time when [Patient B] is being managed for a palliative medical concern by a specialist palliative medical service is inappropriate. The request for transfer to Concord Hospital is also inappropriate, as affective arrangements for the discharge support were being developed at RPAH by the palliative care service managing the patient." In the circumstances described by him, Dr Christie considered that the Practitioner's contact with each of the medical practitioners referred to in this particular fell "substantially below that required of him". It is not in issue that the use of "substantially" by Dr Christie in his evidence is intended to be synonymous with "significantly". 2. The Commission submitted (at par 49) that Dr E's notes of the conversation with the Practitioner on 14 June 2017 demonstrated the "disconnect between [Patient B's] condition – which was inconsistent with him leaving the hospital – and the matters advocated for [by] the Respondent such as gate leave", and that his communication reflected a "failure on the Respondent's part to accord proper respect to the primacy of the treating team in making appropriate decisions based on the information that [Patient B] himself was telling them." The "disconnect" was submitted to have been even greater when the Practitioner "advocated for [Patient B] to be moved to Concord Hospital, and [Patient B] himself, when asked, brushed aside the suggestion" (Exhibit HCCC1, Tab 9, Annexure 1 to statement of Dr D). 3. The Commission submitted (at par 50) with respect to the Practitioner's contact with Dr D that the approach "with a view to having [Patient B] moved from RPA to Concord Hospital" was particularly inappropriate in circumstances where Patient B himself rejected that course when it was suggested to him. Reliance was placed upon the fact that Dr D was not part of Patient B's treating team during Patient B's second RPA admission. Whether, as the Commission submitted, the Practitioner was attempting to "inveigle" Dr D to advocate on Patient B's behalf is not a matter about which we need make a finding, or further speculate. 4. Reliance was placed upon the fact that Dr D, who was cross-examined before the Tribunal and impressed as an honest and dispassionate medical practitioner, was moved to block the Practitioner's calls in response to his texting her twice on 18 June 2017 (Exhibit HCCC1, Tab 9A, p 82). We agree that, whatever the Practitioner's motivation, Dr D's actions in blocking his calls to her, particularly having regard to her prior history of correspondence with the Practitioner with respect to the care of Patient B, and the absence of any suggested reasons for doing so, provides material support for the Commission's case. 5. It was further submitted (at par 52) that, during Patient B's second RPA admission, the Practitioner had a "limited role" and that "[a]ny interaction with [Patient B's] treating team should have been from the perspective as a support in anticipation of [Patient B's] discharge which was a matter strictly within the ambit of the hospital treating team to manage". 6. It was also submitted that the Practitioner's advocacy for Patient B involved "stepping away" from his role as a GP, which constituted a significant departure from appropriate professional standards. 7. The Practitioner's conduct was submitted (at par 53) to be in breach of clause 4.2 of the Code of Conduct – Good Medical Practice (Code of Conduct) in relation to respect for medical colleagues and other health care professionals (found at Exhibit HCCC2, Tab 1). Clause 4.2 of the Code of Conduct is headed "Respect for medical colleagues and other health care professionals" and provides that: "Good patient care is enhanced when there is mutual respect and clear communication between all health care professionals involved in the care of the patient. Good medical practice involves: 4.2.1 Communicating clearly, effectively, respectfully and promptly with other doctors and health care professionals caring for the patient. 4.2.2 Acknowledging and respecting the contribution of all health care professionals involved in the care of the patient." 1. The Practitioner submitted (at par 146), accurately, that there was "an accepted role for advocacy by a GP for his or her patient". The Practitioner further submitted (at par 147) that to be particularly the case when on 13 June 2017 there was a "Code Black". In the evening, the Practitioner was submitted (at par 148) to have been "polite and respectful in his exchange with [Dr E] to discuss the matter raised with [Patient B]." The Practitioner was submitted to not have been "aggressive", and to have sent text messages to Dr E which reflected the tone and content of their telephone conversations. 2. The Practitioner relied upon the following passage from the evidence of Dr Christie in cross-examination (Tcpt, 19 July 2022, p 327 line 8 - p 328 line 14): "Q. Would you agree that there was nothing wrong with family and friends advocating on behalf of a patient? A. That's correct. Q. I use the word "advocating" specifically in the context that "well, all views within reason are ultimately considered in coming to decisions". Correct? A. Family and friends may offer a perspective that isn't otherwise obvious, yes. Q. And that perspective can be taken into account even if it is ultimately not followed up, or not accepted, as part of the ongoing treatment? A. Yes. Q. There's nothing wrong, in the same context, with a general practitioner - especially one who has known the patient for some years - there's nothing wrong [with] the general practitioner advocating on behalf of a patient. Correct? A. It depends to what extent we're talking about advocating and what we're advocating about. Q. Yes, but in principle? A. In principle, GP - general practice involves a degree of advocacy, yes. Q. And the degree of advocacy will very much depend on the circumstances of the patient? A. It will depend on the patient's ability to advocate for themselves. Q. And it's just another view in the matrix of opinions, isn't it? A. Again, to tease that apart, in relation to medical matters, a qualified and experienced doctor's view around medical management is not just another view in the matrix. In relation to matters outside of medicine, it is another opinion. Q. But in the context of medical matters, it can be quite important to at least know what the general practitioner is thinking or saying or advocating? A. Yes, and the reasons for doing so. It's not so much about the general practitioner's opinion. It's more about getting a clear understanding of the medicine, what it offers and what it doesn't offer. Q. And that includes the history - the long term history - not just the hospital history. Correct? A. That's correct." 1. The Practitioner submitted (at par 151), correctly in our view, that Dr D accepted that a GP has a "proper role as an advocate" for a patient. The transcript passage relied upon by the Practitioner in support of that submission amply does so (Tcpt, 18 July 2022, p 269 line 20 – p 273 line 33). 2. Similarly, the submissions of the Practitioner (at pars 152-153) in reliance upon the evidence of Dr Fernandes have substance. As a reading of the passages of the transcript to which the Practitioner referred confirms, each of Drs D and Fernandes were speaking in general terms. They do not materially assist the Practitioner's case. The issue for determination is whether we are comfortably satisfied that the communications relied upon in support of this particular fell significantly below the standard of communication required of the Practitioner. 3. The Practitioner relied (at par 154) upon the following passage of evidence given by him in cross-examination (Tcpt, 22 July 2022, p 15 line 48 - p 17 line 28): "Q. But what you did, Dr Alexakis, was – you were his advocate, his conduit, I would say, in what he wanted to the team that's correct, isn't it? A. To get information from the team, yes. And also to – to communicate with the team. Q. But you didn't communicate as a fellow health practitioner and say, "This patient is saying that there is no communication from the team. What's going on? Is there an issue here?" A. I think [Patient B] was – was asking the team. I – I don't know. I wasn't in – in the hospital to – to – to look at the interaction between [Patient B] and the team. I was only getting [Patient B's version of events. Now, I do not doubt that RPA, the team were doing the right think. I mean, they're – it's an excellent hospital. And I don't doubt that there was a – a – a communication between [Patient B] and the team. But … Q. You don't doubt that they were doing the right thing, and you don't doubt that there was actually communication from the team to [Patient B]. A. Mm. Q. On what basis did you then become a conduit between [Patient B] and the treating practitioners? A. When the – when the patient asked me to communicate with the team. Q. You don't always do everything a patient asks you to do, do you, Dr Alexakis? A. That's correct. Q. And in this case, you were setting yourself up to be an advocate for the patient in circumstances where you had no treating rights. That's right, isn't it? A. I was communicating with the team to address concerns of the patient that he felt weren't being adequately addressed by the team. In the back of my mind was also the – the undercurrent of, well, if I don't – if they're not doing anything, they're not communicating with me, I'm going to leave. So in order to satisfy [Patient B's] thirst for information, and to try and get him to engage more – I mean, communication's a two way street – I encouraged him to talk more with his team … Q. Dr Alexakis … A. … and to engage with the team. Q. I'll come back to it. Dr Alexakis, why was it your problem if [Patient B] attempted to abscond from the hospital? A. The simple fact that I'd have to be looking after him 24 hours later. Q. If he successfully absconded. A. Well, if he successfully absconded, yes. And if he unsuccessfully attempted to abscond and had a fall, or injured someone – a patient or a visitor or a staff member – in his efforts to try and abscond, then that would be of concern to me as well. Q. It might be of concern to you – but why was it your problem, sufficient that you felt the need to prevent it? A. Because, as past history would suggest, he was very adept at absconding from hospital, and he would have ended up at his home – and then he would have been my problem. And so I – I don't like to have problems. And I like to have support, and I like to have relatively fit people at home. And I like to have people who are not unwell enough – sorry that are so unwell that they need to be in hospital, but are actually at home. It makes it a very difficult situation for me, as a general practitioner. It's very time consuming, and, you know, I – I – I I really needed him to stay in hospital to get appropriate care, to get better so that he could be managed, in the long term, at home. Q. Is this the --- A. That's why it was my problem." 1. As is readily apparent, there is a material distinction between a patient's general practitioner providing, or attempting to provide information, solicited or unsolicited, to the patient's treating team about the patient's medical history and, in effect, trying to tell the patient's specialist treating team what to do. The Commission submitted that the Practitioner's conduct fell within the latter category. The Practitioner submitted that it did not extend beyond the former category. 2. In reply, the Commission submitted (at par 37) that, although there were roles for a GP to advocate on behalf of a patient, none of the Practitioner's actions "fell within the boundaries of such a role". It was submitted that: "(a) at no time did Dr Christie accept that the Respondent validly engaged in the role of an advocate; (b) at no time did [Dr D] - whose cited evidence relates to [a] person who is not an inpatient - accept that the Respondent validly engaged in the role of an advocate; (c) at no time did Dr Fernandes - whose cited evidence relates to visiting generally - accept that the Respondent validly engaged in the role of an advocate." Consideration 1. As its terms make clear, this Complaint is reliant upon the Practitioner's communications with two other specialist medical practitioners, one of whom was part of Patient B's treating team at RPA, the other of whom was not, during Patient B's second RPA admission. 2. Dr E referred (Exhibit HCCC1, Tab 9, par 8) to a telephone conversation with the Practitioner on 9 June 2017 and did not suggest or imply that he had then said anything inappropriate. Dr E noted (at par 11) the conversation with the Practitioner on 14 June 2017 when he was "quite persuasive in advocating for [Patient B] to return home on gate leave". Given that the Practitioner was not involved in treating Patient B at that time, whilst he could properly have asked questions of Dr E about her view, or the view of Patient B's treating team with respect to his possible returning home on gate leave, it was inappropriate for him to be, or attempt to be "persuasive", in his advocacy for Patient B to the extent that he did. In our view, the Practitioner impermissibly crossed the line between legitimate advocacy on behalf of the patient, which may have been helpful, and advocacy which had no such potential, was contrary to the patient's wishes, and amounted to unhelpfully trying to tell Patient B's treating professionals what to do. 3. Dr E referred (at par 12) to a telephone conversation with Dr D on 19 June 2017. Dr D informed Dr E of the Practitioner's two telephone calls to her on 18 June 2017 during which he had "'suggested' to her that [Patient B] be transferred to Concord under her care because Concord Hospital was able to organise 'private services' for [Patient B]". As recorded by Dr E (at par 13), and is not in dispute, when asked, Patient B advised the RPA treating staff that "he could not see any benefit in being transferred to Concord Hospital and he was happy to remain at the RPAH". On what basis the Practitioner advocated as he did with respect to a move to Concord has not been suggested by the Practitioner. 4. Dr E referred (at par 14) to the Practitioner's telephone call to her on 21 June 2017, during which he "said assertively that I was taking too long in the discharge planning" for Patient B and "recommended that [Patient B] have 24 hour private nursing care at home which … could be arranged at Concord Hospital". Dr E referred (at par 15) to text messages to her mobile telephone. Dr E attached screenshots of those texts to her statement. The Practitioner's complaints to Dr E during their telephone conversation on 21 June 2017 were inappropriate, as he should have recognised, and fell below the requisite standard. Asking relevant questions was one thing, trying to tell Dr E what to do was another. The only issue with respect to this conversation is whether the conduct fell significantly below the requisite standard. 5. Although the Practitioner relied upon passages from the transcript of the cross-examination of Dr D and Dr Fernandes in his defence of this particular, we were not referred to anything emerging from the cross-examination of Dr E in that context. 6. In cross-examination (Tcpt, 12 July 2022, p 7 lines 40-48), Dr E accepted that there was "nothing exceptional in Dr Alexakis conveying to you what Dr Alexakis believed to be [Patient B's] views" and that the "decision making process so far as the treatment of any patient, including [Patient B] is the result of the exchange of various opinions amongst people who know something about [Patient B]". 7. As is apparent from Dr E's cross-examination, the Practitioner's communications with her can be seen as comprising a mixture of asking appropriate questions, relaying appropriate concerns, and going beyond those matters in assertively advocating matters "off his own bat", or making criticisms of the treating team's care of Patient B which the Practitioner had no right or qualifications to make. 8. Dr Christie's opinions in general were vigorously challenged by the Practitioner in the respects to which we have earlier referred. Dr Christie's evidence was the only expert opinion evidence before the Tribunal with respect to this issue. That does not mean that his opinion is necessarily entitled to be accepted. But it must be recognised that the utility of expert opinion evidence in this context is that it informs the Tribunal's evaluative decision by providing a "yardstick" by reference to which the extent to which the Practitioner's conduct satisfied, or failed to satisfy, the requisite standard may be assessed. There was, properly, no challenge to Dr Christie's evidence in this context, either on the basis of relevance or his qualifications to give expert opinion evidence, although the weight sought to be attached to it was challenged, primarily on the basis that Dr Christie's practical experience resulted in him assessing the conduct of the Practitioner by reference to an excessively high and onerous standard. The Tribunal is unable to accept that Dr Christie's training or experience did not qualify him to express the opinions which he did with respect to this issue, or that the opinions were not based on such experience or training: Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21. We accept the opinion of Dr Christie, and his reasons for it, that the conduct of the Practitioner with respect to the communications with Dr E relied upon in this particular fell significantly below the requisite standard. 9. It is necessary then to consider the Practitioner's telephone communications with Dr D. Dr D said (Exhibit HCCC1, Tab 9A, par 82) that: "On Sunday, 18 June 2017, Dr Alexakis called my mobile twice; once in the late afternoon and once in the evening. He left one voicemail message, during which he said: "I want to talk to you about [Patient B]. I think it would be better for him to move to Concord." Transferring [Patient B] to Concord appeared to be important to Dr Alexakis. I considered it inappropriate for Dr Alexakis to be calling me about this given that I was not the primary treating physician, and we had discussed the same issues on Friday [16 June 2017]. I also considered it inappropriate to be calling on a Sunday when [Patient B] was in a safe place. I did not return his call and after the second call, I blocked Dr Alexakis' number from my mobile." 1. Dr D referred to the substance of the telephone call to her from the Practitioner on 16 June 2017 (Exhibit HCCC1, Tab 9A, par 81) during which Dr D suggested to the Practitioner that the concern he raised "should be addressed with [Patient B's] current treating team at RPAH". 2. In cross-examination (Tcpt, 18 July 2022, p 268 line 15ff), Dr D was asked about the communications to which she referred in her statement. Nothing raised with Dr D in cross-examination suggested a rational basis for not accepting her view of the Practitioner's conduct in communicating with her as he did, and doing so in the terms in which he did. Essentially, for the reasons advanced by the Commission, we find that the Practitioner's conduct in communicating with Dr D in the terms and manner in which he did was inappropriate, however well intentioned those communications might have been. 3. The Practitioner's conduct fell below the requisite standard. The more vexed issue is whether the conduct fell significantly below the requisite standard. 4. Quite apart from the fact that he was not then part of Patient B's treating team, and lacked the expertise to criticise or challenge the opinions of expert practitioners who were, or had been, the Practitioner's conduct was professionally disrespectful. Our observations with respect to the evidence of Dr Christie in the context of the communications with Dr E are also relevant in this context. We are comfortably satisfied that the Practitioner's communications with Dr D fell significantly below the requisite standard. 5. As is apparent from our reasons, the Tribunal is satisfied that either of the matters relied upon in support of this particular is made out and constitutes unsatisfactory professional conduct. If we are wrong, and neither part of the particular would, in isolation, constitute unsatisfactory professional conduct, we are comfortably satisfied that, in conjunction, they do so. As is not in doubt, a finding of unsatisfactory professional conduct may be based upon one or more instances of inappropriate conduct. Particular 4 of Complaint 3 1. Particular 4 alleged that: "Between 25 June 2017 and 5 October 2017 the practitioner failed to observe proper professional boundaries in that he: (a) conducted almost daily home visits (approximately 92) to Patient B in circumstances where at most, weekly home visits were clinically indicated; (b) regularly attended to dressings for Patient B that ought to have been performed by community nurses." 1. Although he did not dispute the number of home visits which he made to Patient B during the period referred to in this particular, or that he regularly attended to dressings for Patient B as the particular alleged, the Practitioner disputed that his conduct involved an absence of clinical indication, or involved any failure to observe proper professional boundaries. 2. Sensibly in our view, the parties adopted a "global" approach to the determination of this particular. In our view, if the Commission established that, on an overall basis, the home visits lacked clinical indications, the Practitioner's conduct would be found to have fallen below the requisite standard. The Tribunal would then have to determine whether it fell significantly below that standard. 3. In support of this particular, the Commission submitted (at par 57) that the Tribunal should reject the Practitioner's evidence that home visits to Patient B were "clinically required" and thus justified. It was further submitted that, even if Patient B "demanded the home visits, this would not justify them as clinically necessary, including if one effect of the visits was to reassure [Patient B] about his BSL (blood sugar level), or to slightly lessen the duration of the period he spent alone, where even with the Respondent's visits [Patient B] spent extended periods in excess of 12 hours alone, and more on weekends". We agree that the determination of this limb of the particular involves an objective evaluation of the extent, if any, to which, considered globally, the home visits were not clinically indicated. 4. We accept that the patient's perception of the need for or purpose of home visits by the Practitioner has no bearing on determining whether such visits were clinically indicated, although, in a Stage 2 hearing such matters may assume some significance. The reasonableness of the Practitioner's views with respect to the issue are relevant to our determination of the particular. 