Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Bastas [2025] NSWCATOD 24 Hearing dates: 11 – 13 February 2025 Date of orders: 10 March 2025 Decision date: 10 March 2025 Jurisdiction: Occupational Division Before: A Balla ADCJ, Principal Member Dr M Walker, Senior Member Dr S Cowap, Senior Member M Christensen, General Member Decision: (1) In respect of Complaint One, Particulars 1-12, Dr Bastas is guilty of unsatisfactory professional conduct. (2) In respect of Complaint Two, Dr Bastas is guilty of unsatisfactory professional conduct. (3) In respect of Complaint Three, Dr Bastas is guilty of professional misconduct. Catchwords: OCCUPATIONS – Medical Practitioners – Misconduct and Discipline – Unsatisfactory Professional Conduct – Professional Misconduct Legislation Cited: Health Practitioner Regulation National Law (NSW) Health Practitioner Regulations (New South Wales) Regulation 2010 Health Practitioner Regulations (New South Wales) Regulation 2016 Cases Cited: Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336. Chen v Health Care Complaints Commission [2017] NSWCA 186 Health Care Complaints Commission v Bainbridge [2018] NSWCATOD 169 Health Care Complaints Commission v Daniel [2022] NSWCATOD 104 Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 Lucire v Health Care Complaints Commission [2011] NSWCA 99 Parker v Comptroller-General of Customs [2009] HCA 7 R v Byrnes (1995) 183 CLR 501 Re A Medical Practitioner and the Medical Practice Act, NSWMT, 3 September 2007, unrep Texts Cited: Medical Board of Australia, Good Medical Practice: A Code of Conduct for Doctors in Australia (at March 2014) Medical Board of Australia, Sexual Boundaries; guidelines for doctors (at 28 October 2011) Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Dr Maria Bastas (Respondent) Representation: Counsel: D Fuller (Applicant) J Bennett (Respondent) Solicitors: Health Care Complaints Commission (Applicant) Optic Lawyers (Respondent) File Number(s): 2024/00288894 Publication restriction: Pursuant to s 64(1) of the Civil and Administrative Tribunal Act 2013 (NSW), the disclosure to any person or entity of: 1. the names, addresses or any other identifying information of: (a) The patient listed in the Schedule to the Amended Complaint; (b) Witness A whose signed statement dated 27 November 2024 has been tendered as part of Exhibit A; and (c) Witness B whose signed statement has been tendered as Exhibit B in the proceedings; and 2. the address of the Respondent's mother is prohibited. REASONS FOR DECISION 1. The Applicant (the HCCC) asks us to make disciplinary findings and orders against the Respondent, Dr Maria Bastas. The HCCC's application arises out a complaint made by a patient. Orders have been made for the identity of that patient to be suppressed. We will refer to him as the patient. 2. It is common in this jurisdiction for a complaint against a medical practitioner to be determined in two stages. All issues other than the making of any protective Orders are determined by the Tribunal after a Stage 1 hearing. The parties are then given the opportunity to adduce additional evidence in relation to the appropriate protective Orders (if any) before the complaint is relisted for a second, Stage 2, hearing. This matter proceeded before us as a Stage 1 hearing. Dr Bastas 1. Dr Bastas was first registered as a medical practitioner in Australia in 1984. 2. Dr Bastas has worked as a general practitioner in various settings including solo practice. Since December 2005, Dr Bastas has mainly worked in group practice at Marrickville Metro Medical Centre (the Centre). The patient 1. The patient is now 50. He first attended the Centre on 14 June 2014. Another doctor at the Centre diagnosed the patient as having a major depression with an uncertain prognosis. 2. The patient first consulted with Dr Bastas at the Centre on 6 August 2014. The notes record a further 22 consultations with Dr Bastas up until 20 October 2022. Legal Principles 1. These proceedings are brought under Part 8 of the Health Practitioner Regulation National Law (NSW) (the National Law). Section 3B provides: 3B Objective and guiding principle [NSW] In the exercise of functions under a NSW provision, the protection of the health and safety of the public must be the paramount consideration. 1. The HCCC's Application contains three separate Complaints. The HCCC bears the onus of proof of each Particular of each Complaint. We have made our findings on the basis that each Particular must be established to the civil standard (on the balance of probabilities) to the level of comfortable satisfaction as described in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336. 2. Complaint One alleges that Dr Bastas is guilty of unsatisfactory professional conduct as defined in s 139B(1)(a) of the National Law. That section defines unsatisfactory professional conduct as conduct which demonstrates that the practitioner's judgement in the practice of medicine is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. 3. Determining whether conduct is significantly below a reasonable standard requires us to make an objective assessment with reference to the standards of the profession generally: Lucire v Health Care Complaints Commission [2011] NSWCA 99 at [82] per Basten J. Guidance on whether a departure from that standard is significant can be taken from the established principle that the term "may in law be taken to mean not trivial, of importance or substantial": Re A Medical Practitioner and the Medical Practice Act NSWMT 3 September 2007, unrep at [12]. The Tribunal may apply the specialist expertise of the Panel in making this determination (Health Care Complaints Commission v Bainbridge [2018] NSWCATOD 169 at [16]). 4. Complaint One also alleges, in the alternative, that Dr Bastas is guilty of unsatisfactory professional conduct as defined in s 139B(1)(l) of the National Law. That section defines unsatisfactory professional conduct as improper or unethical conduct relating to the practice of medicine. 5. The terms "improper conduct" and "unethical conduct" are not defined in the National Law. They should be given their ordinary meaning: Health Care Complaints Commission v Daniel [2022] NSWCATOD 104 (at [16]-[18]). 6. The relevant ordinary meanings of improper include "not in accordance with truth, fact, reason or rule; abnormal, irregular; incorrect, inaccurate, erroneous, wrong": Parker v Comptroller-General of Customs [2009] HCA 7. If Dr Bastas' conduct was not in conformity with standards of professional conduct and practice it may be regarded as improper: R v Byrnes (1995) 183 CLR 501 at 514-515. 7. Unethical conduct is arguably a more serious matter than improper conduct. Unethical is defined in the Macquarie Dictionary, firstly, as meaning immoral or contrary to moral precepts and, secondly, as relating to contravention of a professional code of conduct. Outline of the Complaint 1. The patient says that, at a consultation with Dr Bastas in mid 2015 they exchanged mobile numbers. They met shortly afterwards at a café and the relationship became sexual. Dr Bastas ended the relationship after which the patient became depressed and sought treatment. He then decided to make a formal complaint. 2. There are also Complaints about the quality of Dr Bastas' records relating to the patient and inappropriate prescribing. 3. The HCCC asks us to find Dr Bastas guilty of unsatisfactory professional conduct by reason of the conduct in Complaints One and Two. 4. The HCCC also asks us in Complaint Three to find that the conduct established in either or both Complaints One and Two amounts to professional misconduct, even if the evidence of Dr Bastas is preferred to the evidence of the patient. 5. Dr Bastas admits that she did, on a few occasions, meet the patient at places other than the Centre, including at his home and her home. 6. Dr Bastas: 1. denies her relationship with the patient was sexual; 2. accepts that certain aspects of her interactions with the patient between July 2015 and mid-2017 constituted an inappropriately close personal relationship; 3. denies she inappropriately prescribed medication to the patient; 4. admits certain deficiencies in record-keeping but denies they are unsatisfactory professional conduct; and 5. denies that her conduct, either individually or collectively, amounts to professional misconduct. 1. The HCCC relies on the expert opinion of Dr Golding. Evidence of the patient 1. In relation to his relationship with Dr Bastas, the patient made a statement which was in evidence and was cross-examined. 