New South Wales Medical Tribunal CITATION : Re Dr Anthony Yan FONG [2007] NSWMT 5 TRIBUNAL: Medical Tribunal PARTIES : Health Care Complaints Commission Dr Anthony Yan Fong FILE NUMBER(S) : 40018 of 2006 CORAM: Freeman, DCJ - Ng, Dr J - Messner, Dr S - Ettinger, Ms G CATCHWORDS: General Practitioner reprimanded - Inappropriate actions in home of patient LEGISLATION CITED: Medical Practice Act 1992 (NSW) ss. 36 and 37; 61(1)(b), 61(1)(c); 61(1)d Medical practice Regulation 1998, 2002 (NSW) Briginshaw v Briginshaw (1938) 60 CLR 336; CASES CITED: Rejjek v McElroy (1965) 112 CLR 517; Richter v Walton (unreported) NSWCA 15/9/1993; HCCC v Litchfield (1997) 41 NSWLR 630 DATES OF HEARING: 17/4/2007-18/4/2007 DATE OF JUDGMENT: 29 May 2007 LEGAL REPRESENTATIVES: G Farmer of Counsel (HCCC) V Hartstein of Counsel (Respondent) ORDERS: Paragraphs 37 and 38. JUDGMENT: JUDGMENT THE TRIBUNAL ORDERS THAT THE NAME OF THE PATIENT OR ANY MATERIAL CAPABLE OF IDENTIFYING THE PATIENT BE NOT PUBLISHED 1 The Tribunal has before it for enquiry a complaint by the Health Care Complaints Commission (HCCC) against Dr Anthony Yan Fong of Penrith, New South Wales ("the practitioner"). The complaint dated 31 May 2006 claims that Dr Fong "has been guilty of unsatisfactory professional conduct and/or professional misconduct within the meaning of sections 36 and 37 of the Medical Practice Act 1992 in that he has: 1.Demonstrated that the knowledge, skill or judgment possessed, or care exercised, by him in the practice of medicine is significantly below the standard expected of a practitioner of an equivalent level of training or experience; and/or 2. Engaged in improper or unethical conduct relating to the practice of medicine and/or 3.Contravened a provision of the Medical Practice Regulation. 2 Particulars At all relevant times the practitioner practised as a general practitioner at the Tindale Medical Centre at Penrith. 1.On 13 January 2004, during a visit to Patient A's home, the practitioner failed to maintain proper professional boundaries in that he: (a) inappropriately lifted up Patient A's foot and kissed it; (b) made comments which were inappropriate in the circumstances, being words to the effect of: i."I think you would look nice in a pair of high heels"; ii."I think you've got beautiful feet"; iii."I have grown to like you, we are all human and we can't help how we feel"; iv. "Why don't you go and put on some high heel shoes so I can see you in them"; v."I should be around to look after you". (c) placed his hand on Patient A's thigh and moved it back and forth towards her groin, and rubbed her groin area over her shorts; (d) kissed Patient A's neck; (e) brushed his hand down the front of Patient A's body and felt her breasts. 2.The practitioner failed to make adequate and contemporaneous notes in Patient A's medical record in relation to the visit to Patient A's home that took place on 13 January 2004. 3.The practitioner made a false and misleading entry in his medical records in relation to the visit to Patient A's home on 13 January 2004 when he wrote that Patient A talked about "the possibility of making good money as a 'prostitute'". 4.Between 17 October 1999 and 13 January 2004, the practitioner made records in relation to his consultations with Patient A which did not contain the information required to be included by Schedule 2 of the Medical Practice Regulation 1998 and of the Medical Practice Regulation 2002. 5.The practitioner made a claim for payment to the Health Insurance Commission for a long home visit to Patient A conducted on 13 January 2004: (a) when he knew that he had not provided treatment to Patient A on that day; and (b) he made a false and misleading statement on the claim form when he wrote "Patient too ill to sign". 3 The complaint is very largely concerned with the events of 13 January 2004 but some background is necessary to put the recounting of those events into a proper context. 4 Patient A was born on 6 April 1981 making her now 26 years of age. She, together with other members of her family, had been a patient of the practitioner from about the age of 10. She testified that she had for some time felt within herself that something had happened by way of abuse when she was a child. However a few days before 9 January 2004 she had received information from an aunt that she, the aunt, believed that there had been an occasion, when the patient was aged four, when she had been molested. 5 Upset by this information, Patient A went to consult Dr Fong on 9 January 2004. It is common ground that at that visit Dr Fong suggested that the patient should consult a psychologist, Ms Julie Simpson, who was part of the practice in which Dr Fong worked. There is some uncertainty about just how the patient was to be brought into contact with Ms Simpson. Patient A believed that she required a referral and left Dr Fong's surgery believing that he would either send her a letter or make an appointment for her with Ms Simpson. Dr Fong believed that he had made clear to Patient A that she should simply make her own appointment with the psychologist. Clearly there was some breakdown of communication on this aspect. 