5. The Commission submitted (at par 58) that, in the circumstances of the Practitioner's home visits to Patient B, Patient B would have "viewed himself as being the recipient of special attention". It was submitted that the Practitioner's visits to Patient B during the relevant period, and the circumstances in which they occurred, involved a failure to maintain an appropriate doctor-patient relationship. 6. The Commission made a number of submissions (at par 59) about the "level of care" to which patients are entitled and submitted that "[t]he perception of the Respondent providing excessive home services to [Patient B] - a man with no close family or friends who has just made two Wills through the doctor's own solicitor - undermines confidence in the profession, and underscores why the Code of Conduct requires doctors to take responsibility for managing professional boundaries with patients." It is to be remembered that the evidence does not establish that the Practitioner knew that Patient B had retained Person C to prepare a Will for him, or that he was a beneficiary of any Will of Patient B prior to the latter's death. 7. Dr Christie was asked to provide his opinion "in relation to the appropriateness or otherwise of Dr Alexakis' home consultations to [Patient B] from 26 June 2017 to 4 October 2017, given that [Patient B] was also receiving daily nursing care and Home Care services during that period". Dr Christie recorded (Exhibit HCCC1, Tab 13, p 13 par 9) that he could "see no clinical justification for the daily home-visiting provided to [Patient B] by Dr Alexakis between 26 June and 4 October. From Dr Alexakis' notes, I can identify likely clinical indications for visits to see [Patient B] on eight occasions, and given his deterioration over the period in question, a justification could possibly be made for a weekly home visit by the GP to monitor his situation, aside from the visiting providing by the Home Care services and other services throughout this time". 8. Dr Christie was accordingly of the view that the Practitioner's conduct fell significantly below the requisite standard. 9. The effect of Dr Christie's evidence, in substance, is that approximately 22 of the 92 home visits made by the Practitioner to Patient B between 26 June 2017 and 4 October 2017, approximately one per week, could have been clinically justified or indicated. 10. The Medicare records (Exhibit HCCC1, Tab 41, pp 2-3) record the Practitioner billing and being paid for 33 consultations with Patient B between 6 July 2017 and 4 October 2017 inclusive. 11. The Practitioner's clinical records with respect to Patient B (Exhibit HCCC1 Tab 32, p 233ff) include 11 entries: 27 June 2017, 4 July 2017, 5 July 2017, 15 July 2017, 14 August 2017, 1 September 2017, 12 September 2017, 13 September 2017, 18 September 2017, 27 September 2017, 29 September 2017. With the exception of the entry of 29 September 2017, these entries indicate that the Practitioner opened the Patient B's electronic medical record for the purpose of writing prescriptions, ordering investigations or writing referral letters. They do not reflect the content of an actual medical consultation with Patient B. The entry of 29 September 2017 appears to document a conversation between the Practitioner and a community nurse, "Debra". The entries on 14 August, 13 September, 18 September and 27 September coincide with the "date of service" in the Medicare claim with respect to Patient B. These dates coincide with home visits as documented in the hand-written notes (Exhibit HCCC1, Tab 32, pp 209-227) The Medicare data indicates that approximately one third of the home visits made by the Practitioner to Patient B during July, August and September 2017 were charged through Medicare when the Practitioner made the claims in January 2018, two months after the death of Patient B. As is not in doubt, Patient B often paid the Practitioner for consultations which were not the subject of Medicare claims. 12. As is readily apparent, the vast bulk of the 92 home visits undertaken by the Practitioner between 26 June and 4 October 2017 inclusive were not reflected in any entry in the Practitioner's clinical notes for Patient B held at Strathfield Family Medical Centre. If the visits were clinically indicated, they should have been recorded, in Patient B's interest, so that another practitioner could take over care if necessary. 13. In his statement (Exhibit R1, Tab 2), under the heading "Visiting [Patient B] at his home (25th of June 2017 - 5th of October 2017)", the Practitioner set out the reasons why he visited Patient B after he was discharged home following his second RPA admission. The Practitioner submitted (at par 130) that his "daily visits were clinically necessary to address [Patient B's] acute and chronic medical conditions", and set out a number of matters with respect to Patient B's personality and personal circumstances, most of which are not seriously in dispute. The more "acute and chronic" the Practitioner considered Patient B's medical conditions to be, the more significant the absence of clinical recording of them becomes. 14. The Practitioner referred to the domestic care provided by Person N (at par 136ff) and to her statement that she was not taking Patient B's blood sugar levels as it was not part of her "job", and was not "authorised to perform such tests". The Practitioner referred (at par 141) to the "gap of 19 hours" between the time Person N left and the time when she would return the following morning and the needs which that gave rise to in terms of Patient B's care, particularly on weekends when there was no cover resulting in a "gap of 67 hours care on each weekend". 15. Under the heading "What I did during my home visits to [Patient B]", the Practitioner set out (at pars 142-147) what he said he did during those visits. Under the heading "I was not [Patient B's] friend, I was his doctor" the Practitioner set out (at pars 148-151), with references to statements made by him during the s 150 proceedings, that, contrary to what he may have suggested in those proceedings, Patient B "was never a friend to me". 16. The Practitioner submitted (at pars 152-153) that he considered the 33 occasions on which he billed Medicare for consultations with Patient B to be appropriate and disputed that only approximately 18, or perhaps 22, weekly consultants were clinically indicated, or that long consultations were not justified on the basis of the level of clinical complexity. 17. The Practitioner tendered a transcript of other notes which he said he had made by hand after his visits to Patient B (Exhibit R4). In general terms, the entries are in the nature of clinical notes. In his supplementary statement (Exhibit R7), the Practitioner outlined in more detail Patient B's symptoms and what he did in relation to them. 18. Person N was interviewed by officers of the Commission (Exhibit HCCC1, Tab 10A). In the course of the interview, Person N explained the duties she performed for Patient B and the hours and frequency of her attendances at his home (p 7). Person N was asked "What type of medical services" the Practitioner was providing to Patient B when he attended his home. She replied (p 9), "Well, far as I know that he was checking his diabetes and making him something to eat and that's all I know". Person N confirmed that the Practitioner was "prescribing" medication for Patient B which she thought was for "antibiotics". Person N said (p 10) that "I only probably ran into him [the Practitioner] maybe once or twice" when she was at Patient B's home. 19. Person N, in response to a leading question (p 27) from an interviewer, said that she thought that Patient B "viewed the doctor coming" as "more of a friendship than medical". With respect to her, in the absence of her suggesting the basis for them, Person N's opinions in that regard are not probative of the issue which we must determine. 20. Person N did not appear to have been asked whether she ever took Patient B's blood sugar levels. It has not been established that doing so was part of her duties, or within her competence. In cross-examination (Tcpt, 18 July 2022, p 217), Person N confirmed that she had no "training in nursing" and that she gave Patient B "personal care and domestic services" the nature of which she explained, which did not involve anything which could be considered to be the provision of medical care. The particular does not allege that Person N had such qualifications or duties. 21. In her cross-examination, Person N referred (Tcpt, 18 July 2022, p 218) to a "lot of fluid coming out of [Patient B's] legs", and to "later on … [her] doing things like dressing [Patient B's] wounds" (p 219), which Person N clarified (at p 221) that she "didn't actually have training to do". Person N said (at p 223) that the Practitioner would check Patient B's sugar levels. Person N referred (at p 225) to "times" when she would call the Practitioner on behalf of Patient B "when he was sick" and times when Person N did that because she was worried about Patient B. 22. Person N was asked whether she had ever taken Patient B's blood sugar levels and reiterated that she was not authorised to and had no recollection of ever doing so. Person N confirmed (18 July 2022 transcript, p 235) that she had no training in "putting on dressings on [Patient B's] legs" and that, although she did the best she could because she wanted to help Patient B, there was "blood flowing out of his legs", "at times". 23. Person N's answers in response to questions about Patient B's symptoms (Tcpt, 18 July 2022, pp 236-237) make clear that, as was appropriate having regard to the nature of her employment, Person N had limited knowledge of and involvement in medical issues associated with Patient B's condition during the time when she attended his home. Although Person N repeatedly said that she did not know about aspects of the Practitioner's care of Patient B, nothing emerging from her cross-examination of Person N materially adversely impacts upon the evidence of the Practitioner with respect to this issue. 24. Under the heading "Doctor Alexakis' home visits were clinically indicated", the Practitioner submitted that this particular would not be found to have been made out. It was submitted (at par 88) that "[Patient B] was alone and without appropriate services to help him. Dr Alexakis was his long term treating GP, who [Patient B] trusted and confided [in]". Most of those contentions are uncontroversial. It was also submitted (at par 89), accurately, that there had been no "challenge or criticism made of the nature and quality of Dr Alexakis' care for [Patient B]". 25. The Practitioner relied upon his evidence in cross-examination (Tcpt, p.56 line 49 – p 57 line 25) explaining why he visited Patient B at home in June to October 2017. In view of the fact that this particular relates to the period after Patient B's second discharge from RPA in June 2017, that evidence does not materially impede or assist the Practitioner's defence of the claim. 26. The Practitioner also relied (at par 92) on his evidence with respect to clinical indications for his visits after Patient B's discharge from RPA in June 2017 (Tcpt, p 78 line 35 - p 79 line 18) in which he stated that Patient B requested him to take his blood sugar levels (BSL) every day, for reasons which included that Patient B was diabetic, that there were "instances there when his sugars went quite high. There were other times when it was neutral. It provided a comfort to the patient that he knew that his sugars were being controlled", which the Practitioner suggested "adds to the psychosocial aspect of someone who is in [Patient B's] conditions, and I think it's something that really wasn't touched on by the specialist". The Practitioner's defence to this particular relied in part on his assertion that home visits to a dying patient which had a "psychosocial" benefit could not be found to lack clinical indication. 27. The Practitioner further stated that as Patient B was in palliative care "or in his end-of-life management" and "deteriorates, he eats less and his sugars drop down. As he's feeling well, he eats more. As he becomes septic, his sugars go right through the roof. I mean, there are many factors that influence sugar, and I - we can talk about diabetes, but - I hear what you're saying and I agree that strict control of his diabetes is not needed in [Patient B's] state, but certainly he was anxious about his diabetes". In those circumstances, it is difficult to accept that, considered in isolation, monitoring Patient B's BSLs was objectively clinically indicated. 28. The Practitioner relied (at par 93) on the fact that, between August 2015 and May 2017, of the 29 surgery consultations Patient B had with the Practitioner, "his blood sugar was tested 25 times", that being submitted to be a standard practice in the Practitioner's consultations with Patient B. There is no evidence that doing so was not clinically indicated. 29. The Practitioner submitted (at par 96) that he had been concerned about the "significant gap" in Patient B's care and relied upon the following evidence (Tcpt, p 76 line 31 - p 77 line 2): "Q. And, Dr Alexakis, you say that you prefer for the patient to initiate requests for you to visit them at home? Is that right? A. Yes. Q. But when you visited him at home and discovered that he was only having [Person N] in for 5 hours, is it the case that you then initiated your ongoing attendance? A. Well, I guess it - I was concerned that he had this gap of no-one being in the house, that he was a falls risk, that he may be in a position of ill-health - like he was in a position of ill-health, and beyond that he welcomed me to come back and would ask me what time could I expect him the next day. Q. What time he could expect you? A. Yes. So, to me that was a communication of, you know, please come and have a look at me and make sure I'm fine and look at my sugars, because he was concerned about his diabetes. Look, I think that by the same token, he got comfort from the fact that he knew that someone would be coming to see him in the evening. And that his sugars were being looked at. He had these leg ulcers, and again, I think he was well aware of the adverse effects of having uncontrolled diabetes or sugar diabetes would have on his blood supply, on his leg ulcers, on infection and was happy to be having that." 1. The Practitioner relied upon the evidence of Person N with respect to the "gaps" in the care which was being provided for Patient B at home. We have earlier referred to Person N's evidence, which we accept. 2. With respect to Dr Christie's evidence, the Practitioner relied on a number of exchanges in cross-examination (Tcpt, p 365 line 38 - p 366 line 22): "Q. Dr Alexakis says in relation to the home visits, 'If I did not give [Patient B] insulin when required, he ran the risk of quickly developing the matters outlined, which would be amongst other things; reduced vision, reduced feeling of hands and feet … (not transcribable) … urinary control and frequency, light-headedness, increased risk of an infection or sepsis, increased risk of vascular disease, increased risk of stroke and heart problems, increased risk of eye bleeding or haemorrhage, increased fall risk, impaired renal function, and hyperglycaemia. That's all the things that a treating general practitioner must take into account with regard to the insulin regime, correct? A. Correct. Most of these complications are what's called long term end organ damage, which means they accumulate over a period of a decade or more. In a man who has a bowel cancer who is deteriorating in the last months of life, these are no longer a grave concern because he will not be alive long enough to develop, or to have those problems worsen. In relation to short term issues such as hyperglycaemia. The palliative care guidelines, there are several available, are very clear around the treatment of diabetes in end-of-life care, and they note that generally speaking, diabetes in the last months of life should have higher blood sugar control, or looser blood sugar control, because the risk is one of hypoglycaemia from insulin, not end organ damage. Q. It is the tenor of your evidence then with respect doctor, he is going to die anyway within a matter of weeks or months, therefore I need not be as rigorous in testing his levels and administering insulin as I might have been a year or two earlier. That's your evidence, isn't it? A. That is correct. That is not - these are the differences between a doctor-patient relationship and another relationship. We are required to objectively manage the evidence in front of us, and the objective evidence in the management of diabetes in end stage disease, is precisely that. If a complication is unlikely to worsen in the space of a couple of years, and the patient we know is not going to be alive in a few years' time, we don't have to be concerned about the complication." 1. The Practitioner also relied (at par 99), inferentially in support of his contention that clinical indications for home visits to Patient B should not be evaluated solely by reference to the patient's purely medical needs, on the further evidence of Dr Christie (Tcpt, p 366 line 36 - p 367 line 17): "Q. He wanted to go home to die. A. Yes. Q. But he was able to stay home July, August, September, October. A. Correct. Q. It was only literally in the last few weeks that he was admitted to hospital where he died. A. Correct. Q. In hindsight, Dr Alexakis through his care and treatment was able to allow the man to stay home for those months, correct? A. After Dr Alexakis handed over care and there was no GP, the patient was not seen on a daily basis. Q. No, with great respect, I'm not asking for after Dr Alexakis handed over care, I'm asking for those few months with the very frequent home visits of which you are critical. That allowed the patient to have a lifestyle at home, correct? A. Yes. Q. Apparently to do all his financial tax and corporate matters that he wanted to do, correct? A. Yes. Q. To potentially die at home, even though he didn't, correct? A. Yes. Q. And you are saying that care was excessive? A. Yes. The same outcome could have been achieved, and is regularly achieved in my experience, in that sort of situation by medical visits once or twice a week." 1. The Practitioner also relied on other parts of Dr Christie's evidence (Tcpt, p 34 lines 8-33). By reference to the guidelines with respect to "professional conflicts", Dr Christie was asked: "Q. … What do you say were the professional conflicts in that paragraph? A. The professional conflict of interest is that he knew that there was a financial gain to himself and he continued to be the sole treating practitioner at his home." Q. That, again, assumes that he knew he was in the Will? A. Yes." Dr Christie's assumption was incorrect – the Practitioner did not know that until after Patient B's death. 1. Dr Christie suggested with respect to the failure to maintain professional boundaries that "There was a large amount of contact that was social and friendship, rather than professional, and that - the patient himself thought of the doctor as his friend and, in fact, his only social contact". Dr Christie's conclusion that Patient B thought of the Practitioner as his "friend" was not supported by the evidence before the Tribunal. Dr Christie's opinion potentially conflated "social" and "friendship". Depending on the circumstances, social home visits may not have lacked clinical indication, as Dr D explained in her evidence. Home visits in the nature of and resulting from friendship would lack such indication. 2. As we have earlier recorded, this particular requires an objective evaluation of whether the Tribunal is comfortably satisfied that the proven conduct of the Practitioner fell significantly below the requisite standard. What the Practitioner considered his relationship with Patient B to have been, what Patient B considered it to have been, what Person N considered it to have been, or what anybody else who saw Patient B at the time considered it to have been, is irrelevant for those purposes. 3. As we have also earlier recorded, the Tribunal is not comfortably satisfied that, at the time of any of the visits which give rise to this particular, the Practitioner knew that he was "in the Will" of Patient B. Whether, in all the circumstances he should have anticipated that he was is not relevant to the determination of this particular. 4. The cross-examination of Dr Christie relevantly revealed (transcript, p 34 lines 8-33): "Q. What's wrong with having professional boundaries and non-professional boundaries? A. Well, I've taken the excerpt from the Code of Conduct. Professional boundaries means that you recognise the nature of your relationship with a patient as a treating doctor. Q. So far as you're concerned, all you know there was nothing with regard to the professional care as a GP provided by Dr Alexakis that was in any way affected by his relationship otherwise with the patient; correct? A. I don't know that. The thing that I was concerned about was when the patient said, "He comes to visit me whether I need it or not", and he interpreted that, he believed that that was an indication of what a very good man he was. Q. Are you saying that that constituted criticism or just the reciting of a fact? A. What? Q. That [Patient B] had told you that he is visited by the GP whether he's needed or not? A. Yes, there were two concerns with that. One was that I was given the impression by the patient that he charged him for some of the visits that he may not have needed or wanted or asked for and that he only charged him Medicare and the other was the clear development of a - what the patient thought was a very close friendship from somebody who was continuing to be his treating GP." 1. As we have recorded earlier, Patient B's view of the necessity for clinical visits, or absence of such necessity, is not relevant for present purposes. As is not in doubt, the Practitioner is not accused of offences with respect to Medicare. 2. Dr Christie said that the Practitioner had "potentially" breached professional boundaries "by being a good friend". Dr Christie acknowledged that Patient B "had virtually no friends" and that the Practitioner was his "only visitor at home" and agreed that Patient B had said that the Practitioner was "such a good man. He drops in at home at least every week, whether I need him or not, even if we don't have an appointment" which Dr Christie agreed was "what friends are for if that's all they are. When he was unable to differentiate whether a visit was a professional visit or a friendship visit, I think that becomes problematic, and most people would not continue to treat patients who are close friends and it's strongly discouraged". The crux of Dr Christie's opinion was that the Practitioner could be Patient B's friend or his doctor, but could not be both. 3. Implicit in Dr Christie's opinion is that, because Patient B had virtually no friends, and the Practitioner was his only visitor at home, he and Patient B must have been friends. Objectively, the evidence before the Tribunal fails to establish that there ever existed what would generally be regarded as a "friendship" between the Practitioner and Patient B, even if Patient B considered that it was. The only contact which the evidence reveals the Practitioner to have ever had with Patient B was either at his surgery when Patient B consulted him in what is not suggested to be other than a medical context, when he visited him at RPA, and during the home visits which give rise to this particular. 