2. We observe that the patient, as was the case with most of the people who gave evidence, was uncertain as to the dates on which some events occurred. 3. The patient said that his psychologist, Ms Brown, had asked him to see a doctor for a "plan". He went to the Centre on 14 July 2015 and was seen by Dr Bastas. He did not remember, when giving evidence, that he had consulted Dr Bastas once before on 6 August 2014. The Centre's records show that between 16 June 2014 and 14 July 2015 the patient had attended a few times and been seen by other doctors. 4. The patient asked Dr Bastas for a referral to Ms Brown and a Mental Health Care Plan. He said he noticed that Dr Bastas was quiet so he asked if she was alright. Dr Bastas told him that she had been going through a break up. He invited her to call him to talk about it and they exchanged phone numbers. 5. The patient says that either that evening or the next, Dr Bastas sent him a text message asking him to meet her at her favourite Greek cafe or cake shop. She bought two coffees which they drank in the back of her car. They then made out and had sex. 6. The patient says that this was the start of their relationship. They texted each other regularly and had sex two or three times a week. They usually met after she finished work. 7. The patient says that their relationship was really full on for the first six months to one year. He fell in love with her and she would say she missed him. She told him he was good looking and that he should find someone younger as she was too old. He told her that she was more experienced and mature. She made him feel comfortable, nurtured him and reassured him. 8. Two or three months into the relationship, they started having sex on the bed in her consulting room. They performed unprotected oral sex and sex. They had to be quiet so the doctor nearby did not hear them. 9. The patient said he would just turn up to the surgery or send her a text. He would wait and she would signal that it was okay. Dr Bastas added his file to the files of other patients who were waiting. 10. The patient said he called Dr Bastas at work many times. She would see him even when the receptionist had told him that Dr Bastas could not see any more patients. The patient said he got nervous because he thought the receptionist was getting suspicious. 11. The patient said that every time he visited Dr Bastas, she gave him chocolates which she had been given by patients. 12. The patient said that Dr Bastas would drive from her home to her mother's house and park her car in her mother's garage. She would leave her car and dog there, then ride a bike to work. 13. The patient said that he would drive to the lane behind Dr Bastas' mother's house and wait for her after she had finished work. She would arrive between about 6pm and 7pm and they would have sex in random back streets or in her or his car. She would then say she had to go home and cook for her kids, while he wanted to spend more time with her. 14. The patient said they also had sex in the car in the Council car park in Petersham and at Leichardt. Another time they had sex at Macquarie University, in the back fields. 15. The patient said that, in the middle of their relationship, Dr Bastas invited him to her house. He arrived at lunch time and they got drunk on red wine. She showed him around her huge house which had a gym, a big pool table and bar. It had fountains. She had a garage full of shoes, he estimated 300 pairs. The patient said he had to be careful because her ex-husband's house could be seen from her house. They had sex in the lounge room and then had sex again and slept upstairs. 16. The patient said he only went to Dr Bastas' house a few times. Sometimes he went before she went to work. One time he turned up unannounced and Dr Bastas freaked out and gave him a hand signal to go. 17. When they talked about this later on, Dr Bastas said to him 'if anything bad happens I will do something bad'. He thought she meant she would hurt herself. She called him a few times when she was upset and he would reassure her that he wasn't going to say anything. 18. Dr Bastas also worked at a practice in Balmain. He said he had met her there a few times. 19. The patient said they were also looking at going on a holiday to Melbourne so that they would not been seen together. It didn't happen and they didn't discuss it again. 20. Once they went to Auburn and Dr Bastas bought him food. She thought she saw her ex-husband and was worried he might have seen them together. It turned out it wasn't him. 21. In about September 2015, the patient asked Dr Bastas to get him a nice aftershave for his birthday and she bought him Armani aftershave in a gift box with other stuff. 22. The patient said that, in 2015 or 2016, he bought Dr Bastas black tight jeans as a gift and gave it to her at her place. He took pictures of her posing in the lounge room. He also texted a picture to her wearing the black pants. 23. The patient said that, in 2017, he asked Dr Bastas for $500, which she gave him. He said he would pay her back and she said not to worry about it. 24. On another occasion, Dr Bastas messaged him to say she had been admitted to hospital because she thought she was having a heart attack or stroke. The patient offered to come to see her but she told him not to because her children were there and she was not ready to introduce him to them. 25. The patient said that in about 2018, Dr Bastas came to his place. She had not wanted to come because she had started distancing herself from him. She ordered pizza from his favourite pizza shop and they had sex in the lounge room on the floor. 26. The patient said that in late 2017 and early 2018 their relationship slowed down and they didn't see each other much. The last time they had sex in the car was in 2017. He sent texts now and then. She would text him, but only if he sent a text first. She would say that she needed time and space and was worried about her job and family. He didn't want to pressure her and said not to worry, he wouldn't say anything. It was on and off. It took three or four times before it was finally over. He would say he wanted to see her and she would say 'Ok then'. 27. The last time he saw her was at the surgery in about 2019. She gave him a hand signal indicating that she was busy and could not see him. 28. The patient said that, in 2019, he became depressed and started to drink and smoke. 29. The patient said he did not say anything about the relationship to the psychologist Ms Brown, because he did not want Dr Bastas to lose her job or commit suicide or hurt herself. 30. In 2019 or 2020, the patient sent a text to Witness A, a psychiatrist he had met in 2018 at the courts when he had been working for the Aboriginal Legal Service as a support worker. He trusted her because they were both Indigenous. The patient said that after he gave Witness A a full history, she told him to get legal advice. 31. The patient said he hesitated because of the conversation in which Dr Bastas had talked about hurting herself. When he did finally consult a solicitor, the solicitor suggested he make a complaint to the HCCC. 32. The patient said that, in 2016 or 2017, he was living with Witness B and told him about Dr Bastas. 33. In 2022 the patient had a few sessions with a psychologist, Ms Day. He told her about his relationship with Dr Bastas. 34. The patient sent his complaint to the HCCC on 6 October 2022. Evidence of Dr Bastas 1. Dr Bastas also made a statement and was cross examined. 2. Dr Bastas agreed that, at her second consultation with the patient on 14 July 2015, he asked for a Mental Health Care Plan and a referral to see a psychologist Ms Brown. She also treated him for a skin fungal infection and prescribed Metrogyl which, she presumes, was for a Gardnerella infection which seemed to be a recurring problem. 3. At one of his early consultations, the patient told her he found it easy to communicate with her. He wanted her to provide him with counselling and asked for her mobile phone number. Dr Bastas says that, while it was not her usual practice to provide patients with her mobile phone number, she reluctantly gave it to him because she was concerned about his welfare, anxiousness and paranoia. She genuinely believed something must have been really wrong and he just needed some help. 4. Dr Bastas says that afterwards the patient contacted her, mostly by SMS, and she would reply. They discussed the various issues that he was experiencing, or she received SMS requests from him to meet in person. He would contact her to arrange to see her at the practice, as he did not want to be in the waiting room too long due to his anxiety. She would add his name to the waiting room via Pracsoft. 5. Later the patient had asked Dr Bastas to call him and check up on him to make sure he was alright, even if he had not called first. Dr Bastas said she did that a few times but then stopped. 6. Dr Bastas said the patient told her of the following issues which were affecting his mental health: 1. He had a poor relationship with his mother; 2. He left Townsville after an ex-girlfriend who was a policewoman had pulled out a gun on him. She had assaulted him but Dr Bastas was not sure if it was physically or verbally; 3. He had been assaulted by a group of men with baseball bats; 4. He had been seeing a doctor romantically in the recent past but she had ended the relationship. Dr Bastas wasn't sure whether the patient was being honest. 1. Dr Bastas said she met the patient twice outside the practice in a car. Shortly after a consultation on 15 July 2015, the patient asked her to meet him in a car park because he was too anxious to sit in the waiting room. Dr Bastas said she agreed as it was in the nature of a home visit. She sat in the front seat of the car in a spot busy with people and traffic. They had a conversation, mainly about his anxiety, for 30 minutes, after which she got out of his car and left. 2. Some weeks later she agreed to the patient's request to meet at a nearby cake shop to talk. They ordered two coffees and, as the patient didn't try to pay, she paid. They sat in her car which was parked on a busy road in peak hour traffic. He spoke about his current difficulties with his mental health and they discussed coping strategies. After about 45 minutes, the conversation ended and he left. 3. In late 2015 or early 2016, the patient had asked Dr Bastas to loan him $500 for his rental bond. Dr Bastas said she reluctantly agreed but made it clear it had to be repaid. She felt sorry for him and wanted to help him. When she asked him to repay it, the patient said he did not have any money. She accepted his offer to clean the windows of her home instead of repaying the loan. He came to inspect the windows and she gave him a tour of her home, during which she told him that her ex-husband lived in the adjoining house. While the patient was there, he gave her a pair of trousers saying it was for Christmas, which she thought was odd as Christmas wasn't for another three months. She accepted them to be polite. He asked if she had a gift for him, adding that no one ever gave him gifts. She felt sorry for him and gave him a men's perfume which belonged to her son. Dr Bastas denies that she has ever purchased gifts for the patient. He asked for a drink and she poured him a glass of wine. She said she may have had one glass of wine but did not get drunk. He asked to take a photograph with her, he took it and she has never seen it. 4. The patient left after an hour. This was the only time that he came to her home with her permission. He did however come one other time, she was caught by surprise and thought it was completely inappropriate. 5. On occasions during consultations, at the patient's request, she gave him chocolates that had been given to her by other patients. 6. On 3 August 2017 Dr Bastas experienced a mini-stroke and was hospitalised. The patient texted, asking to see her at the Centre, she replied that she was unavailable. After several text messages, he called and wanted to know why she was unavailable. She thought if she told him she was in hospital he would give her space. However, he wanted to visit her, and she said no. This was not because she was concerned about introducing him to her children, but because it would have been very inappropriate. 7. Dr Bastas said that on 2 October 2016, the patient asked her to come to his home to talk through his various issues. She considered this a home visit. The patient said he was hungry and asked her to order him a pizza. When it was delivered, he did not offer to pay so she did. She does not remember eating any of the pizza and the patient said his flatmate would have the leftovers. She stayed for 45 minutes while he ate his pizza and he talked about how he was feeling. 8. Dr Bastas says she has never kissed the patient, never engaged in a sexual relationship with him, never had any romantic or sexual interactions with him and has never made any attempts to have such interactions. On 12 July 2020, at the last consultation, the patient asked if he could hug and kiss her, she said she refused and asked him to leave. 9. Dr Bastas denies ever having had a discussion of a romantic or sexual nature with the patient, other than in the context of therapeutic consultations about his relationship with his partner. 10. Dr Bastas acknowledges that she engaged in an inappropriate close personal relationship with the patient from July 2015 until mid 2017. From then until mid 2020 the patient did occasionally contact her but she did not consider their relationship as close and personal during that later period. 11. Dr Bastas estimates that she met with the patient on five occasions outside of appointments at the practice. Earlier complaints 1. Clause 5 Sch 5D of the National Law relevantly provides: (1) A … Tribunal may receive and admit on production any of the following, as evidence in any proceedings— … (c) the judgment and findings of a tribunal (whether or not of this jurisdiction); … where the Committee or the Tribunal is of the opinion that the judgment, findings, verdict, certificate, decision, determination or evidence is relevant to the proceedings. … (2) If the … Tribunal is of the opinion that evidence admitted under subclause (1) or (1A) is capable of establishing that a registered health practitioner has engaged in conduct that is sufficiently similar to the conduct alleged against the practitioner in the proceedings, it may rely on the evidence in-- (a) making a finding about a registered health practitioner in the proceedings; or 1. A complaint against Dr Bastas came before a Medical Tribunal on 7 December 2006. 2. The gravamen of the Complaints were that: 1. Dr Bastas admitted she failed to maintain a drug register despite having taken possession of quantities of drugs of addiction. 2. Dr Bastas admitted she had contravened the relevant legislation because she had practised as a doctor without having professional indemnity insurance. 3. Dr Bastas developed a personal relationship with Patient A which became sexual. Dr Bastas admitted they had a relationship but denied it was sexual. Dr Bastas said she became pregnant as a result of artificial insemination and that the donor was Patient A. 4. Dr Bastas admitted that she prescribed the patient drugs of addiction being morphine, pethidine and oxycodone. 5. Dr Bastas admitted that Patient A's medical records were inadequate. 6. Dr Bastas admitted that she prescribed anabolic/androgenic steroids to another patient, Patient B, contrary to recognised therapeutic standards, without exercising responsible medical judgment as to whether it was appropriate to issue such prescriptions; and/or when she knew or ought to have known that the drugs so prescribed were being, or were likely to be, abused. 7. Dr Bastas admitted that Patient B's medical records were inadequate. 8. Dr Bastas admitted that a third patient, Patient C, who was the flatmate of Patient A, was her patient when she prescribed Patient C various drugs of addiction including morphine and pethidine for no clear therapeutic purposes. 9. Dr Bastas admitted that she had prescribed codeine phosphate, morphine and pethidine for a fourth patient, Patient D. 1. In a statement, Dr Bastas explained that she had become stressed following the break-up of her marriage in 2000. After an argument with her husband, she received a telephone call from Patient A and opened herself up to him. A friendship developed and he would occasionally act as a receptionist at the Centre. She told the Tribunal that her friendship with Patient A had completely clouded her judgment at a very vulnerable time in her life. He refused to see another doctor. She prescribed morphine for him because Patient A appeared to be in pain, was very demanding and she was frightened of him because he had threatened to take her to court and make sure that she lost her licence to practice medicine. She said they did not have a sexual relationship and always understood him to be a homosexual. 2. The Tribunal found that the relationship between Dr Bastas and Patient A was far more intimate than that described by Dr Bastas in her statement. 