4. When asked what services he suggested that the Practitioner was providing to Patient B that were not necessary or likely to benefit him, Dr Christie said "I was referring there to my concern that he may have charged to Medicare for visits to the patient which were not called for by the patient or may not have been medically required". Neither this nor any other particular asserts that the Practitioner charged Medicare for visits which were not medically justified and, in fairness, Dr Christie's answer does not suggest anything different. 5. It was put to Dr Christie that he had (transcript, p 34 lines 8-33): "Q. … no basis for suggesting that Medicare were being charged for services that were not clinically justified. That was speculation on your part; correct? A. That was speculation, and that's why I put in 'may have' terms." 1. The Practitioner relied upon evidence given by Dr D in cross-examination with respect to the necessity for home visits (Tcpt, p 270 line 35 - p 272 line 33). It is appropriate to record that evidence: "Q. Alright. And then I'm going to say to you, you are asked the following question, 'Would you agree that his home/his presence at home would justify daily monitoring?' And you answered, and I'll read it to you, 'So I guess ideally it would be good if there were somebody in on a daily basis. But many people will choose to be at home without that without a pendant alarm, and I knew that he did have a pendant alarm. So not - not essential. So some people would choose to go home. He would still have the ability in most situations to call for help, so for a bowel obstruction or bowel perforation you have warning, and you can call. Sometimes a catastrophic haemorrhage obviously is very difficult to manage and is a very rapid death, but mostly he would have been able to seek help should he need it.' Now, do you recall that being your answer? A. Don't recall that being my answer, but that's consistent with what I believe. Absolutely. So ideally in this situation just having a family member at home would – would be, you know, a huge reassurance to any medical practitioner. Q. You were asked the question, 'Would it be fair to say that on discharge to home you would expect the general practitioner to regularly monitor the condition of [Patient B]?' And your answer here is noted, 'A GP would do that. Absolutely.' A. That's correct. Q. Now, was that your answer and was it accurate? A. Yes, it's accurate. Q. You were also asked the question in response to that answer, 'That would be either by telephone or face to face?' And you answered, 'Correct. The palliative care team were also involved, and so there would also be the option to contact the palliative care physicians. So both medical palliative care and nursing palliative care.' And you agree that that's an accurate answer? A. Yeah. So we'd expect that a GP would be in contact like weekly is what I would have expected." 1. The Tribunal then asked: "Q. Sorry, you mean weekly with a patient or weekly with the palliative care team? A. Weekly with a patient." 1. Dr D was then asked whether there could be "more regular monitoring if the GP on the GP's assessment considers that valid", to which she replied: "A. Yeah, depending on the circumstances. That wouldn't - his - the - the medical condition in which he left the hospital, Prince Alfred, in [sic] would not have required a - very frequent visits. Q. In the context of you knowing from 2015 that he had diabetes, you were asked the question, 'That required daily monitoring of sugar and insulin levels?' And you answered, 'So again, ideally yes.' You continued, 'You'll be aware that he had an admission for a hypoglycaemic event and was lucky really to survive that.' You continued, 'But there are many people who are on that level of insulin who may not test their blood sugar levels all the time. It depends. So ideally yes, but it's not absolute.' Was [sic] that answer reflect your belief at -- A. Yeah, [Patient B] was capable of monitoring his blood sugars. Q. But you're not actually aware of whether or not he did monitor his blood sugars, correct? A. Yes, I have no idea what he - what he did with his blood - blood sugars at that time. Earlier when I'd - when I'd seen him in February we'd discussed his blood sugar levels and such, and I think even in May we'd spoken about his blood sugar levels as well. And he was able to monitor them. Q. Then finally with regard to [Patient B's] diet, again after he was discharged in June 17, you were asked a question, 'It was important that he not bring on an obstruction or a congestion, and in that context it was important that he watch his diet?' And your answer, 'Well, that's a two edged sword, isn't it? So you want somebody to have as much pleasure and enjoyment in that phase of their life. They are going to need to take some care because, you know, constipation is going to be a major issue, and so you don't want things that can exacerbate that potential obstruction, but you also want to sort of temper that with the enjoyment of what little time you have left.' And that correctly reflects your answer? A. Correct. Q. And then you were asked, 'Obstructions and blockages can come on at short notice?' You said, 'Absolutely, yeah.' Finally you were asked, 'He" - [Patient B] – 'never complained to you about Dr Alexakis and the care Dr Alexakis provided?' And you said, 'He never complained about the care that Dr Alexakis provided.' A. That's correct. Q. 'And he spoke favourably about Dr Alexakis?' And you said, 'That's correct, right until the final time I saw him in the palliative care unit.' A. That's correct. Q. And the fact is the final time you saw him in the palliative care unit was just days before his death? A. About a week or so, I think. Is it - it's about 10 days." 1. The Practitioner was cross-examined with respect to his visits to Patient B's home after the former's return from his second RPA admission (Tcpt,22 July 2022, p 46ff) and by reference to his handwritten notes (p 50), which the Practitioner accepted were in his possession between 6 July and 5 October 2017. 2. Although the Practitioner was cross-examined about the ability of other medical practitioners to access the notes, the cross-examination did not include challenges to the accuracy or adequacy of the contents of the notes themselves. The Practitioner agreed (Tcpt, 22 July 2022 p 57) that "in general" he charged for all home visits and that the circumstances involving Patient B where he "accumulated daily visits was unusual in and of itself". 3. The Practitioner was cross-examined about the fact that his visits to Patient B at home first commenced on 6 July 2017, some 10 days after Patient B's second discharge from RPA. The Practitioner was referred to entries in the clinical records for 27 June, 4 July and 5 July 2017 (Tcpt, 22 July 2022, p 58) for which he made no charge, the consultations involving "prescriptions, pathology, more prescriptions" for Patient B. The Practitioner was cross-examined with respect to his first claiming on Medicare for visits with Patient B during the period to which this particular relates on 15 January 2018. The Practitioner agreed (Tcpt, 22 July 2022, p 71) that between 26 June and the middle of August 2017, when he first wrote to the palliative care team the Practitioner was "the primary medical care giver" to Patient B, adding that he was "the only person he allowed to consult with him". There is no evidence contrary to the latter suggestion. The Practitioner confirmed that, during that 6-week period, Patient B had an episode of faecal incontinence which he agreed was a "health risk" having regard to the "open wounds" on Patient B's legs. 4. The Practitioner was asked (Tcpt, p 77ff) about home visits with Patient B, the first of which occurred on 6 July 2017. In the course of cross-examination with respect to the home visits, the Practitioner said (Tcpt, p 76 line 44ff) that Patient B would communicate with him in terms of "please come and have a look at me and make sure I'm fine and look at my sugars, because he was concerned about his diabetes. Look, I think that by the same token, he got comfort from the fact that he knew that someone would be coming to see him in the evenings. And that his sugars were being looked at. He had these leg ulcers, and again, I think he was well aware of the adverse effects of having uncontrolled diabetes or sugar diabetes would have on his blood supply, on his leg ulcers, on infection and was happy to be having that monitored". 5. The Practitioner was adamant throughout his cross-examination (Tcpt, p 77 line 40) that the care which he provided to Patient B at home was needed by him, stating that Patient B "needed the depth of cover that he should have - that he needed in accordance with his condition". Although the Practitioner sought to justify the frequency of his home visits by reference to taking Patient B's blood sugar levels (BSLs), we do not understand him to dispute that community nurses could have done Patient B's dressings. The evidence does not establish that in any event. 6. The Practitioner was asked (Tcpt, p 78 line 36) whether: "Q. Having heard Dr Christie's evidence, do you accept that taking [Patient B's] BSL levels - blood sugar levels - every day was not clinically indicated? A. Look, I don't agree with that. Firstly, because the patient requested it. He was diabetic. There were instances there when his sugars went quite high. There were other times when it was neutral. It provided a comfort to the patient that he knew that his sugars were being controlled. I think this all adds to the psychological aspect of someone who is in [Patient B's] condition, and I think it's something that really wasn't touched on by the specialist. Q. In fact, Dr Christie said something to this effect. That is, first of all, above a normal or appropriate level of blood sugar is not as much an issue at a terminal stage of life. That was one thing that Dr Christie said. Do you agree with that? A. Yes. I recall his statement. Q. Do you agree that that's the case, clinically? A. It depends on what stage this person is in his palliative care - or in his end of life management, but it's - there's no linear - you know. As he deteriorates, he eats less and his sugars drop down. As he's feeling well, he eats more. As he becomes septic, his sugars go right through the roof. I mean, there are many factors that influence sugar, and I - we can talk about diabetes, but - I hear what you're saying and I agree that strict control of his diabetes is not needed in [Patient B's] state, but certainly, he was anxious about his diabetes. He was concerned that inadequate control of his diabetes would have other repercussions and certainly he had frequency of urine. He was a falls risk. He was oozing protein from his wounds. He'd have to get up from bed and go to the toilet, you know there's added risks that are associated with an elevated sugar in the immediate - to short term - that would have been ameliorated by better control of his diabetes." 1. The Practitioner was asked (Tcpt, p 79 line 31): "Q. In relation to dressings, is this ultimately the position: that [Person N] initially did not undertake dressings, then, after you started visiting, she started changing the dressings. And then once [Patient B] got a golden staph infection, she could no longer do the dressings. Is that the position? A. Okay. The dressings went from no dressings and total rejection of any dressings at all. I think he wore some compression stockings, which helped to support the lymphoedema and stop it developing more and more, but as the legs got ulcerated, the oedema would - or the protein from the ulcers, which is a skin break, would ooze out onto the floor beneath him. So he went from absolutely nothing to compressive stockings, to dressings that were taught to [Person N], I think, on 15 August." 1. In the course of his responses to questions from the Tribunal (Tcpt, pp 85-86), the Practitioner explained, with particular reference to taking Patient B's blood sugar levels, how his notes worked. 2. On 5 September 2022, the Practitioner was further cross-examined about home visits to Patient B following his second discharge from RPA. The Practitioner rejected (Tcpt, p 18) a suggestion to him in cross-examination (at line 31) that he "attended at the hospital in May and June and that you visited him on 91 occasions at his home because you wanted to maximise the prospect of [Patient B] making provision for you in his Will". It was further suggested to the Practitioner that he "looked after [Patient B] at home because it was understood between you and [Patient B] that he would make provision for you in his Will in return for you visiting him daily and maintaining him until his death?". That suggestion was rejected by the Practitioner, who added that he visited Patient B "daily because there was a lack of medical care that he provided and he rejected palliative care services from RPA and that he'd negotiated substandard cover for himself in the discharge period through Your Choice services". There is no evidence which supports finding that Patient B would have accepted medical care from anyone but the Practitioner during the period to which this particular relates. 3. Although the Practitioner was further cross-examined (Tcpt, 5 September 2022, p 35ff) about the circumstances in which he made, and retained, his handwritten notes with respect to home visits to Patient B during the period to which this particular relates, the Practitioner was not specifically cross-examined with respect to what he recorded in those notes. That cannot have been inadvertent, as during cross-examination, the Practitioner was questioned about his clinical notes for other periods during the time he was Patient B's general practitioner. 4. The Practitioner was cross-examined (Tcpt, 5 September 2022, p 44) with respect to blood tests ordered on 19 September 2017 and why he did that. There is no evidence before the Tribunal suggesting that doing so was other than in the course of the practice of medicine. Consideration 1. It is to be remembered that the Commission bears the onus of proving this particular on the balance of probabilities to the comfortable satisfaction of the Tribunal. The contents of the handwritten clinical notes made by the Practitioner at or about the time of the home visits to which they refer have not been seriously or successfully challenged in these proceedings. Whatever their adequacy, the notes clearly record "clinical" matters. 2. As the evidence to which we have referred makes clear, the Practitioner may have attended upon Patient B more often than he needed to on medical grounds. As we have earlier recorded, this Complaint is not concerned with overservicing as such, or overcharging or matters of that kind. As the cross-examination of the Practitioner makes clear, the thrust of the case is that the Practitioner attended Patient B at home as regularly as he did for an entirely different reason to that suggested by the Practitioner, namely to preserve or enhance his prospects of being "in the Will" of Patient B, and not because doing so was clinically indicated. As we have recorded elsewhere in these reasons, it has not been established that the Practitioner knew at any time prior to Patient B's death that he was in his Will. Nor has it been established that the Practitioner believed or expected that he was, or would be, "in the Will" of Patient B. Whether he should have anticipated that, in the circumstances of his relationship with Patient B, that was likely, falls to be considered in the context of other particulars. 3. Inherent in this particular, although not expressly so articulated, is the proposition that, in circumstances where it has not been shown that so doing was intended to, or had a financial benefit by way of the payment of fees, a medical practitioner should be criticised for giving a patient with serious medical issues in the dying stages of his life more care than other practitioners might have given or than might strictly have been necessary. This involves another "grey area", although, ultimately, for the reasons which follow, we do not need to attempt to define its meets and bounds. 4. The Practitioner gave his evidence with respect to these issues in a candid and open manner. He made admissions and concessions which were appropriate with respect to his attendances, and did not seek to rationalise them. He did not seek in his oral evidence to magnify the nature or significance of the services which his clinical notes suggest that he provided. To the extent that, to someone in Patient B's circumstances, the Practitioner may have been seen by him as a friend would not, in the absence of more, warrant criticism of the services which the Practitioner provided. 5. As is not in doubt, the determination of this particular involves an evaluative decision or "value judgement". Inherent in such a determination is the likelihood of minds reasonably disagreeing on the facts of a case. The terms of the particular are important. The terms of the complaint are that "at most, weekly home visits were clinically indicated". It is not in doubt that the Practitioner's home visits were significantly more frequent than weekly. The issue is whether, to the extent that the Practitioner visited Patient B at home more than would usually have been appropriate, as the evidence, and particularly that of Dr D, suggests, the additional visits have been shown to lack a clinical indication. 6. Although we have reservations about the clinical indications for some of the Practitioner's home visits to Patient B, having regard to the contents of the contemporaneous notes made by him, the comparative absence of challenge to their contents, and the Practitioner's evidence with respect to the asserted clinical justification for the visits on "psychosocial" grounds, we are not comfortably satisfied that the conduct of the Practitioner fell significantly below the standard required of him. 7. We are not able to reject the Practitioner's explanations for his home visits to Patient B. Nor are we comfortably satisfied that, to the extent that the visits may in part have unintentionally been due to "friendship", that means that they were not clinically indicated. Implicit in this particular is criticism of a medical practitioner who, without financial detriment to the patient or the health system, provided more care during the patient's last dying months than another practitioner might have provided, or the patient may have medically needed. Although not so intended by him, we have some reservations about the evidence of Dr Christie which we have earlier recorded with respect to the standard of care that is appropriate for a patient in Patient B's circumstances. We also have concerns that upholding this complaint may not be consistent with the overarching obligation on the Tribunal to regard the health and safety of the public as paramount. 8. It is of some concern that the Practitioner, in acquiescing to the patient's wishes, and so visiting almost daily, potentially deprived the patient of more appropriate and comprehensive care, which could have been provided by a fully qualified community nurse from the time of the patient's discharge from RPA, to attend to dressings and measure blood sugar levels amongst other clinical activities. Such expert care could have been supported by weekly visits from the Practitioner. The Practitioner's argument that the patient declined such comprehensive care does not fully justify his actions. Support for that suggestion is gained from the fact that, when the staphylococcal infection was detected, and Person N was no longer allowed to attend to dressings, Patient B accepted the appropriate community nursing attendances. Frequent visits does not necessarily imply good care. It could be argued that the Practitoner's intervention prevented other professional care, and indeed the Practitoner's activity was therefore never subject to scrutiny, but, as no complaint raises this issue, we take it no further. 9. The Practitioner did not dispute that he billed Medicare on approximately 33 occasions but disputed that not all of them were "long consultations", and disputed that doing so constituted conduct which fell significantly below the required level. What the Practitioner billed Medicare, or the patient, is not material to this complaint. 10. But for the emergence of the Practitioner's notes of his attendances at Patient B's home, the Tribunal would have been likely to have found that his visits lacked a sufficient clinical indication, and that his conduct accordingly fell below the requisite standard. Having regard to the totality of the evidence to which we have referred, the Tribunal is not comfortably satisfied that the conduct of the Practitioner fell below the requisite standard. 11. Even if it had, in all the circumstances of this case, we would not have found that the conduct fell significantly below that standard. Although the Tribunal is not satisfied that all of the 92 home visits to Patient B were clinically indicated, we are not satisfied that no more than weekly visits were clinically indicated as the particular alleged. We cannot, and do not need to attempt to find, what frequency of home visits were clinically indicated. 12. We accept that attending to Patient B's dressings did not justify the home visits to Patient B. We do not accept that the Practitioner attending to a patient's dressings when community nurses could do so necessarily fell below, or significantly below, the requisite standard. The evidence of Person N, which was not suggested to be unreliable, establishes that, in the main, she attended to Patient B's dressings. In the absence of evidence that the Practitioner should not have attended to Patient B's dressings during or in the course of a home visit which had some clinical indication, we are not satisfied that this particular is made out. The evidence of the Practitioner and Person N with respect to the condition of Patient B's legs rendered it appropriate that, in the course of a clinically indicated home visit, the Practitioner attended to Patient B's dressings. Particular 5 of Complaint 3 1. Particular 5 alleged: "Between 25 January 2017 and 5 October 2017 the Practitioner billed Medicare on approximately 33 occasions for long consultations (Level B, C or D) with Patient B which was inappropriate in that: (a) weekly home visits, approximately 18 consultations, were clinically indicated; (b) long consultations were not justified given the low level of clinical complexity." 1. The Practitioner did not dispute that he had billed Medicare on approximately 33 occasions for consultations with Patient B, but maintained that only 21 of those were long consultations (Level B, C or D), and that 12 were standard consultations. The Practitioner's Medicare claims history is found at Exhibit HCCC1, Tab 41. 2. Dr Christie's opinion (Exhibit HCCC1, Tab 13, p 13) was that the Practitioner's conduct fell significantly below the requisite standard, as his billing was "inappropriate, given the item numbers billed (all long consultations) and the documented level of medical intervention required in the majority of these 33 occasions of service". Dr Christie's view was that up to 18 of the Practitioner's visits "may have been clinically warranted; but this is a [sic] difficult to draw a firm conclusion given the extent and nature of the medical notes provided by Dr Alexakis relating to this period of time". Dr Christie was "in no doubt that Dr Alexakis did not provide 33 long consultations over this period (as identified and defined in the medical benefits schedule) and that therefore by definition the behaviour represents overservicing". 3. The Practitioner relied on the provisions with respect to palliative care, and the "Palliative approach" articulated in the RACGP aged care clinical guide (Silver Book) (Exhibit R1, Tab 5) in support of his defence to this particular, inferentially suggesting that, overall, the long billings which he had recorded were clinically indicated and justified. 4. The Practitioner said in his original statement dated 3 June 2022 (Exhibit R2, pars 152-153) that he considered billing Medicare on approximately 33 occasions had been "appropriate" and, accurately, that he "did not bill [Patient B] every time I went to see him". The Practitioner asserted that "[w]hile a lot of consultations were long and complex, others were not. I felt that due to the frequency of the visits, that I was adequately remunerated for the care I was providing [Patient B]". Although not in so many words, the Practitioner seemed to imply that, on balance, overall, his billings fairly represented his clinical times with Patient B. 5. In his supplementary statement of 12 July 2022 (Exhibit R7), the Practitioner did not elaborate on what he had previously said. 6. The Commission submitted (at par 60) that the Practitioner had unsuccessfully "attempted to portray the position" asserted by Dr Christie as heartless, and that Dr Christie "demonstrated the sound clinical basis for reducing BSL measurements in patients at end stage of their life, as well earlier focusing on patient choice as an important element of delivering services". The Practitioner's asserted "overservicing" was submitted to comfortably satisfy the Tribunal that the particular was made out. 7. There are two parts of this complaint. Particular 5(a) is in substance a refinement of particular 4(a). Largely for the reasons that we have been unable to accept that the Commission has made out particular 4(a) to the comfortable satisfaction of the Tribunal, we are similarly not able to find particular 5(a) made out. Inherent in that is that the Tribunal is not comfortably satisfied that 15 of the 33 occasions relied upon in support of this particular lacked a clinical indication. Dr Christie fairly conceded that weekly home visits may have been appropriate. 8. The issue then becomes whether the evidence comfortably satisfied the Tribunal that, whether it was 33 or 21 long consultations, those consultations were "not justified given the low level of clinical complexity". Dr Christie's evidence in that regard is clear and unequivocal. As we have recorded, the Practitioner's statements with respect to the issue were cryptic. We have previously referred to the Practitioner's submissions with respect to Dr Christie's asserted "assumptions of fact about Dr Alexakis' conduct, hard line (and unreasonable expectations) about boundaries between doctors and their patients and unfounded criticisms of Dr Alexakis". Possibly because, during the hearing, other issues overshadowed this issue, the evidence with respect to it is less than entirely clear, and, unlike in other respects, the submissions on behalf of the parties are understandably not expansive. 9. The Practitioner was cross-examined (Tcpt, 22 July 2022, pp 67-70) in relation to the billing of Medicare in January 2018 for home visits to Patient B between 26 June 2017 and 4 October 2017. When asked how he recollected, in some instances months after the consultation, how it should be classified, the Practitioner said that, in reliance upon his handwritten notes, he had "a fair recollection of the content that went into the visit" which applied to all the home visits, notwithstanding that he did not "record the item number as you go along". When reminded that "6 months after you had those consultations, you looked at your handwritten notes and determined what item number to claim for them", the Practitioner reiterated that he was "confident at the time of lodging it" that the claim for the consultations on each of those days was appropriately classified as a long or standard consultation. 10. The Practitioner said in response to questions about his reasons for not making a claim with respect to all his home visits to Patient B that, by reference to statements made at the s 150 hearing, he "looked at points of variation from one consultation to the other" and also looked at the "frequency of the visits", the "overall remuneration that I had received or was to receive for that period of time, and accordingly I did not charge all of the visits to - first of all to be responsible for the charging and not burden the public purse. At the same time try not to trigger a response from Medicare, because the last thing you want is an audit. And thirdly, I felt that I was adequately remunerated for the work that I've done in that period of time". It is to be remembered that the Practitioner lodged the Medicare claim with respect to the relevant home consultations with Patient B after the s 150 hearing. There is no suggestion that such claims had been filled out prior to the s 150 hearing. 11. The Practitioner was asked whether he accepted "that it's an inefficient way to be allocating item numbers to consultations after 6 months after you've conducted those consultations". The Practitioner replied, "I have reflected on that a number of times, and now with my Medicare claims ensure that an item number is placed at the end of every consultation that I do. And that's been since we had the IT consultants come to our practice and discuss Medicare, discuss Medical Director and the advantages of using Medical Director with the tools that it has available to it. So, yes, in answering your question I do see there are inefficiencies but we are moving forward with computing and moving forward with the way we lodge our claims." 12. The Practitioner conceded (Tcpt, 22 July 2022, p 70) that in relation to his handwritten notes he "didn't take a note of when the consultation started". The Practitioner also accepted that "having the time on your consultations" allowed for a "degree of accountability" and further that, having not recorded the "start and finishing times of your home consultations" it was "very difficult for a third party to hold you to account in respect of those consultations and the item numbers that you claim for them". 13. As the Practitioner acknowledged, his handwritten notes (Exhibit R4) do not record either the time he commenced or concluded the relevant consultations, much less the likely proportion of the time spent with Patient B that should properly have been billed to Medicare. The Practitioner's statements with respect to this particular and oral evidence do not provide any further clarification or explanation for the notes. His January 2018 billings have an air of reconstruction about them. 14. The evidence comfortably satisfies the Tribunal that the Practitioner first directed his mind to billing Medicare in January 2018, months after his last consultation with Patient B and motivated by and in the light of matters which emerged at the s 150 hearing to which he referred in oral evidence. Without suggesting fabrication, the Practitioner had considerable incentive to create a favourable "paper trail" of his consultations by the time he lodged the Medicare claims. The manner in which the claims were submitted to Medicare by the Practitioner, months after the services were provided, in the Tribunal's view, lies at the extremity of acceptable practice. The Practitoner asserted that he felt that he was adequately recompensed for his efforts, but the efforts made (almost daily for 91 days) were well beyond the norm, and if for genuine clinical indications, deserved to be rewarded, and would usually be claimed promptly and in full by practitioners. 15. The clear impression conveyed by the evidence is that the Practitioner billed Medicare in reliance upon what he thought, on an overall basis, was "a fair thing". The evidence reveals that the Medicare billing in January 2018 was in the nature of a reconstruction which was, of necessity, arbitrary having regard to the absence of any indication of time, or complexity of the relevant consultations with Patient B. It is relevant, as the Practitioner recognised in the oral evidence to which we have referred, that Medicare involved claims for the payment of public money. 16. Whilst the evidence does not establish that the Practitioner may have committed any offence with respect to Medicare, we are comfortably satisfied that, when regard is had to the Practitioner's own records, the admissions made by him in cross-examination, and the manner and time in which Medicare was billed for those non-standard consultations, the allegations underpinning this particular have been made out. 17. Given the involvement of public money, we are comfortably satisfied that particular 5(b) is made out and that, although the Commission has not established that the consultations were not clinically indicated, the evidence establishes that long consultations were not justified. The Practitioner's own records do not establish a level of clinical complexity which justified billing Medicare for long consultations. Particular 6 of Complaint 3 1. Each of particulars 6(a), 6(b), 6(c) and 6(d) turn on the same facts and circumstances. Those particulars provided: "6(a) The practitioner engaged in the conduct set out in particulars 1 and/or 2 in order to financially benefit by being named as a beneficiary in Patient B's Will, and was so named as a beneficiary in the Will executed by Patient B on 8 June 2017. 6(b) The Practitioner engaged in the conduct set out above at particulars 3 and/or 4 to discharge his obligations under an agreement entered into with Patient B on or around 13 June 2017, to the effect that if the Practitioner: (i) assisted Patient B to be discharged from RPA and return to his home; and/or (ii) cared for Patient B at home, the practitioner would be retained as a beneficiary in any existing Will or named as a beneficiary in any future Will, and was so named in the Wills executed by Patient B on 8 June 2017 and 10 July 2017. 6(c) In the alternative to 6(b) above, the practitioner engaged in the conduct set out at particular 3 and/or 4 in order to financially benefit by being named as a beneficiary in Patient B's Will, and was so named in the Will executed by Patient B on 10 July 2017. 6(d) Further or in the alternative to 6(a), 6(b) and/or 6(c) the practitioner stood to obtain a financial benefit by being named as a beneficiary of Patient B's Will, where being named as a beneficiary derived from the doctor/patient relationship between the practitioner and Patient B." 1. As is not in doubt, the Practitioner was named as a beneficiary in the Wills made by Patient B on 8 June 2017 and 10 July 2017. It is not in doubt that Patient B had the capacity to make each of those Wills. The circumstances in which Patient B came to meet Person C, who prepared and witnessed each of his Wills, are not in doubt. The evidence of Person C with respect to the making of the Wills, which the Tribunal accepts, establishes that how the Wills were prepared and executed is also not in doubt. 2. The basis of the Commission's case was cogently articulated in its primary submissions (pars 62ff). Much of the evidence which is relevant to these particulars has been referred to in determining earlier particulars. It is appropriate before considering the competing contentions to have regard to the evidence of Person C with respect to the making and execution of Patient B's Will. 3. A file note by a Commission investigator dated 20 May 2019 (Exhibit HCCC 1, Tab 10B) recorded an interview that day with Person C at Person C's office. Amongst other things, the note recorded that Person C said that Patient B was "sharper than people half his age". In an Affidavit sworn in proceedings in the Supreme Court with respect to Patient B's Wills on 19 December 2019, Person C set out the circumstances in which he came to meet Patient B on 6 June 2017 in a ward at RPA. 4. Annexed to his Supreme Court Affidavit was a typescript of a handwritten file note which Person C said that he made shortly after his consultation with Patient B on 6 June 2017. Nothing emerging from cross-examination of Person C suggests that anything there recorded was inaccurate or, more importantly for present purposes, other than information provided to him by Patient B. 5. Person C also attached to his Supreme Court Affidavit a handwritten file note in relation to his attendance on Patient B on 8 June 2017. Again, nothing contained in that note is suggested to have been other than information provided by Patient B. 6. Person C referred (at par 17) to Patient B having, after the execution of his June 2017 Will, made an appointment with his office staff for him to attend on Patient B at his home "for the purpose of putting the affairs of his company in order" and to his subsequent attendance at Patient B's home on 5 July 2017. Not insignificantly, there is no suggestion that the Practitioner made or was engaged in, or knew of the making of that appointment with Person C. There is no suggestion that the Practitioner attended with Person C on 5 July 2017. Person C attached copies of photographs which he took at the request of the deceased during the conversation on 5 July 2017, together with a document in the handwriting of Patient B and Person C's file notes of the consultation. There is no evidence that the Practitioner knew of Person C's consultation with Patient B on 5 July 2017. That is particularly significant having regard to the fact that the Practitioner's first home visit to Patient B was the next day, 6 July 2017. 7. Person C deposed to the circumstances surrounding the consultation on 10 July 2017 when Patient B executed his second Will in the presence of Person C and a member of his staff. There is no evidence that the Practitioner was aware that Patient B was executing a Will on that day, or that he had executed a Will on that day. That is particularly significant having regard to the fact that, on that same day, according to the Medicare records (Exhibit HCCC1, Tab 41), the Practitioner had a long consultation with Patient B. 8. Person C's contemporaneous file note suggests that he attended Patient B's home at 4.30 p.m. The attendance was estimated (at par 27) to have been of approximately half an hour's duration. 9. As we have earlier recorded, there is no evidence that, prior to Patient B's death, Person C ever informed the Practitioner that he was "in the Will" or said anything to the Practitioner, or hinted at anything, if he in fact had any conversations with the Practitioner, which conveyed, or might have been construed as conveying, that the Practitioner was, or might be in Patient B's Will. Dr Christie's evidence with respect to this issue 1. Dr Christie considered the Practitioner's conduct with respect to the execution of Patient B's Wills to be inappropriate and significantly below the standard required of him. Dr Christie referred (Exhibit HCCC1, Tab 13, p 12ff) to the Practitioner's awareness of the ability of Patient B to "access appropriate legal assistance through the Office of the Trustee and Guardian" and considered that it "would have been appropriate for him to refer [Patient B] to the Office directly himself if he held immediate concern". Our earlier benign findings with respect to this topic are relevant in the context of these particulars. 2. Dr Christie further said that, at least at the time of the execution of Patient B's first Will, as Patient B was an inpatient at RPAH, the Practitioner "should have raised his concern around the need to immediately engage a solicitor with the treating team (in the same manner in which he requested a neuropsychiatric assessment), so that the treating team could arrange for a solicitor from the office of the Trustee and Guardian to attend [Patient B]". Dr Christie considered that it "was inappropriate for [the Practitioner] to arrange for a specific solicitor, known to him personally, to attend [Patient B] while an inpatient at RPAH for the purpose of redrafting his Will." Our earlier benign findings with respect to this topic are relevant in the context of these particulars. 3. Dr Christie referred to the Practitioner's assertion that he was "unaware" of the contents of the Will, or the terms of any Will of Patient B, until after the latter's death. Dr Christie considered that "unlikely … as it would be highly unusual for a solicitor to recommend that a Will be drafted appointing an Executor who was unaware of their appointment as executor, or of the detail of the Will". Dr Christie relied upon a publication by the NSW Trustee and Guardian titled "A Guide to Executorship and Probate" which stated that "[b]eing the executor of a Will can be challenging. It is a job that requires financial, legal, taxation, and sometimes conflict resolution skills. It is important to appoint someone who has the ability to carry out the role, or consider a professional executor." With respect to him, Dr Christie's expertise did not entitle him to express legal opinions. Dr Christie's opinion was not suggested to Person C, who was better qualified to do so. 4. Dr Christie stated, inferentially in reliance upon his experience as a medical practitioner, that it was "exceptionally unusual for a doctor to be appointed as an executor of a Will for a patient under their care" and asserted that there was a "clear potential for conflict of interest in Dr Alexakis arranging a solicitor with whom he has an existing relationship to act for [Patient B] in redrafting his Will. In light of the Will being altered (on 2 occasions) to include Dr Alexakis as the major beneficiary of the Will, there is also a clear conflict of interest". We have earlier recorded that we do not accept that the Practitioner did more than "arrange" for the introduction of Person C to Patient B. 5. Dr Christie's evidence, particularly in this context, was vigorously contested in cross-examination and in the submissions on behalf of the Practitioner to which we have referred earlier and/or will refer. 6. We have earlier referred to the evidence of the Practitioner with respect to the circumstances in which he came to introduce Person C to Patient B. We have earlier recorded benign findings with respect the conduct of Person C with respect to the preparation and execution of Patient B's Wills. All that the evidence comfortably establishes is that, after suggesting other means of pursuing his desire to make a new Will, and having made appropriate disclosures of a potential conflict of interest, at Patient B's request, the Practitioner facilitated the latter meeting Person C at RPA. There is no evidence of any involvement of any kind by the Practitioner in connection with the making of a Will by Patient B between the initial introduction of Person C in June 2017 and Patient B's death in November 2017. 7. Each of these particulars needs to be carefully considered having regard to its elements, in the light of the evidence and the onus and standard of proof which the Commission must discharge. 8. Having regard to the comprehensive and helpful submissions of both parties, and in the light of our earlier findings with respect to particulars which have a bearing on these particulars, the most effective way to consider these particulars is by reference to those submissions. Although the facts which inform the determination of each particular largely overlap, it is necessary to consider and determine them individually. Particular 6(a) 1. It was submitted on behalf of the Commission (at par 62) that this particular "does not require there to have been any agreement between [Patient B] and the Respondent, but rather that the Respondent engaged in professional misconduct by ingratiating himself to him with [Patient B], with the express purpose of being named as a beneficiary in the new Will". 2. It is apparent that for this particular to succeed, the Commission must establish that the Practitioner "ingratiated" himself with Patient B, with the "express purpose of being named as a beneficiary in the new Will". The Commission relied (at par 63) on the Code of Conduct and in particular the requirement that medical practitioners recognise the "power imbalance in the doctor-patient relationship" and not "exploit" patients, amongst other things, financially. 3. The Commission further submitted (at par 64) in reliance upon the evidence there identified, that it was "apparent that the only area in which Dr Alexakis accepted a power imbalance arises in the doctor-patient relationship is in relation to the patient's health status". 4. The circumstances relied upon (at par 65) as establishing the particular were that the Practitioner: "(a) visited [Patient B] on most days after his admission to RPA on 26 May; (b) assisted in procuring a neuropsychological assessment of [Patient B], which whilst not the subject of complaint was a step in the direction of [Patient B] making a new Will; (c) made contact with his own solicitor and brought him to the hospital to meet [Patient B] for the purpose of making a new Will." 1. The Commission posed the question (at par 66) of whether the Practitioner's assertion "that he did not turn his mind to being named as a beneficiary in the Will" at this time, or at any time prior to his last telephone conversation with the Respondent at the end of October 2017 could be "believed". With respect to the Commission, as this particular asserts an intention on the part of the Practitioner, the critical question is whether the Tribunal is able to reject the Practitioner's denials, or find them sufficiently improbable, to enable the Commission to discharge its onus of proof. In these proceedings, it is not for the Practitioner to prove any of those matters. As will be seen, although the Tribunal has misgivings with respect to the level of insight the Practitioner had into the possible consequences of his relationship with Patient B, this particular asserts an intention on his part. Nothing emerging from cross-examination of the Practitioner or any circumstantial evidence to which the Tribunal has been referred renders us unable to reject, or regard as improbable, the Practitioner's evidence with respect to his asserted lack of intention, or anticipation with respect to Patient B's Wills. 