3. Dr Bastas gave evidence before the Tribunal. She said Patient A would stay at her place about once a week. It was a co-dependant association because he was bedridden a lot of the time and in pain and she felt as though she was a form of carer. 4. She had discussed personal issues with Patient A and told him about her fertility problems. He said he wanted to have a child with her and offered to donate his sperm so she could conceive his child. She accepted the offer and became pregnant in March 2000 but miscarried. 5. The Tribunal did not determine one ground of the complaint, the details of which are not mentioned in the decision. Dr Bastas claimed privilege "against any evidence tending to incriminate her" in a criminal offence which the Medical Tribunal accepted and then found that the HCCC had not proved that particular. 6. The Tribunal found that Dr Bastas' conduct in the remaining particulars was inconsistent with the proper discharge of the duties of a doctor in the practice of medicine. The conduct was serious. However, the Tribunal accepted expert evidence that she had suffered depressive episodes in her childhood and that later, in the context of marriage difficulties, she had undergone psychiatric care for a fairly severe depressive episode causing extraordinarily poor judgment so that at the relevant times Dr Bastas had suffered from an impairment. Dr Bastas was reprimanded and conditions were placed on her registration. Those conditions were gradually removed. Resolving inconsistencies in the evidence 1. The evidence of the patient and Dr Bastas as to their descriptions of their relationship cannot be reconciled. 2. We now turn to consider the reliability of the evidence called by the HCCC to establish the Complaints, bearing in mind what we have already said about the onus of proof. The reliability of the evidence of the patient Inconsistencies in the evidence of the patient 1. As discussed in more detail later in these Reasons, Dr Bastas' notes show that she did prescribe various medications for the patient from time to time. The patient said that he did not have any health problems, he only went to see Dr Bastas at the Centre to have sex with her. She gave him the prescriptions so that he had something to walk out with after a consultation because he was concerned that the reception staff were getting suspicious. 2. However, on cross examination, the patient agreed that Services Australia's records showed that various pharmacies had supplied some of the medications prescribed for the patient by Dr Bastas. 3. On re-examination the patient said that he had had the prescriptions filled for the future, just in case. Sometimes he used them if he had an infection, otherwise he threw them out. Witness B 1. Witness B made a statement and was cross examined. 2. Witness B grew up with the patient and described him as having been a happy go lucky person. In 2017 Witness B went to live with the patient. He noticed that the patient was drinking a lot and taking some drugs. Sometimes, when he was drunk, the patient would tell him about his problems with a woman he was currently seeing, who was his general practitioner. The patient did not name her. Witness B said that the patient told him about what they were doing and that they "did it" at her office and in her car. Witness B got the impression that the patient was having a sexual relationship with the person. 3. Witness B added that, in their culture, this is considered men's business - personal information about the opposite sex is not shared with other people. This meant the patient could not tell women in his immediate family. 4. Witness B moved away and has not since discussed the matter in any detail with the patient. 5. On cross examining Witness B he was asked about his statement that he had the "impression" that they were having a sexual relationship. He could not recall whether the patient had said that they were. 6. On re-examination Witness B said he had formed that impression because the patient had mentioned that they had been doing it in certain places. 7. On balance we are satisfied that the evidence of Witness B is that the patient made contemporaneous statements of having a sexual relationship with a general practitioner in 2017. Witness A 1. Witness A is a psychiatrist, and her statement is in evidence. 2. Witness A met the patient in 2018 and they have sporadically stayed in contact, mostly by text message, as friendly acquaintances. 3. Witness A believes that the patient felt comfortable talking to her because of her profession and their shared Indigenous culture. She felt protective of him because she had the sense that he was vulnerable, in some ways "lost", and he could be naive in his trust of people's opinions. 4. Between May and December 2020, the patient disclosed to Witness A that he was or had been in a sexual relationship with his general practitioner. He did not name her. He said it was happening at lot at her office at the end of the day when everyone else had left. He said they couldn't go to her place because she had children living with her. At some time he told her he believed that it had been, to his eyes, a serious relationship and he was sad that he was not being taken seriously and was "on the side''. 5. Witness A formed the view that the patient had a lot of shame and anxiety about the relationship and was distressed when speaking about it. In a later conversation the patient mentioned getting a lawyer and she suggested he consider contacting AHPRA. 6. Attached to Witness A's statement are screen shots of SMS messages she exchanged with the patient. A message dated 17 December 2020 refers to "that doctor I told you about". 7. We are satisfied that the evidence of Witness A is consistent with the patient having made statements about having a sexual relationship with a general practitioner at around the time the relationship had ended and before the patient made a complaint. Ms Day 1. Ms Day is a psychologist. The patient was referred to her for treatment in 2021. Her records are in evidence. 2. The patient told Ms Day on 20 May 2021 that he believed the crux of his mental health issues related to a relationship he had with a doctor in 2015-2016. The ending of the relationship had recently become more of a traumatic trigger, because of the way it had ended, with her becoming more distant and claiming that she felt desperate to the point of ending her life if he divulged their relationship to anyone. He backed off as he didn't want to be the cause of her death, however more recently he had felt he had been abused and dismissed. He was concerned that she might have done this to others and was continuing to manipulate people. He felt the relationship was the beginning of his loss of self-worth, increased the problems he was having in other areas of his life, and had reduced his ability to look after himself or care about his own life. 3. At the next consultation on 3 June 2021 Ms Day recorded that the patient was still struggling to let go of the relationship which had ended in 2018. The patient said this breakup was different to others, as the relationship was different. He was more invested, she was more nurturing and caring and had looked after him more than any other partner he had ever had. She turned it off, said she couldn't see him, was stalling, and threatened suicide. She made him feel wonderful until she flipped the switch and began pushing him away. 4. On 30 June 2021 Ms Day recorded that he reported ongoing confusion as to why the relationship had ended, and a lack of closure. He was still worried about the consequences to her if he brought the legal issue up formally. He was finding everything stressful and had developed a drinking problem, increased smoking, and was not looking after himself since they broke up in 2018-2019. 5. The records of Ms Day are consistent with the patient asserting, before he made a complaint, that he had previously had a sexual relationship with a general practitioner. Other matters 1. Counsel for Dr Bastas also relied on the following inconsistencies: 1. The patient said in his statement he had gone to the Centre on 14 July 2015 because it was in the area. However he had attended the Centre at least four times previously. 2. The patient said he first consulted Dr Bastas on 14 July 2015. However the records disclose that he had consulted her on 6 August 2014. 