2. The Commission (at par 67) posed the further questions: "(a) Is it plausible that the Respondent did not turn his mind to being a beneficiary of any new Will made by [Patient B] in late May/early June 2017? (b) Are the reasons that the Respondent gave for visiting [Patient B] in hospital plausible? (c) Is the Respondent's evidence regarding organising [Person C] to attend on [Patient B] consistent?" 1. The Commission submitted (at par 68) that, if the answers to "any of the foregoing questions" was in the negative, it was "open to the Tribunal to infer that the Respondent engaged in the conduct for another reason, namely in order to benefit in any changes to the Will made by [Patient B]". 2. In support of this particular, Commission reiterated its reliance upon the matters which it had earlier set out, at par 32 of its submissions in support of particular 1 of Complaint 3. We have recorded our findings with respect to those matters earlier in these reasons. 3. It was submitted by the Commission (at par 69) that the Practitioner's acknowledgement that in 2015 he had obtained Probate of the Will of a patient "who had become a friend" and received the entirety of the patient's estate (about $80,000) made it "inconceivable that two years later, confronted with a dying patient who desperately wants to change his Will and who has no close family or friends to whom to make bequests, that the Respondent did not see the opportunity and opportunistically position himself front and centre in [Patient B's] good books". That circumstance requires consideration in the evaluation of this group of particulars. 4. The Commission submitted (at par 70) that the "heart" of the Practitioner's misconduct was his "intention to financially benefit from the patient-doctor relationship, and it might be accepted that even the Respondent was surprised to discover that his good fortune as virtually sole beneficiary amounted to multi-million dollars". It was submitted, however, that what was "important" was the "plausibility or otherwise of the Respondent not having some awareness of [Patient B's] position in life". 5. The Commission made submissions about the unlikelihood of the Practitioner not anticipating that Patient B had significant assets or that, having so few, if any, people in his life who he might be likely to benefit in a Will, the Practitioner would not have anticipated the likelihood of his being a beneficiary of any Will executed by Patient B. 6. Under the heading "The plausibility of reasons for visiting hospital", the Commission made a number of submissions (at pars 73-78) in support of its ultimate contention that the Practitioner's visits to Patient B were "more consistent with the Respondent actively engaging with [Patient B] to enable him to make his new Will, and in so doing put himself front and centre of [Patient B's] mind as a person who is not only his general practitioner, but also a person assisting him in matters personal to him". 7. The Commission was critical of the circumstances surrounding the introduction of Person C to Patient B (pars 79-85). As will be seen, any contradictions in the circumstances surrounding the Practitioner's introduction of Person C to Patient B need to be considered in the light of the evidence of Person C, about which we have earlier made findings which are unhelpful to the Commission's case, to which we will later again refer. If, as the Commission submitted (at par 86), the "true state of affairs" was that the Practitioner "viewed [Person C] as a friend", which has not been established, absent Person C grossly failing in his duty to Patient B, which, if it is suggested, is not established on the evidence, the Practitioner's perception of the relationship could not impact on the Tribunal's determination of this particular. 8. The Practitioner submitted that the evidence with respect to his inheritance from the estate of a former patient in 2015 was not relevant as the Practitioner had explained how that came about (Tcpt, 22 July 2022, p 25 line 18 - p 26 line 16). Although not without reservations, the Tribunal is unable to reject the Practitioner's explanation, or find that it is improbable. 9. That evidence revealed that the deceased former patient's Will had been prepared by the same firm as Person C was a member of. Although nothing emerged from the cross-examination of the Practitioner which directly impacts on the likelihood of his anticipating that he might have benefitted from any Will executed by Patient B, the evidence with respect to the Will of the former patient, and the circumstance in which it was executed, and the relationship between the Practitioner and the former patient does not provide a rational or adequate basis for rejecting his asserted lack of anticipation with respect to the Will of Patient B. As will be seen, although the Practitioner's evidence that he did not imagine that he might be named as a beneficiary in any Will of Patient B in the circumstance in which it came to be executed is indicative of a substantial lack of insight, and less than compelling, we are not comfortably satisfied that the finding sought by the Commission should be made. It is to be remembered that this particular engages with the Will executed on 8 June 2017. As is not in doubt, the 92 home visits by the Practitioner to Patient B occurred after Patient B's discharge from RPA on 26 June 2017. 10. In his defence to this particular, under the heading "[Patient B] was an astute, secretive person", the Practitioner set out (at pars 14-22) the evidence with respect to the personality of Patient B, and ultimately submitted that Patient B "decided who he gave information to, when and how much", who "never told others the details of his Wills", and (par 22) "at all times [Patient B] knew what he was doing." 11. Under the heading "[Patient B] was an independent thinker who made decisions for himself", the Practitioner referred to the evidence (at pars 23-29) upon which he relied in defence of this particular. Significant reliance was placed (par 25) upon the file note made by Dr Fernandes on 2 June 2017 recording, "Patient reports not having a lawyer, but would not like help from the team in helping organise this. Patient would like to make an assessment of the character of the lawyer, and make the decision on his own accord". That evidence is particularly significant having regard to Dr Christie's evidence that, if not referring Patient B directly to the NSW Trustee and Guardian, the Practitioner should have referred him to the treating team at RPA so that they could go about doing so. Patient B had made clear, in statements which are not contested, that he did not want the NSW Trustee and Guardian involved in his affairs in any way. 12. Under the heading "[Patient B] could not be influenced, by anyone, regarding his Wills", the Practitioner relied (at par 33) upon the evidence of Dr Wroth in the following terms (Tcpt, 14 July 2022, p 10 line 47 - p 14 line 5): "Q. [Patient B] made it very clear that he believes - made it very clear to you that he believed he was capable of making his own decisions; correct? A. I didn't specifically ask him if he thought he was capable of making his own decisions. Q. He made it very clear by his statements that he was making his own decisions; correct? A. He was making his own decisions. Q. He believed he was confident in the correctness of the decisions he was making? A. He did, but when questions were raised he was able to see that he hadn't considered things that he might. He said a number of times, 'I hadn't considered that'. Q. But they were in the context he never regretted making a Will, did he? A. I - he didn't tell me that he regretted making a Will. He told me that he regretted - if he had got Peter into trouble, he regretted that, but to say that he never regretted making a Will, I would have no idea about that. Well, actually, he did in the discussion about the Salvation Army child sex abuse, he said that … Q. He regretted making that Will? A. --- he regretted leaving money to the Salvation Army. Q. To the extent he'd made a Will at RPA in the previous week or two, he never indicated to you that he regretted making a Will itself? A. Indicated. I think that he indicated that he was sorry he got - he thought he'd got Peter into trouble and that there were various things that he hadn't considered. So, for example, he was - his demeanour - so you've asked me if he indicated it. His demeanour was a little bit alarmed when he was unable to answer where his Will was, the exact terms of it, who'd witnessed it, who'd paid for it. Q. He made no criticism in that context of Dr Alexakis? A. No. … Q. He wasn't in hospital because he had any mental problems, was he? A. Well, he was at times confused agitated, he was frail, he was distressed. Q. With you? A. He was agitated at times with me, yes. He wasn't distressed with me, but he - and he was medicated. Q. He was agitated, certainly, by some of your questions; correct? A. He was - yes he was. I don't think he was agitated, but he was distressed. He was distressed predominantly that his answers might have got Peter into trouble. Q. If there was a relationship, whatever it was, between Dr Alexakis and the patient, the intervention of a solicitor was an important matter? A. Yes. Q. The ability of [Patient B] to express his views to that solicitor is an important matter? A. Yes. Q. If there were other persons, third person to whom the patient expressed his views in the absence of Dr Alexakis, that was important? A. Yes. Q. If [Patient B] had the opportunity to express whatever views he had to a member of the police force away from Dr Alexakis, that was important? A. I don't know whether it's important or not. I don't know about that. Q. It's relevant? A. I don't know if it's relevant. I didn't know there was any involvement of the police." 1. Dr Wroth subsequently agreed that if Patient B had expressed his views in relation to the making of his Will to a member of the police force that would be "relevant". Dr Wroth accepted, correctly, the importance of Patient B's conversations with the solicitor. The Practitioner relied (at par 34) on evidence of Patient B's ability to think independently, notwithstanding that his condition deteriorated. 2. The file notes of Person C are significant in the context of this particular. The file note of Person C's one hour consultation with Patient B on 6 June 2017 (Annexure A to Person C's Affidavit dated 19 December 2019) is important for what it does not reveal. Person C is, and was in 2017, an experienced solicitor whose competence was not disputed. There is no suggestion that anything which he did, or failed to do, in relation to the preparation and execution of Patient B's Will(s) fell short of the recognised legal requirements associated with the execution of a valid Will. It is at least improbable that, as a solicitor with experience in succession law, Person C would not have anticipated the potential for challenges to any Will benefitting Patient B's doctor in the circumstances in which Patient B came to execute it, particularly as the doctor's own solicitor prepared and executed that Will. The evidence before the Tribunal does not reveal any respect in which, by act or omission, Person C rendered the validity of Patient B's Will vulnerable to a legal challenge. 3. It is unlikely, having regard to the matters which Person C traversed with Patient B that, if he had any concerns about the Practitioner having set about in order to benefit from any Will made by Patient B that, if only to protect himself, Person C would not have recorded those matters in his file notes, have declined to witness Patient B's Will, and suggested that Patient B engage another solicitor. That would have been particularly the case given the connection between Person C and the Practitioner and the fact that the Practitioner introduced Person C to Patient B. 4. There is no evidence before the Tribunal which suggests, much less establishes, that Person C would have been likely to expose himself to civil, and potentially disciplinary action, by failing to diligently discharge every aspect of his duties to Patient B with respect to the execution of his Will. 5. As its terms make clear, establishing this particular to the comfortable satisfaction of the Tribunal involves either disbelieving the Practitioner's evidence or accepting that, notwithstanding his assertions, the circumstances surrounding the execution of Patient B's Will on 8 June 2017 are so inconsistent with the Practitioner's assertions as to enable the Tribunal to find that the Practitioner had the intention alleged in the particular. 6. In the circumstances revealed by the evidence, the Tribunal is entitled to be suspicious about the Practitioner's intentions. The Practitioner was obtuse or naïve in not imagining that Patient B might have provided for him in his Will. Without more, those findings cannot properly be elevated to the status of proof of the intention which this particular alleges. The evidence of the RPA health professionals to which we have earlier referred, the evidence of Person C, and the evidence of the Practitioner with respect to the character of Patient B, which we accept, is that he was "his own man" in the words of his Senior Counsel, who was unlikely to make provisions in his Will which he did not want to make in response to intentional or unintentional attempts by the Practitioner to "ingratiate" himself with him. 7. Having regard to the totality of the circumstantial evidence to which we have referred, the Tribunal is not comfortably satisfied that this particular has been made out. Put bluntly, the Practitioner may have had the intention alleged by this particular, but, other than by elevating the accumulation of matters which arouse suspicion to the status of proof, the Tribunal cannot be satisfied that the particular is made out. Even if the conduct of the Practitioner fell below the requisite standard, for the reasons we have recorded, the Tribunal would not be satisfied that it fell significantly below that standard. Particular 6(b) 1. Pivotal to this particular is the assertion that the Practitioner made "an agreement" with Patient B on or around 13 June 2017 in the terms recorded in the particular. An essential term of the alleged agreement was the Practitioner being "retained as a beneficiary of any existing Will or named as a beneficiary in any future Will". 2. As we have earlier recorded, there is no evidence that "on or around 13 June 2017" the Practitioner knew that he was in any Will of Patient B. In those circumstances, and given that the Tribunal accepts that the Practitioner first became aware that he was named as a beneficiary in a Will executed by Patient B after Patient B's death in November 2017, at least part of the agreement alleged pursuant to this particular, that the Practitioner be "retained" in any existing Will, cannot be established. It remains to consider whether the alleged agreement to be named as a beneficiary in any future Will has been proven. 3. Although the particular alleged that the agreement was made on 13 June 2017, the Commission did not refer to anything which occurred on that date which, even inferentially, suggests that there had been any agreement between the Practitioner and Patient B in the terms of the particular. Of itself, that may not have been fatal to the success of the particular. Even if the matters referred to by the Commission (at pars 89-91) were accepted, they do not establish any express agreement between the Practitioner and Patient B with respect to the making of a Will, either in the terms of this particular or otherwise. 4. Understandably in circumstances where the Commission has not, and could not, plead an express oral agreement between the Practitioner and Patient B, the Commission relies on the conduct of the Practitioner and Patient B, and the circumstances in which it occurred, to establish an implied "agreement". To prove this particular, the Commission need not establish an agreement which a court of law or equity would consider binding on the Practitioner and Patient B, or which Patient B would have been estopped from denying. The focus of the Tribunal's evaluation is whether the evidence comfortably satisfies us that, irrespective of its legal status, or its absence, the Practitioner and Patient B made the alleged agreement. 5. The Commission relied significantly on the post- second RPA admission home visits by the Practitioner to Patient B to prove the alleged agreement (par 92). The Commission submitted (at par 93) that the Practitioner "proffered no explanation as to why, out of all the patients he provided services to, including palliative patients, he had engaged in conducted that involved developing a friendship with [Patient B]. An obvious answer to the objective observer is that the two men had agreed that he would devote himself in this way to [Patient B] in return for being named a beneficiary in the Will". To the extent that those propositions were put to the Practitioner in cross-examination, the Tribunal is unable to reject, or find improbable, either by reference to anything emerging from the evidence of the Practitioner himself, or any circumstantial or other evidence, the Practitioner's denials, and make findings in the terms urged by the Commission. The "objective observer" may or may not reach the conclusion urged by the Commission, but that is not sufficient to establish the particular. 6. The Commission referred, properly (at par 94), to concessions made by Mr Myhill. The evidence of Mr Myhill (Tcpt, 14 July 2022, pp 62-63) was of a conversation in which Patient B stated that he "felt the only person I could turn to was my GP" and that "in return [for helping Patient B to return home] I encouraged him that I would put him in my Will. I persuaded him". As is clear from its terms, that conversation was equivocal and did not constitute any admission by or against the Practitioner. Other than that statement, there is no evidence of Patient B, by words or conduct, "encouraging" the Practitioner, in those terms or otherwise. Patient B undoubtedly acquiesced in the Practitioner assisting him in ways which were less than solely clinically justified, but, absent evidence of more than such understandable acquiescence, that does not advance this particular. 7. There is no direct evidence in support of this particular. The circumstantial evidence relied on by the Commission is equivocal. The Tribunal is unable to find the Practitioner's denials improbable. There may have been an implied agreement between the practitioner and Patient B, but, other than by elevating suspicion to the status of proof, the Tribunal cannot be comfortably satisfied that this particular is established. Particular 6(c) 1. Particular 6(c), which was in the alternative to particular 6(b), alleged that the Practitioner engaged in the conduct set out at particulars 3 and 4 in order to financially benefit by being named as a beneficiary in Patient B's Will, and was so named in the Will executed by Patient B on 10 July 2017. Inherent in this particular is the Commission's contention that the circumstances comfortably establish the intention to benefit financially under Patient B's Will. 2. The Tribunal's findings with respect to particulars 3 and 4 inform the determination of this particular. The Commission relied (at par 96) on the evidence in support of particular 6(b), and its submissions in support of that particular. Although, having regard to the fact that particular 6(b) engaged with the Will executed by Patient B on 10 July 2017, the success of this particular would appear problematic, it is necessary to evaluate the particular in accordance with its terms and the evidence and submissions in support of it. As the submissions of the Commission made clear, the crux of the complaint was that the Practitioner "assisted" Patient B in the ways described in particulars 3 and 4 "with the aim of financially benefitting from the Respondent", which was submitted to constitute an "exploitation of the doctor-patient relationship" and to be "anathema to the high standards of conduct set out in the Code of Conduct". The Tribunal accepts that, as with particulars 6(a) and 6(b), if established, this conduct would constitute unsatisfactory professional conduct. 3. Between the date of Patient B's discharge from RPA on 26 June 2017 and the execution of his Will on 10 July 2017, the Practitioner visited him at home on 6, 7, 8, 9 and 10 July 2017. The conduct relied upon in support of this particular referred to telephone conversations between the Practitioner and other medical practitioners on 14 June, 18 June and 21 June 2017. It is difficult to see how anything said by the Practitioner during those conversations could advance this complaint. 4. The Commission again referred to the approximately 92 home visits to Patient B by the Practitioner between 25 June 2017 and 5 October 2017. Between 25 June 2017 and 10 July 2017, including a visit on 10 July 2017, the Practitioner visited Patient B at home on 5 occasions. Home visits subsequent to the execution of Patient B's second Will on 10 July 2017 were inferentially relied on in support of the inference that the Practitioner did so "in order" to preserve any benefit which he might receive under a Will of Patient B, or enhance his chances of doing so under any future Will. 5. The Commission's reliance upon the conduct pleaded in particulars 3 and 4 is relevant in so far as it records the basis on which particular 6(c) is advanced. Reliance upon those particulars is impacted, but not necessarily determined by their fate, which we have earlier recorded. 6. We have earlier recorded the evidence of Dr Christie with respect to the issues surrounding the execution of Patient B's Wills, and to his opinion that the Practitioner's conduct fell significantly below the requisite standard, and our findings with respect to that issue. 7. The Practitioner relied (at par 163) on his evidence that he did not know that he was a beneficiary of Patient B's Will until after Patient B died. We have earlier recorded that we accept that evidence. There is no reason not to. Although it provides little support for his case, we agree with the submission of the Practitioner that there is no evidence that he ever directly or indirectly asked or "negotiated" or otherwise sought to be named as a beneficiary of Patient B's Will. There is no evidence, other than in the conversation which led to the Practitioner introducing Person C to Patient B, that he ever discussed either Patient B's Will, his testamentary intentions, or details of his estate with Patient B, or Person C, or anyone else. It was submitted that the evidence established that the Practitioner's "management and interaction" with Patient B was directed to addressing Patient B's "health concerns and conditions". We are unable to find that it was not, or, more importantly in the present context, that it was in whole or part, undertaken with the intention of financially benefitting by being named in Patient B's Will. It may have been, but that is a matter for conjecture. 