3. The patient's evidence about the year in which Dr Bastas came to his place must be wrong, because it was inconsistent with Dr Bastas' bank records; 4. When the patient said that he had started to get affected by depression in 2019 because he thought that maybe Dr Bastas had found someone else, the records show that he had been affected by depression and alcohol use problems separately and consistently from 2014 onwards. In relation to this submission, we do not accept that the patient meant that he first developed depression at that time, rather that was when he started to be depressed because he was concerned that Dr Bastas could be seeing other men. 5. The patient said Witness A had suggested he get legal advice but Witness A said the patient had been speaking to a lawyer and she had suggested he speak to APHRA. 1. We do not consider that any of these issues are significant. They do not impact on the reliability of the evidence of the patient. The reliability of the evidence of Dr Bastas Telephone calls 1. We consider that, in her first statement, Dr Bastas sought to give the impression that she had very little contact with the patient outside the Centre. In her statement dated 22 November 2022 she said: "In total, I estimate that I met with [the patient] on 5 or 6 occasions outside of appointments at the Practice. This included one occasion where I met him for coffee at Marrickville Metro, one occasion where I attended his home, one occasion where he attended my home and another occasion where he met me outside the practice in Balmain. The remainder of the times I met him in his car." 1. It is now common ground that between 21 July 2016 and 9 August 2022 there were at least 150 text or multimedia messages and at least 73 telephone calls between the patient and Dr Bastas. 2. The records from the date that the patient says the relationship commenced, which was 14 July 2015, up to 1 October 2016 are not in evidence. It is common ground that they were not produced because the service providers only retain their records for seven years. 3. Dr Bastas was provided with the records and she said in her second statement that she did engage in communications of a personal nature being text messages and phone calls with the patient which breached professional boundaries. They had discussed what the patient was going through, but she had not discussed her personal life or how she was feeling nor did she ever say "if anything bad happens I will do something bad", nor did she ever suggest to the patient that she would engage in self-harm. 4. Many of the exchanges occurred after 6:00pm and some were very late at night. There were exchanges on Christmas Day and Boxing Day in 2016 and 2017. 5. We are satisfied that these records are more consistent with an ongoing personal relationship (which was the evidence of the patient) than communications restricted to conversations which were work-related (which was the evidence of Dr Bastas). Treatment notes and Medicare 1. Dr Bastas' records only contain details of consultations at the Centre. 2. Dr Bastas was cross-examined about her failure to make a single note about the counselling she said had occurred when she met the patient outside the Centre and in over 200 text messages and telephone calls. She said she probably was not fully aware, as at July 2015, of the obligation to make a record of each consultation. She was reminded that the Tribunal in 2006 had considered a complaint about her record-keeping. She then conceded she knew of the obligation in 2015. 3. Dr Bastas then said that, as at 2015, it was her practice to record every clinical interaction with a patient. The Centre was then using a hybrid system, some records were on paper and some were recorded on to a computer system. 4. Dr Bastas said it was her practice to jot a note on a notepad after any consultation with any patient if it occurred outside the Centre or if the computer was not working. 5. Dr Bastas said she recalled jotting notes about the counselling she provided to the patient but has no idea where those notes are. 6. Dr Bastas' assertion on cross examination that she had made handwritten notes about her many consultations with the patient for counselling outside the Centre is not mentioned in her statements even though she described some of their meetings as being in the nature of a home visit. 7. Further, Dr Bastas agreed, that as July 2015, it was her practise to make a Medicare claim in relation to any patient interaction. The Centre was predominantly a bulk billing practice and the billings to Medicare were her income. 8. In addition, she was under a contractual obligation with the Centre to bill patients. 9. The Medicare records are in evidence. Claims were only made in relation to the consultations at the Centre. 10. We find the absence of the following is inconsistent with Dr Bastas' assertion that her interactions with the patient outside the Centre were work related and confined to counselling: 1. earlier evidence from Dr Bastas about her practice to jot a note and the loss of those notes; and 2. the significant number of entries which would have been made in the Centre's records if it had been Dr Bastas' practice to jot a note each time and then enter the details into the computer system; and 3. the significant number of claims which would have been made on Medicare. 1. It is more consistent with the evidence of the patient as to their relationship. Counselling 1. As we have already said, Dr Bastas says that their meetings and exchanges were confined to counselling. However: 1. as at July 2015 she had not undergone any training in counselling. Dr Bastas said she felt qualified to counsel the patient, even though it was not something she usually did, because he had reached out to her and it was what she thought he needed. She listened and advised, which the Tribunal members suggested sounded like supportive counselling, and she agreed. 2. the purpose of the patient's visit to Dr Bastas on 14 July 2015 was to obtain a referral to a psychologist, Ms Brown. Dr Bastas was asked why she felt she needed to have a counselling role with the patient when he was already in counselling with Ms Brown. She was also asked whether she had spoken with Ms Brown about Ms Brown's counselling role with the patient. Dr Bastas said she had not spoken to Ms Brown, she thought that Ms Brown already knew and the patient was not at risk. Dr Bastas did not explain why she thought that Ms Brown would have known that she was also providing a counselling service to the patient. 3. Dr Bastas said she was not concerned that she could be undermining the work of Ms Brown. 1. We consider that this evidence casts further doubt on the likelihood that Dr Bastas' interactions with the patient were confined to counselling. Plausability 1. We are of the view that Dr Bastas' statements that she only met with the patient outside work to listen to his concerns and counsel him is implausible even on her evidence as to their interactions. 2. Dr Bastas concedes she gave the patient her mobile phone number, she met him outside the Centre at Marrickville Metro carpark, at Marrickville, near a café, in a laneway outside her mother's house, at her home, outside a Balmain practice and at the home of the patient, she poured the patient a glass of wine while he was at her home, she gave him aftershave and received trousers from him, she participated in a photograph with him, together, she bought pizza for him while she was at his home, she loaned him $500, she gave him chocolates whenever he consulted her at the Centre and she informed the patient of her hospitalisation. 3. This conduct is more consistent with the relationship described by the patient than Dr Bastas. Inadequacy of records 1. We also take into account the deficiencies we have identified in Dr Bastas' treatment records of the patient later in these Reasons. They must be seen in the context of the earlier complaint in which Dr Bastas admitted that two of the patient's medical records were inadequate. The conditions placed on her registration in 2006 included the appointment of a registered medical practitioner as a supervisor. The duties of the supervisor included addressing such issues as appropriate prescribing practices and appropriate medical record-keeping practices. 2. We consider that these deficiencies are consistent with the evidence of the patient that he would visit Dr Bastas for purposes other than treatment. Factual findings 1. Dr Bastas asks us to accept her evidence as to her relationship with the patient. 2. However we decline to accept the evidence of Dr Bastas where it conflicts with the patient. The various matters which we have already discussed are sufficient to cast doubt on the reliability of the whole of Dr Bastas' evidence. 