8. The Practitioner relied, not necessarily specifically with respect to this particular, on a letter written by Patient B to the Practitioner on 20 October 2015 (Exhibit R3). The letter commenced by saying, "You are my general practitioner now since January 2014. I have come to regard you as knowledgeable, experienced, serving patients at all levels of society, and the one doctor who has my best health interests in mind". There is no evidence which casts doubt on the accuracy of the last of those assertions. In view of the undisputed evidence of Patient B's character, and the absence of evidence that, until October 2017 Patient B changed his opinion, the statement provides support for the Practitioner's denial of this particular. The letter proceeded to refer to Patient B's perception of events involving Concord Hospital and stated "I shall be guided by your advice in this matter". Patient B also said, "As you know, doctor, I am an octogenarian, without family, living alone. I cherish my freedom". Nowhere in his letter did Patient B refer to the Practitioner as his friend, or otherwise express anything suggesting that he regarded his relationship with the Practitioner as other than of a doctor-patient relationship, or that he was in any way unjustifiably beholden to the Practitioner. 9. Senior Counsel for the Practitioner's description of Patient B as "his own man", and reliance upon the evidence of numerous witnesses, which was submitted to be substantially to the same effect, namely that Patient B was astute, somewhat secretive, sceptical to mistrusting, who made his own decisions, for his own reasons with respect to his financial and testamentary affairs was relied upon in defence of this particular. Quite apart from the fact that it is not in issue that Patient B had testamentary capacity when he made his June and July 2017 Wills, the evidence of Person C to which we have earlier referred provides support for the Practitioner's submissions with respect to the likelihood of the Practitioner having, consciously or otherwise, attempted to influence Patient B to do something which he would not otherwise have done in order to benefit financially under his Will. The Commission does not need to establish that the Practitioner's alleged intention was fulfilled. It is for the Commission to establish to the comfortable satisfaction of the Tribunal, necessarily in reliance upon circumstantial evidence, that the Practitioner had the intention alleged by the particular. 10. The evidence of Person C (Affidavit dated 19 December 2019), which has not, and probably could not have been seriously challenged, was that sometime after the execution of the June Will, and before 5 July 2017, Patient B made an appointment with Person C's office staff for him to attend Patient B at his home for the purpose of "putting the affairs of his company in order" (Affidavit, par 17). Person C referred to his attendance at Patient B's home on 5 July, and set out the conversation which he then had with him. Person C's contemporaneous file note, which was annexed to his Supreme Court Affidavit, recorded the instructions given by Patient B on 5 July and to a handwritten note which Person C said that Patient B gave him during the conference. As is not in doubt, that document set out how Patient B's residuary estate was to be divided between the Practitioner, Frank Camilleri and Hildegard Schwanke. 11. Person C referred to his attendance, with a member of his staff, at Patient B's home on 10 July 2017 and his file note with respect to that attendance and the execution of Patient B's Will. Properly, it was not suggested to Person C in cross-examination that, in taking instructions for the July Will, or when subsequently witnessing its execution by Patient B, Person C had failed to ask any questions, make any enquiries or otherwise do anything which the authorities with respect to the execution of a Will have long established to be necessary. 12. The fact that the Practitioner was included in Patient B's Will, and that the Practitioner was, in the lead up to the execution of the Will in almost daily contact with Patient B could give rise to disquiet with respect to the Practitioner's intentions, or constitute "suspicious circumstances". That disquiet could be heightened by the fact, which was well known to the Practitioner, that, based on what Patient B had told him, particularly in the preceding months, the Practitioner was likely to be viewed by Patient B as more deserving of provision in his Will than any other person. That does not mean, particularly in view of the absence of knowledge of the contents of Patient B's June 2017 Will, or any indication to him from Patient B that he might be included in any later Will, that the Tribunal would find that the Practitioner's care of and relationship with Patient B was "in order to financially benefit by being named as a beneficiary in Patient B's Will". It might, or might not. The evidence is equivocal. 13. Objectively, although the provision made by Patient B in his Will for the Practitioner was disproportionate to anything which the Practitioner may have done for him "above and beyond the call of duty" and for no remuneration, the apparent absence of anyone else with a better claim, and Patient B's reasons for wishing to revoke his earlier Will which made substantial provision for a charity of which he later disapproved, are circumstances which the Tribunal takes into consideration in evaluating this particular. 14. It is also relevant that, although the Practitioner is alleged to have visited Patient B at his home on 92 occasions between 25 July 2017 and 5 October 2017 in order to further his intention to financially benefit from Patient B's estate, he visited Patient B on only three occasions between the latter date and the date of Patient B's death six weeks later. The improbability of his not doing so in order to keep in Patient B's "good books", and preserve any benefit which he may unknowingly have had, or intended or hoped to have under Patient B's will is readily apparent. 15. The absence of suggestion to Person C of anything which would or should have aroused suspicion that the Practitioner intended to benefit financially from Patient B's estate is supportive of the Practitioner's defence of this complaint. Although relied upon, we do not need to reiterate here the findings which we have earlier recorded with respect to Person C's conduct in relation to the preparation and execution of each of Patient B's two 2017 Wills. 16. As is not in doubt, the Commission bears the onus of comfortably satisfying the Tribunal on the balance of probabilities that this particular is made out. The suspicions which the Tribunal has with respect to the Practitioner's motives in attending as diligently as he did on Patient B after his second discharge from RPA fall short of comfortably satisfying us that the Practitioner had the intention alleged by this particular. In the absence of more circumstantial evidence rendering the inference which is central to this particular more probable than the alternate and benign inferences available on the evidence, the Tribunal could only find the particular proved by impermissibly elevating suspicion to the status of proof. 17. In Luxton v Vines (1952) 85 CLR 352 at 358; [1952] HCA 19, the High Court accepted that, in proceedings in which proof on the balance of probabilities is required, "you need only circumstances raising a more probable inference in favour of what is alleged", and that, where direct proof is not available "it is enough if the circumstances appearing in evidence give rise to a reasonable and definite inference: they must do more than give rise to conflicting inferences of equal degrees of probability so that the choice between them is a mere matter of conjecture". The Court added that "if circumstances are proved in which it is reasonable to find a balance of probabilities in favour of the conclusion sought then, though the conclusion may fall short of certainty, it is not to be regarded as a mere conjecture or surmise". 18. In Marshall v Prescott [2015] NSWCA 110 at [83], Beazley P (as her Excellency then was), with the concurrence of Macfarlan and Emmett JJA agreed with the High Court's observations. 19. In the present circumstances, preferring the Commission's version of events to that of the Practitioner is a matter of conjecture, given that the conflicting inferences have "equal degrees of probability". Put bluntly, the Practitioner may or may not have developed and maintained the relationship he had with Patient B in order to financially benefit in the way in which he ultimately did, but we are not comfortably satisfied on the evidence that he did. Particular 6(d) 1. Particular 6(d) was relied upon further or in the alternative to particulars 6(a), 6(b) and/or 6(c), and alleged that the Practitioner stood to obtain a financial benefit by being named as a beneficiary of Patient B's Will, where being named as a beneficiary derived from the doctor-patient relationship between the practitioner and Patient B. 2. Given that the Practitioner disavowed that his relationship with Patient B was other than one of doctor and patient, and as there is no evidence establishing the contrary, or any other relationship which might have motivated Patient B's generosity to the Practitioner, his being named in the Will could arguably only have been referable to, and "derived from" the doctor-patient relationship between Practitioner and Patient B. Having regard to the asserted significance of those facts in terms of the Complaint, although essential for the particular to be established, they do not establish the particular. 3. In support of this particular, the Commission submitted (at par 97), in reliance upon Exhibit HCCC2, Tab 1 of its supplementary documents, that health practitioners in the public sector are prohibited from benefitting from patients' Wills. It was, fairly, conceded that as the Practitioner was not in the public sector, an outright prohibition did not apply, but was submitted that "the principles that no doubt lie behind this prohibition have powerful origins in the expectations of high standards of professional conduct of health practitioners". These were submitted to include: "(a) health practitioners are responsible for the health and welfare of their patients, which is inconsistent with benefitting from their death; (b) health practitioners are expected to treat all patients equally - the promise of a gift through a bequest distorts the neutrality of equal treatment of patients; (c) the relationship between doctors and patients has a power imbalance in it. Patients look up to doctors, rely on doctors to provide them with appropriate treatment and treatment options, and share intimate details of their physical, mental and emotional health with doctors. It would be easy for unscrupulous practitioners inappropriately to influence or prevail upon patients to provide financial benefits for them in their will. It behooves health practitioners actively to avoid placing themselves in a position where any imputation of undue influence can arise. The reputation of the profession depends upon it." 1. The Commission submitted (at par 98), not without foundation in our view, that the Practitioner's actions "at the very least involved a wholesale ignorance of these ethical issues". The Practitioner could permissibly benefit from Patient B's estate notwithstanding that doing so "derived from" the doctor-patient relationship, but only if so doing was not attended by unconscionable conduct, whether or not that conduct offended s 139B(1) of the National Law. 2. In support of this particular, the Commission relied on the evidence of Dr Christie (Exhibit HCCC1, Tab 13) to which we have earlier referred. 3. We have earlier referred to the Practitioner's criticisms of Dr Christie's opinion evidence. We have also referred elsewhere in these reasons to the matters relied upon by the Practitioner (at pars 14-22) in support of his contention that Patient B was "an astute, secretive person" and the submissions in support of the contention that Patient B was "an independent thinker who made decisions for himself" (at pars 23-29). 4. Under the heading "[Patient B] could not be influenced, by anyone, regarding his Wills", the Practitioner relied (at pars 33-36) on evidence from a number of witnesses relied upon by the Commission. The Practitioner relied on evidence given by Dr Wroth (Tcpt, 14 July 2022, p 10 line 47 - p 14 line 5) during which Dr Wroth agreed that Patient B was "making his own decisions", that he was capable of considering things which he "hadn't considered", that, although he was "at times confused, agitated, he was frail, he was distressed" and "medicated", there was no suggestion that he did not understand what he was doing with respect to his financial matters or his Will. Dr Wroth also agreed that in the past Patient B had "demonstrated that he could pick and choose his own solicitors and sometimes reject a particular solicitor". Dr Wroth also agreed that it was "relevant" that Patient B could bring "an independent mind" to determining what provision he would make in his Will. 5. Reliance was placed upon the evidence of Dr Christie (Tcpt, 19 July 2022, p 381 line 38 - p 382 line 1) in which he agreed that Patient B had been "talking about changing his Will for 12 months" prior to executing the June 2017 Will, that there was no "imminent risk of dying, so there was no immediate clinical urgency for him to change his Will", and that he wanted to, and did change the Will. As is not in doubt, a testator does not need a reason to change her/his Will, although the reasons for wanting to do so may be relevant if the validity of a Will is challenged. Dr Christie properly agreed that it was "no-one's job to talk him out of" making a Will in whatever terms Patient B wished to. 6. In our view, it is not insignificant that, unlike medical practitioners in the public health system, there was no prohibition on the Practitioner benefitting from the Will of a patient. We agree with the submission on behalf of the Commission that, the circumstances of this case reveal that, particularly by virtue of his attendances upon Patient B after his discharge from his second RPA admission, that the Practitioner exposed himself to the risk that any provision which he stood to receive from a Will of Patient B might be challenged. 7. In our view, the fact that the Practitioner was provided for in Patient B's Wills because of the doctor-patient relationship does not, without more, render his professional conduct unsatisfactory or unethical or improper. There needed to be some exploitation of that relationship, or the doctor "taking advantage" of the relationship. To find otherwise on the facts of this case involves imposing on practitioners in the private health system prohibitions which, unlike practitioners in the public system, do not apply to them. Although the Code of Conduct is not a legislative instrument, the maxim of statutory interpretation that express reference to one matter indicates that other matters are intended to be excluded from an instrument (see Deputy Commissioner of Taxation v Lincoln Industrial Cleaners Pty Ltd [1975] 2 NSWLR 499; (1975) 7 ALR 118) is supportive of our view. 8. The Tribunal's inability to make the findings urged by the Commission pursuant to particulars 6(a), 6(b) and 6(c) renders success with respect to this particular problematic. 9. The Tribunal is unable to be comfortably satisfied that this particular is made out. In reaching that conclusion, we have had regard to the evidence with respect to the aspects of the personality of Patient B which emerge uncontroversially from the evidence, and to the evidence of Person C with respect to the taking of instructions for and execution of each of Patient B's Wills. There is no suggestion that Person C was under any misapprehension as to the nature of the Practitioner's relationship with Patient B being a doctor-patient relationship. Even if, as suggested by Dr Christie, there was some "blurring" of the relationship, in that it at times involved the Practitioner doing things which were arguably more consistent with acts of friendship than medical practice, that does not in our view establish this particular. 10. As we have earlier recorded, the provision in each of Patient B's Wills for the Practitioner was disproportionate to any unremunerated services or support which he had provided for him, in circumstances where there was apparently no-one, in Patient B's considered view, with a better claim. That does not necessarily mean that the testamentary provision resulted from the doctor taking advantage of the doctor-patient relationship. Unlike the patients in other cases (see Health Care Complaints Commission v Cleary [2021] NSWCATOD 213), the evidence in this case suggests that Patient B was unlikely to be readily exploited, or taken advantage of. 11. For the foregoing reasons, the Tribunal is not comfortably satisfied that the Practitioner relevantly exploited either Patient B or the doctor-patient relationship in the manner asserted pursuant to this particular. As with earlier findings with respect to this particular, the Tribunal has its suspicions, but cannot substitute them for proof of the particular. Particular 7 of Complaint 3 1. Particular 7 alleged that: "Between 20 September 2017 and 5 October 2017, the practitioner failed to arrange an interim transfer of care for Patient B to another medical practitioner at the practice which ought to have been done as soon as possible once the Practitioner became aware of the nature of the complaint on 21 September 2017." 1. It is not in issue that, on 21 September 2017, police attended at the Practitioner's surgery and spoke to him in relation to the concerns which had been raised by members of Patient B's medical team at RPA (Exhibit HCCC1, Tab 54). The statement made by police with respect to the interview recorded that the Practitioner "stated that whilst [Patient B] was in hospital he would make regular visits. During each visitation [Patient B] would express the need to get out of hospital due to the need to make business arrangements". 2. The police notes proceeded to record the Practitioner's statement that "he was not aware of being a beneficiary on the Will of [Patient B], nor did he know of any other beneficiaries; this being consistent with the version provided by [Patient B]". 3. The Police report recorded other matters which the Practitioner was said to have stated. The report concluded: "There was zero elements of criminality detected through police enquiries and therefore this matter was finalised for any further investigations/enquiries to be made by police. Dr ALEXAKIS has been advised that although police have concluded their enquiries, he may hear from the HCCC in relation to any departmental enquiries they wish to made/conduct. Dr ALEXAKIS has been informed that these enquiries have nothing to do with the police, and that they are independent from those enquiries already made by police." 1. The Practitioner does not suggest that the police statement inaccurately recorded, or failed to record, anything said during the interview with him by police on 21 September 2017. 2. The Commission asserted that, as and from that time, the Practitioner was obliged to cease to be Patient B's treating medical practitioner, and to have been obliged to arrange an interim transfer of Patient B's care to another medical practitioner. That contention is not controversial. 3. In his first report (Exhibit HCCC1, Tab 13), Dr Christie said (at p.14, question 11) that, according to his clinical notes, the Practitioner continued to provide care until a "'handover' of sorts to the palliative care service" occurred on 5 October 2017, but that the notes did not "indicate any articulation of a plan to facilitate a handover of care to another GP, or to assist [Patient B] to find another GP between 21 September and 5 October". 4. Dr Christie said that the Practitioner's notes "mention a discussion with [Patient B] on 29 September, with a focus on [Patient B's] reaction, and detail of the justification Dr Alexakis provided to [Patient B] in relation to his decision. The notes are devoid of a clear clinical management plan for the care of [Patient B], or any process for facilitating a handover". Although properly relied upon in support of this particular, it does not include a complaint alleging inadequate clinical records with respect to the transfer of Patient B's care after 21 September 2017. 5. Dr Christie further said that, notwithstanding that Patient B "remained happy to have Dr Alexakis as his treating GP", the Practitioner was obliged "when withdrawing care, to ensure that the patient is not disadvantaged by the process of handing over care provision". Dr Christie considered that the Practitioner should have arranged an interim transfer of care to another doctor in his practice "whilst a decision was made around whether [Patient B] would remain with the practice or transfer his care to another practice". Dr Christie did not subsequently change his opinion that the conduct of the Practitioner fell significantly below the requisite standard in his second report (Exhibit HCCC1, Tab 15). 6. The Practitioner's clinical notes with respect to 5 October 2017 (Exhibit HCCC1, Tab 32, p 232) refer to a surgery consultation and a referral letter to Dr Mittal, but do not shed any light on the substance of the Practitioner's consultation with Patient B on that day. The Practitioner's transcript of his handwritten notes with respect to home visits (Exhibit R4) does not contain any entry for 5 October 2017. 7. In his first statement (Exhibit R2), the Practitioner referred (at par 154) to his interview with police on 21 September 2017. He then referred (at par 155) to having contacted his insurer and said that "[b]ecause of my duty of care to [Patient B] I didn't want to leave him without medical support". The Practitioner then referred (at par 156) to a conversation which he had wIth Patient B in which he stated "I have to step away from being your GP. The police came to visit me and asked me questions about you". The Practitioner said (at par 157) that he "notified the Palliative Care Team of my withdrawal from [Patient B's] care and suggested closer review until a replacement GP is found". The Practitioner then referred (at par 158) to his contact with Patient B by telephone "to enquire about his state of health and his welfare, and to see how he was going" on 8 October 2017. The Practitioner again telephoned Patient B on 18 and 27 October 2017 and said that he had "informed [Patient B] that I would be calling him until a replacement GP was found at roughly 10 day intervals". 