3. We accept the evidence of the patient as set out in his statement and his evidence before us. The Application 1. As we have said, there are three Complaints. Complaint One 1. The HCCC asks us to find that Dr Bastas is guilty of unsatisfactory professional conduct under the National Law because: 1. she engaged in conduct that demonstrates her judgement in the practice of medicine is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience: s 139B(1)(a); or 2. she engaged in improper or unethical conduct relating to the practice of medicine: s 139B(1)(l). Particular 1 1. Particular 1 states that around 14 July 2015 Dr Bastas breached professional boundaries when she gave the patient her personal mobile phone number. 2. Dr Bastas admits that she gave the patient her mobile number but otherwise does not admit Particular 1. 3. As we have accepted the evidence of the patient, we also accept his evidence as to how this occurred, that is that Dr Bastas told him that she was having relationship difficulties, he invited her to call him to talk about it and they exchanged phone numbers. 4. Dr Golding points out that there will be circumstances in which it is appropriate for a doctor to give his or her telephone number to a patient e.g. when important results are pending. However professional boundaries in medicine are the limits that define the relationship between a doctor and their patient. 5. In our view it was this act of Dr Bastas which initiated the crossing of professional boundaries with the patient. The numbers were exchanged so that they could discuss her personal problems. This is contrary to both the Medical Board of Australia's, "Good Medical Practice: A Code of Conduct for Doctors in Australia", (at March 2014) (the Code) and "Sexual Boundaries; guidelines for doctors", (at 28 October 2011) (the Sexual Boundaries Code). 6. 8.2 of the Code provides: "8.2 Professional boundaries 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 patient. Specific guidelines on sexual boundaries have been developed by the Medical Board of Australia under the National Law.12 8.2.3 Avoiding expressing your personal beliefs to your patients in ways that exploit their vulnerability or that are likely to cause them distress". 1. It is also a clear breach of cl 9 of the Sexual Boundaries Code which says that the start of a sexual relationship between a doctor and a patient may not always be immediately obvious to either the doctor or the patient. It mentions, as a warning sign, a doctor revealing to a patient intimate detail of their life, especially personal crises. If a doctor senses a warning sign, the doctor should try to constructively re-establish professional boundaries and seek advice from an experienced and trusted colleague or their professional indemnity insurer about how to best manage the situation. If there is a possibility that sexual boundaries could be breached, or that the doctor may not remain objective, the doctor should transfer the patient's care to another doctor. Doctors are responsible for establishing and maintaining sexual boundaries. Doctors need to be alert to warning signs that could indicate that boundaries are being, or are about to be crossed. 2. Section 4 of the National Law provides that the Code and the Sexual Boundaries Code are evidence of what constitutes appropriate professional conduct or practice for the health profession. 3. Dr Golding was satisfied that Dr Bastas' conduct fell significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. 4. We are satisfied that Dr Bastas' conduct at the consultation with the patient on 14 July 2015 fell significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. 5. Accordingly, we find that this was unsatisfactory professional conduct. 6. We find that the HCCC has established Complaint One Particular 1. Particulars 2 to 12 Particular 2 1. Particular 2 states that around 14 July 2015, Dr Bastas breached professional boundaries when she sent a text message to the patient asking him to meet her at a cafe in or around Marrickville. 2. Dr Bastas denies Particular 2. Particular 3 1. Particular 3 states that shortly after sending that text message/s, Dr Bastas breached professional boundaries when she met the patient at a cafe and: 1. she purchased takeaway coffees for them; 2. drank the coffee with the patient in the back of her car; 3. engaged in a personal conversation; 4. kissed the patient; 5. engaged in sexual intercourse with the patient in her car. 1. Dr Bastas denies Particular 3. Particular 4 1. Particular 4 states that between around late July 2015 and 2019 Dr Bastas engaged in an inappropriate, sexual relationship with the patient. 2. Dr Bastas denies Particular 4. Particular 5 1. Particular 5 states that between around July 2015 and 2019 Dr Bastas engaged in an inappropriate, close personal relationship with the patient. 2. Dr Bastas admits that she did form an inappropriate close personal relationship with the patient but says it ended in 2017. Particular 6 1. Particular 6 states that around late 2015, Dr Bastas breached professional boundaries when she loaned the patient $500. 2. Dr Bastas admits that she loaned the patient $500, but otherwise does not admit Particular 6. Particular 7 1. Particular 7 states that sometime after late 2015, Dr Bastas breached professional boundaries when, at least once, she allowed the patient to visit her home; and 1. consumed alcohol with him; 2. allowed the patient to clean her windows to pay off the $500 loan. 1. Dr Bastas admits that she agreed to allow the patient to clean the windows but says it never actually occurred. Otherwise she does not admit Particular 7. Particular 8 1. Particular 8 states that during the close personal relationship, Dr Bastas breached professional boundaries by exchanging gifts with the patient including giving him aftershave and chocolate and accepting a pair of pants from him. 2. Dr Bastas does not admit that she breached professional boundaries but otherwise admits Particular 8. Particular 9 1. Particular 9 states that Dr Bastas breached professional boundaries when, in a phone call with the patient, she said words to the effect of "if anything bad happens I will do something bad". 2. Dr Bastas denies Particular 9. Particular 10 1. Particular 10 states that between at least 1 October 2016 and 9 August 2022, Dr Bastas breached professional boundaries when she engaged in communication of a personal nature with the patient, including; 1. sending or receiving at least 150 text messages; 2. engaging in at least 73 phone calls. 1. Dr Bastas does not admit Particular 10. Particular 11 1. Particular 11 states that on or around 3 August 2017, Dr Bastas breached professional boundaries when she informed the patient that she had been hospitalised with a mini-stroke. 2. Dr Bastas does not admit Particular 11. Particular 12 1. Particular 12 states that in or around 2018, Dr Bastas breached professional boundaries when on one occasion she visited the patient's home and: 1. engaged in sexual intercourse with him; 2. bought pizza for him. 1. Dr Bastas admits Particular 12(2) but otherwise denies the Particular. 2. All of the conduct outlined in Particulars 2 to 12 is the subject of evidence from the patient and we have accepted that it occurred. 3. They are all indicia of a long term sexual relationship between Dr Bastas and the patient. 4. This is unsatisfactory professional conduct because: 1. A good doctor-patient partnership requires high standards of professional conduct which involves recognising that there is a power imbalance in the doctor-patient relationship, and not exploiting patients in any way, including physically, emotionally, sexually or financially: the Code, 3.2.6. 2. It is a breach of professional boundaries which are the limits that define the relationship between a doctor and their patient. Good medical practice involves never using a professional position to establish or pursue a sexual, exploitative or other inappropriate relationship with anybody under the doctor's care: the Code, 8.2. 3. It is a breach of a sexual boundary because doctors are expected to act in their patient's best interests and not use their position of power and trust to exploit patients sexually, emotionally or psychologically. Breaching sexual boundaries is always unethical and usually harmful for many reasons: Sexual Boundaries Code, 4. 4. There is no place for sex in the doctor-patient relationship, either in the guise of a 'consensual' sexual relationship, or in the form of sexualised comments or behaviour, or indecent or sexual assault: Sexual Boundaries Code, 6. 