8. The Practitioner stated (at par 159) that he continued to care for Patient B between 21 September and 5 October 2017 as he "needed ongoing health care and management that I provided. There was no alternative person to manage his medical condition, which was a constant issue in his management". The Practitioner referred (at par 161) to a conversation with Patient B on 27 October 2017 during which Patient B "told me he had a new GP". The Practitioner said (at par 162) that that was the last time that he spoke with Patient B. 9. The Practitioner said (at par 164) that he "did not ever believe I needed to urgently transfer [Patient B's] care to another doctor between 20 September 2017 and 5 October 2017 as I was attending to the patient who had ongoing health issues. I never considered a professional conflict in my doctor-patient relationship with [Patient B] as I was attending to the patient and was not aware and I did not involve myself in his financial contents of his Will. My focus was on my patient, his condition and needs. I did not believe I was prevented in any way in my professional care of [Patient B]". 10. The Practitioner stated that the called a "local doctor (Dr Graham Locke) as an alternative doctor for [Patient B]" but Dr Locke was "on holidays at the time". The Practitioner suggested that "a potential conflict of interest was apparent with engaging with other Doctors out of our own practice. Even so when I asked for home visits to [Patient B] my requests were refused". It has not been suggested that the Practitioner's evidence with respect to his alleged attempts to transition Patient B's care to another doctor should not be believed. The issue is whether those efforts fell significantly below the requisite standard. 11. The Practitioner said (at par 166) that "When asked about seeing other GPs, the patient told me he did not want to see any other doctors and that he would manage fine as he really was not going anywhere and was just going to die". 12. The Practitioner concluded by stating (at par 167) that "At no stage was there any discussion or concern raised by any of the management team to me about the interaction between myself and [Patient B] with respect to the management of my relationship with [Patient B] at any time prior to becoming aware of the 21 September 2017 complaint". 13. The Practitioner's supplementary statement (Exhibit R7) did not engage with this particular. 14. In its primary submissions, after referring to the evidence to which we have referred, the Commission submitted (at par 102) that the evidence of the Practitioner was "confusing" and asked, "If the Respondent did not consider there was a professional conflict in his care of [Patient B], why did he stop delivering services at all? And how could there have been a conflict of interest in arranging for a doctor from his own practice to attend, if there was no professional conflict in his own relationship with [Patient B]?" 15. The Commission submitted (at par 103) the "simple position" to be that "if the Respondent was of the view that his care of [Patient B] was ethically compromised, if he had genuine concerns about [Patient B's] blood sugar levels, he should have taken immediate steps to find a substitute doctor from within his own practice to take over the care of [Patient B], and not continue to attend upon [Patient B] on a daily basis for a period of two weeks in ethically dubious circumstances". 16. The Practitioner relied upon his general submissions with respect to Dr Christie's asserted "hard line" and "unreasonable expectations" about the standards reasonably expected of the Practitioner to which we have earlier referred. 17. The crux of the Practitioner's defence to this particular was (at par 164) that he took reasonable steps to arrange a replacement GP but, being "unable to do so, Dr Alexakis wrote detailed letters to prospective specialists". 18. The Practitioner referred to evidence given by him in cross-examination on 5 September 2022 (Tcpt, 5 September 2022, pp 4-7): "Q. That period of time between around 27 September and 5 October, you had told [Patient B] that he would need to find a new GP? A. Amongst other things, yes. Q. In relation to that issue, at the time at your practice at Strathfield Medical Practice, there were two other GPs that did home visits, is that right? A. That could potentially do home visits. One I knew was definitely doing home visits, the other on odd occasions, not a regular thing. … Q. Did you speak to Dr Hauser [a medical practitioner employed in the practice at about that time] about the possibility of her, taking over [Patient B's] care? A. I spoke to all the doctors about potentially taking over his care or doing home visits. Q. Did you speak to Dr Hauser about taking over his care? A. I do recollect that, yes. Q. And did you tell Dr Hauser what you had been doing for [Patient B], visiting him daily and taking his insulin measurements? A. No. I asked her if she - only is particular about who she sees within the practice itself, rarely that she sees someone who she has not seen before. Her practice is essentially closed. She sees regular patient [sic] of her own and only does house calls to her own patients. Q. So what was it that you said to her about doing visits for [Patient B]? A. [Patient B]. Q. For [Patient B], I'm sorry? A. Would you be willing to take over a patient for doing home visits. Q. And she said "No"? A. No. Q. And that was the extent of the conversation? A. That was the extent of the conversation. Q. And was that the same conversation you had with other doctors in your practice? A. Yes it was - I let the doctors know what was - what had happened or what was going on and that I had to step back from seeing a patient if they were willing to take over his care and they refused. Q. What did you tell Dr Hauser about what was going on? A. I said that I had to step away from seeing a patient and that there was a [sic] HCCC investigation and that I had to step back. Q. And did she ask you about the circumstances of that investigation? A. No. Q. Did you tell her about the circumstances? A. No. Q. Did you tell her that [Patient B] was in receipt of palliative care? A. No. Q. Did you tell her that [Patient B] was in effect at the end stage of his life? A. No. Q. Did you tell that to any of the other doctors? A. No. Q. Did you make enquiries of any doctors outside your practice for - A. Yes. Q. - provide mister - A. Yes. Q. To whom did you make those enquiries? A. Dr Graham Locke. Q. Is he a local doctor? A. Yes. Q. In Strathfield, I mean? A. Yes. He was, he moved to North Strathfield. Q. As at 2017, he was in North Strathfield? A. Yes. Q. And did you tell him that you had to hand over the care of a patient? A. No. I rang his secretary and enquired about Dr Locke being available to see a - to provide home visits for a patient of mine. The secretary replied that he was on holidays for two weeks. Q. Did you make any further approaches to Dr Locke? A. No. Q. And beyond Dr Locke and beyond the doctors in your own practice, did you make any other enquiries? A. We have an after-hours deputising service, I gave that number to [Patient B]. Q. Sir, can I take it that you didn't make any other enquiries directly with doctors? A. No. Q. Now can I ask you to have a look at your typewritten notes, I'll just have my instructor approach, at page 36? A. Actually I did hand over to the palliative care people, yes. Q. Just to be clear Doctor Alexakis, what I was asking about was your approach as to other general practitioners to take over the care that you had been supplying to [Patient B]? A. Yes but it was to provide care for the patient. That may have been one aspect of it but obviously there was a handover to Concord Hospital to ensure that the patient was at least known to - well he was known to the palliative care team that they were aware that I was stepping back from his care. Q. Yes. So can I take you to page 36. On 5 October 2017, there's DW. That's discussion with palliative care, is that right? A. Yes. Q. Where you say you handed over patient to palliative care, as you've just acknowledged palliative care by this time were more actively involved in the care of [Patient B]? A. Yes. The nurses were visiting daily. Q. And that had been occurring since around mid-September? A. I think 19 September to be --- Q. That was when the regular attendance of a nurse to re-dress [Patient B's] legs commenced? A. That's when we diagnosed the MRSA infection in his leg and the domestic carer was no longer able or not allowed to touch his dressings. Q. And you've written there Dr Lisa Potter? A. Yes. Q. Can you recall now, was that who you actually spoke to on 5 October? A. I did speak to her, I can't remember if it was - no I think it was the 5th yes, 4th or 5th. Q. And at that time, had Dr Potter also seen [Patient B] at his home as well? A. I believe she had seen him, yes. Q. I just wanted to take you through these notes, the second paragraph advised back from running out soon, that's still the discussion with Dr Potter? A. Yes. Q. And the next paragraph is informed Ray regarding one Strathfield Boulevard Pharmacy? A. Yes. Q. Has that note ceased recording your discussion with Dr Potter and started recording a discussion with [Patient B] A. I would have to read the whole entry but sometimes I you know brain snap write something but I think yes that was the end of that conversation. Q. So on 5 October was this a discussion that you had with [Patient B] face to face or over the telephone? A. No I saw him face to face. Q. So these were notes of your final conversation as it were with [Patient B] on a face to face home visit basis? A. Correct, yes." 1. Nothing to which the Tribunal has been specifically referred, or discerned for itself with respect to the cross-examination of Dr Christie, sheds useful light on his opinion with respect to this particular. Nor has Dr Christie, or either party, referred the Tribunal to any particular provision of the Code of Conduct, or other literature in the context of this particular. 2. The letters to other professionals upon which the Practitioner relied were to Dr Dipti Mittal at the Department of Palliative Medicine, Concord Hospital, and were dated 29 September 2017 and 5 October 2017. The Practitioner's letter of 29 September 2017 (Exhibit HCCC1, Tab 32, pp 154-155) recorded a number of matters with respect to Patient B's health and treatment and advised that "I will be removing myself from the care of [Patient B] as his GP and I am in the process of organising its seamless transition. It is not that [Patient B] or I want this (at this point at least), but the care that I have provided has been brought into question by an anonymous individual/organisation and as such, until this is investigated and cleared, I must step down as his GP". The letter continued, "This being the case your services may be called upon a little more frequently until a replacement be found." 3. The Practitioner's letter to Dr Mittal of 5 October 2017 (Exhibit HCCC1, Tab 32, p 156) was a "follow up" on the letter of 29 September 2017. The letter recorded that the Practitioner had "been informed that the palliative care team doctors review their patient on an as needs basis based upon nurse review. I have not received any feedback or response to my last correspondence so I would like to bring to your attention that this patient has MRSA." The Practitioner proceeded to suggest some particular needs with respect to Patient B's ongoing care and concluded by listing, as he had done in his letter of 29 September 2017, Patient B's current medications. There is no suggestion that there was any inaccuracy in what he recorded. 4. The rationale for requiring a medical practitioner to endeavour to arrange for an appropriate health practitioner to take over the care of a patient when the practitioner is unable to continue to do so is, as Dr Christie said, to "ensure that the patient is not disadvantaged by the process of handing over care provision". The fact that there is no evidence that Patient B was disadvantaged by the Practitioner's efforts to hand over Patient B's care provision affords him comfort in his defence of this particular. The issue is the adequacy of his efforts in that regard. 5. Albeit not extensive, the Practitioner did attempt, ineffectively, to arrange for care of Patient B between 20 September 2017 and 5 October 2017. Not insignificantly, on 29 September 2017 and 5 October 2017 the Practitioner wrote to the Palliative Care Team at Concord who were by that time involved in the care of Patient B. Nothing to which we have been referred establishes that the Practitioner had an absolute obligation to secure a replacement medical practitioner for Patient B after 21 September 2017. His obligation was as Dr Christie identified it. Dr Christie's opinion that the Practitioner should have "arranged an interim transfer of care to another doctor in his practice" is not supported by any Code of Conduct, or similar provision to which Dr Christie referred. 6. Although ineffective, the Practitioner did make efforts to arrange for interim care of Patient B by a doctor in his practice. Although suggested to have been inadequate, we do not understand cross-examination of the Practitioner to suggest that he did not in fact make the enquiries, within the practice, and externally of Dr Locke, to which he referred. 7. Ultimately, and with respect to Dr Christie, who has given the only expert evidence with respect to this issue, finding this particular comfortably established involves accepting, in the absence of any reference to a provision of the Code of Conduct which expressly or impliedly establishes the obligation asserted by this particular, that the Practitioner had something analogous to a strict liability to facilitate the handover of Patient B's care to another medical practitioner. The Tribunal is unable to find that the Practitioner was subject to such a high obligation. He was obliged to take reasonable steps to facilitate the handover. 8. As is not in doubt, the role of expert opinion evidence is to assist the trier of fact: Makita (Australia) Pty Limited v Sprowles. As we have earlier recorded, in some instances reliance upon Dr Christie's evidence has been established as appropriate. In this instance, however, the Tribunal struggles to find a sufficient or adequate basis for Dr Christie's opinion, and to thus be unable to afford his evidence the weight which would be required to find this particular established. 9. Although the rules of evidence do not apply in these proceedings, the law with respect to expert opinion evidence is instructive when considering the weight to which Dr Christie's evidence with respect to this particular is entitled. Dr Christie's evidence with respect to this topic does not appear informed by specialised knowledge or experience, whether formally or informally acquired, or by reference to any particular provisions of the Code of Conduct. Although Dr Christie's evidence with respect to palliative care is extensive, nothing to which the Tribunal has been referred suggests that, by virtue of experience, his opinion with respect to this particular should necessarily be accepted. In cases where the rules of evidence apply, where "experience" is asserted to be the basis of "specialised knowledge" that must be clearly demonstrated. 10. In HG v The Queen (1999) 197 CLR 414; [1999] HCA 2 at [39]–[44], Gleeson CJ emphasised the importance of the requirement that opinion evidence must be shown to be wholly or substantially based on specialised knowledge in proceedings in which the rules of evidence apply. His Honour said (at [44]) that "Experts who venture 'opinions', (sometimes merely their own inference of fact), outside their field of specialised knowledge may invest those opinions with a spurious appearance of authority, and legitimate processes of fact-finding may be subverted". The Tribunal does not suggest that those criticisms apply to the evidence of Dr Christie, but we have reservations about the extent to which his opinion with respect to this particular was wholly or substantially based on his specialised knowledge or experience. 11. In Dasreef Pty Limited v Hawchar, the Court concluded (at [42]) that where an expert's opinion on a particular question "lacked reasoning, the absence of reasoning pointed … to the lack of any sufficient connection between [the opinion] and relevant specialised knowledge". With respect to Dr Christie, his evidence lacks the "connection" to which the High Court referred. 12. Also relevant to the weight appropriate to be afforded Dr Christie's evidence with respect to this particular is the fact that Dr Christie could not have been aware of the evidence of the Practitioner in cross-examination, although he was aware of the letters to the Palliative Care Team of 29 September and 5 October 2017. 13. The Tribunal is unable to reject, or find improbable, the evidence of the Practitioner with respect to his attempts to secure an interim general practitioner to take over the care of Patient B. What more he could or should have done to facilitate the handover of Patient B's care has not been established. 14. The Practitioner's actions in contacting the Palliative Care Team at Concord, or the terms in which he did so, have not been criticised. It is clear that the Practitioner, appropriately, and in a reasonably timely way, sought to make arrangements for the interim care of Patient B which, realistically, was potentially better secured through the Palliative Care Team at Concord Hospital than through a general practitioner. It is to be remembered that the Practitioner has been criticised for the level of care which he provided to Patient B prior to 5 October 2017. 15. Even if the evidence establishes that the conduct of the Practitioner fell below the recognised standard, which, given the absence of evidence of what the "recognised standard is", is problematic, for the reasons we have recorded, the Tribunal is not comfortably satisfied that the Practitioner's conduct fell significantly below the requisite standard. Particular 9 of Complaint 3 1. Particular 8 was abandoned in the Commission's Further Amended Application. Particular 9 alleged that: "The Practitioner failed to seek professional advice with respect to the management of his relationship with Patient B at any time prior to becoming aware of the 21 September 2017 complaint." 1. Dr Christie said in his second report (Exhibit HCCC1, Tab 15, p 13 question 3) that the Practitioner: "should have recognised that he was violating appropriate professional boundaries at some point between [Patient B's] admission on 6 May and some point in the first part of July 2017, by which time his home visiting had become excessive, and his involvement was outside of generally-accepted involvement for a general practitioner. Having identified this, Dr Alexakis should have sought professional advice into the management of his relationship with [Patient B], and (if unable to alter the nature of the relationship) Dr Alexakis should have arranged a handover to a different general practitioner at that time." 1. The Commission submitted in support of this particular (at par 104) that as a health practitioner who was subject to the Code of Conduct and "expected to uphold high ethical standards, the Respondent might be expected to face ethical dilemmas from time to time. For the public to have confidence in the medical profession, practitioners must recognise those occasions when outside assistance might be required." 2. The Commission submitted that the Practitioner claimed that he "engaged in certain conduct at the behest of [Patient B] - including withholding information from the treating team at RPA, introducing [Patient B] to his own personal solicitor, and attending daily to take [Patient B's] blood sugar levels". It was further submitted that, "[a]t the same time the Respondent knew that [Patient B] was redrafting his Will, and by not charging Medicare for every home visit the Respondent knew that he was attending more often than was clinically justified". It was thus submitted that there were "several red flags that should have been apparent to the Respondent at the time - and not simply with the benefit of hindsight - that should have caused the Respondent to seek out external advice regarding his ongoing care of [Patient B]" and that such failure indicated a "significant ethical blind spot" which amounted to unsatisfactory professional conduct. 3. The Practitioner submitted with respect to this particular (at par 166) that it could only be established if the Commission could show that the Practitioner needed to seek advice and that, if the Tribunal accepted the Practitioner's evidence, there was no need for him to seek advice. 4. In its submissions, the Commission identified the matters relied upon in support of this particular. The Tribunal's rejection of the complaints on which this particular is reliant creates a substantial obstacle to the potential success of this particular. The basis of Dr Christie's opinion with respect to the particular has been substantially undermined. As the terms of the Code of Conduct which was relied upon by Dr Christie confirm, this particular involves a "grey area" of medical practice. There are no doubt cases in which the "red flags" to which the Commission referred would render the failure to seek professional advice with respect to the management of the doctor-patient relationship as unsatisfactory professional conduct. 5. There is no evidence that Patient B ever complained, to the Practitioner or anyone else, about the Practitioner's relationship with him. There is no evidence that any medical practitioner in the Practitioner's practice ever questioned any aspect of his relationship with Patient B. None of the health professionals who gave evidence critical of the Practitioner's conduct during Patient B's RPA admissions suggested to the Practitioner that he should have sought professional advice with respect to his relationship with Patient B. Nor did they suggest in their evidence that it should have been so apparent to the Practitioner that it was unnecessary to do so. 6. The Practitioner's conduct may not have been "best practice" or optimal in a number of the respects asserted by the Commission. His failure to seek professional advice about his relationship with Patient B showed a lack of insight, and questionable judgment, which fell below the requisite standard. In all the circumstances, the Tribunal is not comfortably satisfied that the Practitioner's conduct fell significantly below the requisite standard. 7. In Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Secretary of the Treasury (2014) 242 IR 318; [2014] NSWCA 112 at [46], Basten JA said: "Generally, the concept of 'reasons' requires an explanation connecting any findings of fact with the ultimate decision. Where the legal test to be applied involves an evaluative judgment, it may well not be practicable to provide a detailed articulation as to how specified (and conflicting) factors have been weighed in the balance; the scope of the obligation must recognise that constraint." 