1. We are satisfied that the conduct of Dr Bastas set out in Particulars 2 to 12 of Complaint One falls significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. Accordingly, we find that this was unsatisfactory professional conduct and the HCCC has established Complaint One Particulars 2 to 12. Particular 15 1. Particular 15 states that on or around 25 August 2016, Dr Bastas inappropriately prescribed amoxicillin and metronidazole to the patient in circumstances where the clinical records do not support the prescribing, including where: 1. Dr Bastas recorded a diagnosis of a viral respiratory tract infection; and 2. antibiotics are not recommended in the treatment of viral upper respiratory tract infections. 1. Dr Bastas denies Particular 15. 2. The notes say: "History cough and cold symptoms, runny nose. Examination inflamed throat, chest clear Reason for contact RTI - viral … Prescriptions printed Amoxicillin Capsule 500 mg 1 t.i.d. Metrogyl 400 tablet 400 mg 1 t.i.d. p.c." 1. Dr Bastas says the patient attended with cough and cold symptoms, a runny nose and an inflamed throat. On examination it was clear he had a bacterial infection. When recording the consultation using the Centre's computer system she typed URTI, but instead of clicking on the URTI option, she accidentally clicked on the URTI viral option. 2. On cross examination Dr Bastas: 1. Conceded that the medication was not needed if the infection was viral; 2. Said she had diagnosed the infection as bacterial based on the length of time the patient had experienced symptoms and the appearance of his throat. She could not remember whether she had seen any pus. She had not done a swab. 3. Did not agree that she did not have a proper basis to diagnose a bacterial infection because she had made that decision so she must have had a basis. 4. Agreed that the content of her notes was not a proper basis on which to diagnose a bacterial infection. 1. We do not accept the explanation given by Dr Bastas for two reasons: 1. our previous finding as to the reliability of her evidence; 2. her inability to acceptably explain to us why she had diagnosed a bacterial infection in circumstances where that is not supported by her contemporaneous note. 1. Dr Golding said that antibiotics are not recommended in the treatment of viral upper respiratory tract infections. 2. We are satisfied that Dr Bastas did not diagnose a bacterial infection and thus the prescription of antibiotics was not justified. 3. However we do not consider that this was significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience nor was it improper or unethical conduct. 4. The HCCC has not established Complaint One Particular 15. Complaint Two 1. Section 139B(1)(b) of the National Law provides: (1) Unsatisfactory professional conduct of a registered health practitioner includes each of the following— … (b) A contravention by the practitioner (whether by act or omission) of a provision of this Law, or the regulations under this Law or under the NSW regulations, whether or not the practitioner has been prosecuted for or convicted of an offence in respect of the contravention. 1. Complaint Two relies on s 139B(1)(b) of the National Law and alleges contraventions of cl 1(1) of Schedule 2 to the Health Practitioner Regulations (New South Wales) Regulation 2010 (the 2010 Regulation) and cl 3(1) of Schedule 4 the Health Practitioner Regulations (New South Wales) Regulation 2016 (the 2016 Regulation). 2. These Regulations, which are relevantly in the same terms, say: 1 Information to be included in record (1) A record must contain sufficient information to identify the patient to whom it relates. (2) A record must include the following: (a) any information known to the medical practitioner who provides the medical treatment or other medical service to the patient that is relevant to the patient's diagnosis or treatment (for example, information concerning the patient's medical history, the results of any physical examination of the patient, information obtained concerning the patient's mental state, the results of any tests performed on the patient and information concerning allergies or other factors that may require special consideration when treating the patient), (b) particulars of any clinical opinion reached by the medical practitioner, (c) any plan of treatment for the patient, (d) particulars of any medication prescribed for the patient. (3) The record must include notes as to information or advice given to the patient in relation to any medical treatment or other medical service proposed by the medical practitioner who is treating the patient. (4) A record must include the following particulars of any medical treatment or other medical service that is given to or performed on the patient by the medical practitioner who is treating the patient: (a) the date of the treatment, (b) the nature of the treatment, (c) the name of any person who gave or performed the treatment, (d) the type of anaesthetic, if any, given to the patient, (e) the tissues, if any, sent to pathology, (f) the results or findings made in relation to the treatment. 3 General requirements as to content (1) In general, the level of detail contained in a record must be appropriate to the patient's case and to the medical practice concerned. (2) A record must include sufficient information concerning the patient's case to allow another medical practitioner to continue management of the patient's case. (3) All entries in the record must be accurate statements of fact or statements of clinical judgment. 1. There is no difference between metrogyl and metronidazole. The word used in these Reasons is the word used in the records and the Complaint. It is an antibacterial. Particular 1 1. Particular 1 states that on around eight occasions between 14 July 2015 and 14 September 2017, Dr Bastas failed to document any, or an adequate rationale and/or indications for prescribing metrogyl to the patient. 2. In her statement to the HCCC dated 2 August 2023, Dr Bastas agreed that her records lack detail and are unlikely to be sufficient to facilitate continuity of patient care and do not comply with relevant guidelines concerning record-keeping. 3. Curiously however counsel for Dr Bastas submitted: 1. A breach of the Regulations is unsatisfactory professional conduct i.e. there is no relevant threshold such as a requirement for the HCCC to show that the records significantly depart from the standards in the Regulations; and 2. Dr Bastas does not admit unsatisfactory professional conduct. 1. We do not accept the submission. Dr Bastas admits that those eight records do not comply with the requirements of the 2010 Regulation and the 2016 Regulation. This is, as we have discussed earlier in these Reasons, unsatisfactory professional conduct: s 139B(1)(b) of the National Law. 2. We have looked at those records. They do not have sufficient information to comply with the Regulations. 3. The HCCC has established Complaint Two Particular 1. Particular 2 1. Particular 2 states that on or around 14 July 2015 Dr Bastas failed to document: 1. her diagnosis of the patient; 2. the reason for prescribing metronidazole to the patient; 3. adequate details of a standard referral including who the referral was to or the purpose of the referral. 1. Dr Bastas admits she failed to document the reason for prescribing metronidazole to the patient and to note adequate details of the referral. 2. This, pursuant to 139B(1)(b) of the National Law, is unsatisfactory professional conduct. 3. The HCCC has established Complaint Two Particulars 2 (2) and (3). 4. Dr Bastas says however, in relation to (1), that, while it is not in her notes, the GP Mental Health Plan, a copy of which is in her records, shows the diagnosis as post traumatic stress which had been based on the K10 Assessment which was also in the file. 5. Counsel for the HCCC submitted that there was very little information in the Plan and that, even if this was taken into account, the information was insufficient. 6. We agree with this submission made by the HCCC. Even taking the Plan into account, the information is insufficient - there is no documentation of the assessment of the patient's post traumatic symptoms. The HCCC has established Complaint Two Particular 2 (1). Particular 3 1. Particular 3 states that on or around 18 May 2017, Dr Bastas failed to document appropriate details of her assessment of the patient for post traumatic stress disorder. 2. In the Respondent's Outline of Closing Submissions Dr Bastas admits she failed to document appropriate details of her assessment for post traumatic stress disorder in her consultation note which was a breach of the obligations in the Regulations to keep records to the level of detail appropriate to the patient's case and to the medical practice concerned. 3. Dr Bastas says that, in her 32 years of experience and through the details provided by the patient in the unrecorded consultations out of the Centre when he told her about having been assaulted by a group of men with a baseball bat and his ex girl friend, she accepted he was suffering from a post traumatic stress disorder. This explanation, which refers to using information Dr Bastas had gained in unrecorded consultations and which are not mentioned in the entry on 18 May 2017, illustrates Dr Bastas' departure from the requirements in the Regulations. 4. Dr Bastas again says the relevant information is in the GP Mental Health Plan, which she prepared on 18 May 2017, a copy of which is in her records. It is clear however that this document, apart from the date, is identical to the one prepared on 14 July 2015. For example, they both say, "Was assaulted by a baseball bat some months ago". 5. As we found in relation to the 2015 Plan, we do not accept that the notes, even when read with the 2017 Plan, contain the information which should have been in the patient's records. 6. The HCCC has established Complaint Two Particular 3. Particular 4 1. Particular 4 states that on or around 5 July 2017, Dr Bastas failed to document adequate detail of the patient's history of dental pain, including: 1. the cause of the pain; 2. any referral to a dentist; and/or 3. recommended treatments. 1. The entry for 5 July 2017 says: "History dental pain Actions Metrogyl 400 tablet, 400 mg elapse date changed from 12/07/2017 to 12/07/2017 Prescriptions printed Metrogyl 400 tablet, 400 mg 1 t.i.d. p.c." 1. Dr Bastas acknowledges she failed to document adequate detail of the patient's history of dental pain including the cause of the pain, any referral to a dentist and/or recommended treatments. 2. Dr Bastas said she recalls that she prescribed metrogyl to the patient to treat what she suspected to be a localised infection which was the cause for his dental pain. She says she recalls saying to him that if the symptoms do not resolve, to see a dentist as it is her usual practice to do so. 3. In cross examination Dr Bastas said she did look at the patient's teeth and gums and saw that the gum was swollen in the area where the patient felt pain. She prescribed metrogyl because she knows that it is prescribed by dentists. 4. It is clear that the notes are inadequate as they do not even disclose the matters which Dr Bastas says did occur - the findings on examination and the plan for future treatment. 5. The HCCC has established Complaint Two Particular 4. Particular 5 1. Particular 5 states that on or around 17 September 2017, Dr Bastas failed to record adequate details of the consultation with the patient in circumstances where she indicated in the clinical records that the purpose of the consultation was to "assess general health, discuss some issues, private, doesn't want me to record content". 2. Dr Bastas admits that this entry was a failure to record adequate details of that consultation with the patient and a breach of the obligations in the Regulations to keep records to the level of detail which must be appropriate to the patient's case and to the medical practice concerned. 3. Dr Bastas said the patient had asked her not to record the content of the consultation and she agreed. It was not her normal practice. 4. Dr Golding said that he is not aware of any recommendation that patients have the authority or agency to request that notes not be made of a clinical encounter. Privacy and confidentiality should not be a relevant issue as there are multiple requirements for confidentiality and privacy contained in 4.4 of the Code. 5. The Code says that good medical practice involves keeping accurate, up-to-date, and legible records that report relevant details of clinical history, clinical findings, investigations, diagnosis, information given to patients, medication and referral. In addition, a record must include sufficient information concerning the patient's case to allow another medical practitioner to continue management of the patient's case. These details are not in the notes. 6. The HCCC has established Complaint Two Particular 5. Complaint Three 1. The HCCC asks us to find that Dr Bastas is guilty of professional misconduct under section 139E of the National Law. Section 139E says: For the purposes of this Law, professional misconduct of a registered health practitioner means-- (a) unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; or (b) more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration. 1. Dr Bastas says that her conduct does not amount to professional misconduct. 2. The gravity of professional misconduct is not to be measured by reference to the worst case but by the extent to which the conduct departs from "proper" or "reasonably expected" standards: Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 638. 3. In Chen v Health Care Complaints Commission [2017] NSWCA 186 at [20] the Court held: "There is 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 practise 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 sought to be imposed by the practitioner on the language of s 149C(1)." 1. We take into account the following matters as indicators of the serious nature of the conduct underlying Complaint One: 1. The conduct continued over a lengthy period. 2. The doctor-patient relationship is inherently unequal. It is an abuse of this power imbalance for a doctor to enter into a sexual relationship with a patient. 3. Dr Bastas knew on 14 July 2015 that the patient was an extremely vulnerable person. He had come for a referral to a psychologist. On the GP Mental Health Plan she answered "Yes" to the question "Has the person ever received specialist mental health care". She mentioned the assault with the baseball bat. She noted that he suffered from flashbacks and was having difficulty sleeping. Nevertheless, she chose to give her telephone number to the patient and almost immediately afterwards meet him away from the Centre. While Dr Bastas did not disclose what she had learned about the patient during her counselling sessions, Ms Brown informed Dr Bastas in her report dated 18 March 2016 that she had diagnosed an alcohol use disorder and possible depression. The patient had told Ms Brown that he had suffered physical abuse and neglect as a child and had a family history of mental health issues. He was currently unemployed and having financial difficulties, he did not have stable housing and he had poor coping strategies and communication difficulties. 4. Trust is the foundation of a good doctor-patient relationship. Patients need to trust that their doctors will act in their best interests. It is a breach of trust for a doctor to enter into a sexual relationship with a patient. This breach of trust may impact on that patient's ability to trust other doctors. 5. A sexual relationship, even if the patient is a consenting adult, may impair the doctor's judgement and compromise the patient's care. 6. She did not, at any time, seek guidance from a professional colleague. 7. The seriousness of the conduct is also heightened by the fact that in 2006 she was reprimanded and underwent mentoring and supervision for (among other things) engaging in an inappropriate close personal relationship with a patient. Those matters should have made clear to Dr Bastas that such behaviour was unacceptable. Instead she has repeated it. 1. We take into account the following matters as indicators of the serious nature of the conduct underlying Complaint Two: 1. We agree with Dr Golding who said that Dr Bastas' records are wholly deficient in their capacity to facilitate continuity of care by another medical practitioner. 2. The seriousness of Dr Bastas' conduct in relation to her record-keeping is heightened, again, by the fact that the Medical Tribunal in 2006 previously found deficiencies in her record-keeping, which formed part of the basis for its finding of professional misconduct against her. 1. We find that Dr Bastas' conduct is of a sufficiently serious nature to justify suspension or cancellation of her registration. 2. The HCCC has established Complaint Three. Findings 1. We find that: 1. In respect of Complaint One, Particulars 1-12, Dr Bastas is guilty of unsatisfactory professional conduct. 2. In respect of Complaint Two, Dr Bastas is guilty of unsatisfactory professional conduct. 3. In respect of Complaint Three, Dr Bastas is guilty of professional misconduct. ********** 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 March 2025