1. In New South Wales Land and Housing Corporation v Orr (2019) 100 NSWLR 578; [2019] NSWCA 231 at [75], Bell P (as Bell CJ then was) agreed with His Honour's observations. Those observations have particular application in the context of this particular and particular 10. Ultimately, as our reasons confirm, determining whether the Practitioner's conduct fell significantly below the requisite standard involves an evaluative judgement, the exposure of the reasoning process in respect of which is realistically limited. Particular 10 of Complaint 3 1. Particular 10 asserted that: "The practitioner failed to transfer the care of Patient B to another general practitioner at any time prior to 4 October 2017." 1. The evidence of Dr Christie, to which we have earlier referred in detail, identifies the circumstances which, in his opinion, required the Practitioner to either, paraphrasing Dr Christie, cease to be Patient B's "friend" and confine his dealings with Patient B to a doctor-patient relationship, or if he wished to continue his "friendship" with Patient B, terminate the doctor-patient relationship, at the latest, by the time of Patient B's second RPA admission. 2. The Tribunal's determination of the specific criticisms of the Practitioner upon which this particular is based are significant. In support of the complaint, it was submitted by the Commission (at par 105) that cross-examination of the Practitioner revealed that he did not "fully disclose the circumstances of his own daily home visits to [Patient B] to the general practitioners at his own practice". It was submitted also to be apparent that the Practitioner "understood how the palliative care team operated, and that the involvement of a palliative care doctor would not equate to daily visits". It was further submitted that if the Practitioner "generally believed" that Patient B required daily home visits from a general practitioner on a clinical basis, it exacerbated the "seriousness of his abandonment of [Patient B] without finding a general practitioner to take on his care". 3. The Commission further submitted that it was "difficult to reconcile the Respondent's insistence that nothing less than his daily attendance on [Patient B] would suffice, and his being complicit in [Patient B's] refusal to embrace the use of home nursing care and palliative care services, with his decision to cease his own visits and abandon [Patient B] to exactly those same services". 4. In response, the Practitioner submitted (at par 167) that, for the complaint to succeed, the Tribunal would have to make a finding that the Practitioner was "conflicted in his care" of Patient B. 5. The potential success of this particular is impeded by the rejection of the particulars which materially underpin it. In our view, on the evidence before the Tribunal, this particular involves a "grey area" of medical practice. Pivotal to Dr Christie's opinion was a binary approach to the relationship between the practitioner and Patient B – "doctor" or "friend". The evidence before the Tribunal does not establish that the Practitioner and Patient B were ever "friends", although they could be said to have been on friendly terms. The fact that there was more than what might be a purely doctor-patient relationship did not mean that there was a friendship between the two men. Attempting to define what the relationship was, if that be possible, is unnecessary for present purposes. It is sufficient to find that the basis of Dr Christie's opinion, the existence of a friendship, has not been established. That implies no criticism of Dr Christie, who was necessarily asked to make certain factual assumptions, which the evidence has not established. 6. As with other particulars, the Practitioner's conduct fell well short of best practice, and below the requisite standard. In all the circumstances, the Tribunal is not comfortably satisfied however that the conduct fell significantly below the requisite standard. Complaint 4 1. Complaint 4 alleged that: "The Practitioner is guilty of unsatisfactory professional conduct under section 139B(1)(b) of the National Law in that the Practitioner has contravened: (i) a provision of the Medical Practice Regulation (NSW) 2008 (now repealed) ("the Regulation 2008"); (ii) the Health Practitioner Regulation (NSW) Regulation 2010 (now repealed) ("the Regulation 2010"); (iii) the Health Practitioner Regulation (NSW) Regulation 2016 (now repealed) ("the Regulation 2016")." 1. The background for Complaint 3 was repeated and relied upon by the Commission in support of this Complaint. The particulars of Complaint 4 alleged: "1. Between approximately January 2014 and 31 August 2016 the Practitioner contravened clause 1 of Schedule 2 of the Regulation 2010 in that he failed to adequately document the following in Patient B's medical records: (a) a management plan; (b) results of any findings made in relation to treatment provided. 2. Between approximately 1 September 2016 and 4 October 2017 the Practitioner contravened clause 1 of Schedule 4 of the Regulation 2016 in that he failed to adequately document the following in Patient B's medical records: (a) a management plan; (b) results of any findings made in relation to treatment provided." 1. The Commission submitted that each particular in itself justified a finding of unsatisfactory professional conduct but that, in the alternative, when two or more particulars of the Complaint are taken together a finding of unsatisfactory professional conduct is justified. 2. In support of this Complaint, the Commission referred (at par 106) to the requirements of the Health Practitioner Regulation (NSW) Regulation 2016 that: 6 Records relating to patients (1) A medical practitioner or medical corporation must, in accordance with this Part and Schedule 4, make and keep a record, or ensure that a record is made and kept for each patient of the medical practitioner or medical corporation. 1. Schedule 4 to the Regulation records the specific requirements, which include that records must include the results of treatment (cl 1(4)(f)) and sufficient information to allow another doctor to continue the management of the patient (cl 3(2)). The Commission submitted, correctly, (at par 108) that "earlier iterations of the Regulation were in similar terms". 2. As the Commission made clear (at par 109), this Complaint comprises two parts. The first referred only to medical records from consultations at the practice which were made on a computer and were submitted to have "limited information regarding the management of [Patient B's] many comorbidities, and do not record in what way results of pathology tests are used to change and maintain existing treatments". The second part of the Complaint was submitted (at par 110) to relate to consultation records from 1 September 2016 to 4 October 2017 and to encompass practice records in which "the same deficiencies can be found" and the handwritten records that were not maintained at the practice but which the Practitioner took home with him throughout the period of home treatment. 3. The Commission relied on Dr Christie's opinion that (Exhibit HCCC1, Tab 15, p 17): "… the notes are often poorly legible, the documented findings appear to me to be disorganised, and the management plan is not clearly articulated in each entry. I believe that if the notes had been more clearly organised and set out, with a clear attention to a problem list, relevant positive and negative findings, and a plan of management, the notes would show far more clearly that many of them did not actually contribute to [Patient B's] management." 1. It was submitted (at par 111), correctly, that record keeping is "an essential part of patient care, both for the primary treating practitioner, and for other practitioners who may take over a patient's care on an occasional, temporary or permanent basis". 2. The omissions from the records of the Practitioner were submitted (at par 113) to be "endemic, and are not isolated to this patient, as the Respondent's admission of Complaint 2 shows". 3. The Practitioner (at par 168) accepted "this conduct, although he does not accept all the particulars of the Complaint". The Practitioner relied upon his evidence on 22 July 2022, which revealed (Tcpt, 22 July 2022, p 50 line 46 - p 52 line 7): "Q. But you accept don't you that for the period between 6 July and 5 October, you had those (handwritten notes which were scanned in and added to a patient's file) in your personal possession? And that they were not accessible to any other doctor who might have had to step in to take care of Patient B? A. Well, yes. It was in my possession. But had someone asked. Q. I'm sorry? A. Had someone asked? Q. Had someone asked? Did you after 5 October become aware that a general practitioner had been secured for [Patient B]? A. Yes, [Patient B] told me that. Q. Was that in one of those telephone conversations? A. Correct. Q. Did you offer to make those handwritten notes available to that new GP? A. I did. Q. To [Patient B]? A. Well, he refused to tell me who the GP was so. Q. Did you offer them to the palliative care team? A. No. Q. Did you send them through to the palliative care team? A. No. Q. Do you accept that in keeping records in that way for [Patient B] that was entirely inadequate record keeping? A. I don't think it is up to me to decide if it's entirely inadequate but the notes were there. Anyone could ask for them and I would have, after obtaining consent from the patient, passed them on. Q. Is that your understanding of the requirements under the record keeping regulations and/or the Code of Conduct? That you have them available to pass on on request? A. I think they should be available to, well, they need to be available. I'm not sure about the finer details of their availability but if it's requested and there is consent then it gets passed on. We have a form that patients sign when they want - when they want their files transferred to us and we often receive letters of request of medical notes from other practices and a document is always signed by the patient giving consent for us to transfer those notes to them. Q. Between 7 July and 21 September 2017, [Patient B] didn't want to transfer his notes to anyone, did he? A. I don't think I specifically asked. Q. I'm sorry? A. I don't think I specifically asked. There was no - there was no communication for him to send his notes anywhere. Q. But you were his treating practitioner at the time? A. Correct. Q. During that period of time, do you accept that the way in which you kept those records was not in keeping with the requirements of either the record keeping regulation or the code of conduct? A. I - I can't comment on that. I'd have to look at those requirements. But the notes were secure. And they were freely available on request." 1. As the terms of the Regulations upon which this particular is based make clear, the fundamental requirement was to "make and keep a record, or ensure that a record is made and kept" for Patient B. Why that is so is not in doubt. As is also not in doubt, the records need to be readily available in order that they may be expeditiously accessed by either the treating medical practitioner or others who are, or become, charged with the care of the patient. With respect to the Practitioner, his reliance upon no-one ever having asked him for the records, and his suggestion that he would have passed them on if anyone had asked for them, misconceives his obligations and the reasons for them. Properly, the Practitioner admits that the records which he kept failed to adequately document the important matters to which the Regulation referred and upon which this particular is based. 2. The Tribunal is comfortably satisfied that this particular is made out. Unlike other grounds, this Complaint does not invoke the standard reasonably required of the Practitioner. It is, on the evidence before the Tribunal, objectively made out. Complaint 5 1. Complaint 5 alleged that the Practitioner was guilty of professional misconduct pursuant to s 139E of the National Law in that the Practitioner has: "i. engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration, and/or ii. engaged in 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 the suspension or cancellation of the practitioner's registration." 1. The Commission relied on the background to Complaints 1 and 3 in support of this Complaint. The particulars of the complaint alleged: "1. Complaint 1 particulars 5 and 6 and Complaint 3 particulars 1 to 6, and 8 to 10 are repeated and relied upon individually. 2. Complaints 1, 2, 3 and 4 and the particulars thereof are repeated and relied upon cumulatively." 1. In support of this Complaint, the Commission referred (at par 117) to the decision of the Court of Appeal in Hampshire v Health Care Complaints Commission [2021] NSWCA 283 ("Hampshire") in which the Court of Appeal accepted, at [47], the statement by Basten JA in Chen v Health Care Complaints Commission [2017] 95 NSWLR 334; [2017] NSWCA 186 at [20] that there was: "no category of unsatisfactory professional conduct which is not capable, depending on the circumstances, of giving rise to professional misconduct and hence engaging the power of either suspension or cancellation of registration. The only requirement is that it be 'sufficiently serious' to justify such an order, a characterisation which must depend upon an evaluative judgment made by the Tribunal. Some, perhaps all, categories include conduct which may reveal a defect of character as to which the Tribunal may conclude that the person should not be allowed to practice his or her profession unless at some future date the practitioner is able to satisfy the Tribunal that the defect has been overcome. Incompetence or inadequate care may in some circumstances be remediable by specific steps; in other circumstances the Tribunal may be concerned that the carelessness, for example, is such as to cast doubt on the suitability of the person to practise medicine. Each of the criteria for cancellation or suspension may be analysed in this way. Each case will depend upon an evaluative judgment to be made by the Tribunal as to the nature and seriousness of the conduct. It follows that the legislative scheme is inconsistent with the implication of the abstract condition." 1. The Court of Appeal said in Hampshire at [57] that: "… The Tribunal's finding that the conduct the subject of the boundary violation warranted the suspension or cancellation of Dr Hampshire's registration and therefore amounted to professional misconduct was an evaluative judgment well open to the Tribunal." 1. The Commission referred (at par 118) to the judgment of Leeming JA in Health Care Complaints Commission v Robinson [2022] NSWCA 164 in which His Honour said, at [35], that the "seriousness of the conduct may take colour not only from the acts or omissions in question but also from the circumstances in which they occurred". His Honour further said that "conduct was undertaken for an improper purpose may be a very significant factor in determining whether suspension or cancellation is justified". His Honour also said, at [37], that there was "force" in submissions on behalf of the Commission in that case that examples of the "sorts of issues" that might arise in (at [36]): "… characterising the nature of conduct included: 1. the practitioner's state of mind at the time of the impugned conduct (e.g. whether conduct was deliberate or inadvertent); 2. any knowledge the practitioner had of particular vulnerabilities in a patient; 3. the risks of harm that the conduct was apt to create; 4. the practitioner's knowledge, skill and training; 5. the disciplinary history of the practitioner, as repeated inappropriate conduct may be treated as being of a more serious nature than isolated inappropriate conduct." 1. It was submitted (at par 119) to be important that the Tribunal have particular regard to the Complaints with respect to Patient A which the Practitioner admitted. It was submitted (at pars 120-121), correctly in the Tribunal's view, that: "120 The Respondent's willingness to overprescribe, combined with his failure to identify the risks of opioid dependence and abuse is a serious matter. The Respondent has practised since 1991, and yet engaged in conduct that not only failed to manage the patient's pain, but put the patient at risk of harm, or facilitated existing harmful behaviour. 121 A drug-addicted patient with pain management issues is a vulnerable patient. The Respondent's length of time in practice means that he should have been equipped with sufficient skill and experience to manage this patient appropriately. His flagrant failure to do so involves professional misconduct." 1. Albeit on the assumption that particulars 1 to 6 of Complaint 3 would be made out, the Commission submitted (at par 122) that if the Tribunal was satisfied that the Practitioner "engaged in the conduct so as to enhance his prospects of benefiting from [Patient B's] Will, or in discharge of an agreement, then each aspect of his conduct is plainly professionally misconduct". If the Tribunal had made findings in those terms, it would be difficult not to find professional misconduct comfortably established. 2. The Commission submitted, in the alternative, that even if the Tribunal was not satisfied that "this was the motivation behind the Respondent's conduct, the conduct itself was objectively serious and amounts to professional misconduct". The Commission made further submissions which were also predicated on the Tribunal making findings in the terms of the particulars of the Complaint. 3. The Commission submitted (at par 122) that there could be no justification "for advocating on behalf of a patient rather than collaborating with professional colleagues". In view of the Tribunal's findings, that submission resonates. 4. In view of the findings of the Tribunal, the Commission's submissions (at par 123) lack the necessary foundation. It was ultimately submitted that, either individually or in conjunction, the conduct of the Practitioner constituted professional misconduct. 5. The Practitioner submitted that the proven conduct of the Practitioner could not constitute professional misconduct, either when considered individually or in conjunction. 6. In order to better appreciate the Tribunal's decision with respect to this issue, it is appropriate to record the particulars of the various Complaints which have been proved or admitted. Complaints 1 and 2 have been admitted by the Practitioner. Particulars 3 and 5(b) of Complaint 3, and Complaint 4 have been established. 7. All the Commission's Complaints with respect to Patient A (Complaints 1 and 2) were admitted by the Practitioner. Nothing asserted on behalf of the Practitioner militates against finding that, cumulatively, those findings would, without more, constitute professional misconduct. In view of the Practitioner's admission of Complaints 1 and 2, and each particular of them, and the fact that the hearing was almost entirely concerned with the Complaints with respect to Patient B, the objective seriousness of the matters admitted with respect to Patient A ought not be overlooked in the present context. That conduct occurred over a period of almost 9 years, and involved repeated unsatisfactory professional conduct involving a patient with serious health issues, and inappropriate prescribing of Schedule 4D and Schedule 8 drugs, which, as the Commission submitted, exposed Patient A to a significant risk of harm. 8. Dr Christie's expert opinion evidence (Exhibit HCCC1, Tab 13, pp 4-8), which was not challenged, either in cross-examination of Dr Christie or in any other way, provides an adequate foundation for finding the Practitioner guilty of professional misconduct in reliance upon the admitted particulars of Complaints 1 and 2. 9. Nothing advanced on behalf of the Practitioner militates against finding him guilty of professional misconduct in reliance upon Complaints 1 and 2. The Practitioner said in his first statement (Exhibit R2, par 181) that in hindsight "and as a result of the courses I have now done, I can see that [Patient A] did exhibit drug seeking behaviour". The Practitioner further said (at par 182), "I can now see I was naïve and trusting in my approach. I should have picked up [that] he was in fact a person who had an addiction to prescription medications. I can now see he was opioid dependent". Curiously, in view of the admissions made to these particulars, the Practitioner attempted (at pars 199-223) to defend his conduct. 10. Particular 3 of Complaint 3 involves unsatisfactory professional conduct in relation to the Practitioner's dealings with Patient B's treating health professionals during the latter's second RPA admission. Although in isolation not constituting professional misconduct, that conduct provides material support for finding the Practitioner guilty of professional misconduct. Conduct of the kind which has been proved in this case is more than discourteous to the specialist medical practitioners against whom it was directed, it is completely unprofessional, and risks deviating them from their already demanding duties to the potential detriment of their patients. As we have recorded earlier, asking questions or conveying relevant information about a patient is permissible. Trying to tell treating specialists how to do their jobs is not. 11. Complaint 4, which involves unsatisfactory clinical records would not, in isolation, constitute professional misconduct. The importance of adequate clinical records was explained by Dr Christie. The practitioner's failure to maintain adequate clinical records could have further compromised Patient B's already frail health. The Practitioner's proven conduct provides material support for finding him guilty of professional misconduct. 12. If we are wrong, and the conduct admitted pursuant to Complaints 1 and 2 is not sufficiently serious to constitute professional misconduct, in conjunction, the findings of unsatisfactory professional conduct comfortably satisfy the Tribunal that the Practitioner is guilty of professional misconduct. Postscript 1. Shortly prior to the delivery of the Tribunal's decision, the Registry was advised by the parties that the Supreme Court had delivered its judgment in the proceedings involving Patient B's Will(s) in which the Practitioner was a party, which was reserved when the hearing of these proceedings concluded. Neither party suggested that the Tribunal should receive the Supreme Court's judgment. The Registry informed the parties that the Tribunal would not receive, or otherwise read or rely upon the Supreme Court's judgment. Orders 1. The Practitioner is guilty of unsatisfactory professional conduct. 2. The Practitioner is guilty of professional misconduct. 3. The proceedings are to be listed for hearing to determine the orders which are necessary to protect the health and safety of the public. ********** 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: 10 July 2023