6 What is agreed, however, is that Dr Fong volunteered to pay a home visit to Patient A on a day when he ascertained Patient A's three year old daughter would be in day care. The child attended day care on Tuesdays and Fridays. There is a dispute as to whether the child was in the surgery on Friday 9 January 2004 or not. The practitioner says that the child was present and was a distraction, preventing him from engaging in prolonged counselling with Patient A. It was, at least in part, because of this distraction that the practitioner sought to arrange a home visit when the child would not be present. Patient A, on the other hand, believes that the child was not present. Her recollection is not, however, very positive on this point. Giving the benefit of the doubt to the practitioner, it may be that part of his rationale for calling at the home of this young woman was for the purpose of counselling her without the distraction of her young child being present. 7 Indeed Patient A agreed to the practitioner's suggestion that he visit her at home although, given their respective positions and joint history, it is more likely that she simply acquiesced in his decision. In any event, the practitioner did nominate the following Tuesday, 13 January 2004, and on that day he telephoned Patient A at about 3pm to confirm that he was on his way to her home. Dr Fong testified that when he arrived at Patient A's unit she appeared "cold", as in a sense "withdrawn". This somewhat flat affect, as he described it, may have been simply because she was not enthusiastic about the visit. No other explanation is suggested. Patient A testified that, at least at that stage, she had complete faith and trust in her doctor 8 During the course of the visit the two sat, at first, on lounges which were placed at right angles to each other. According to Dr Fong, he attempted to raise the subject of the patient's molestation as a child but it was clear that she did not wish to discuss this matter. He then asked the patient to show him around the unit. He explained in evidence that this was for the purpose of gauging how well she was coping. She showed him, by standing in the hallway, the various rooms of the unit which was very neat, clean and tidy. Dr Fong then returned to the lounge room and took a seat on the lounge on which Patient A had previously been sitting. He asked her to sit next to him. She did. There then ensued a conversation in which "prostitution" was mentioned. It is now accepted by the practitioner that Patient A was not suggesting that she would engage herself in prostitution. She was, however, depressed about her financial position and did talk about others whom she knew who were making money by that means. 9 It was at this juncture that Dr Fong made reference to Patient A's feet, telling her that she had "beautiful feet". That much is agreed. What is in dispute is what happened immediately after this remark was passed. According to Dr Fong, Patient A stretched out her leg and he asked to have a closer look at her foot, whereupon she brought the foot back closer to him by bending her knee and he took hold of her heel and for a brief instant rested her foot, or perhaps ankle, on his knee. 10 According to Patient A, the practitioner, having complimented her foot, then bent down, lifted up her foot and kissed it. Shocked by this extraordinary action Patient A said, "excuse me" and turned her head away in confusion. She noted that Oprah Winfrey was appearing on the television which was in the lounge room. She felt the practitioner run his hand down over her breast and then massage, briefly, her thigh. She was, because of the state of shock in which she found herself, uncertain, at least at this remove, of the order of these touchings. She was also unable to say, now, whether he had kissed her neck although in her original statement to the Police she had mentioned this detail. 11 For his part the practitioner agreed that having touched her foot he did place his hand on her thigh but only indirectly in that he had placed his hand on top of hers which was resting on her thigh. He had done this to comfort her, he said. He denied the other obviously improper touchings. 12 It is again common ground that Patient A then declared that she needed to go immediately to see a friend. She said this was an excuse which she had made up to extricate herself from this position with the practitioner. She stood up and having collected her keys from the kitchen, went to leave the unit. While she was doing this, she said, the practitioner, having observed that she would look good in high heels, asked her to put on some high heeled shoes for him. 13 The practitioner agrees that he did ask Patient A to put on high heels but said that this was earlier when he was talking about her beautiful feet and was said in a light hearted fashion. 14 Whatever the timing of this quite inappropriate request, the practitioner agrees that Patient A was clearly in a hurry to leave her unit. So obvious was this that he had no time, or did not see that it was fitting, to ask her to sign the Medicare assignment form. 15 They left the unit together and on the way down there was a conversation, the terms of which are in dispute. The practitioner asserts that he asked Patient A whether she felt safe living there and said that he was always available to look after her if she needed help. He said in evidence that he made this offer because of his long standing affection and almost paternal interest in his patient and the presence in nearby units of people whom he regarded as potentially undesirable. According to Patient A the practitioner said that he should be around to look after her – an offer which she rejected, telling him that she was quite able to look after herself. Finally the practitioner offered Patient A a lift in his car which she declined and on entering her own car it is agreed that she "sped off". 16 In summary it should be recorded that Patient A then went to the house of a friend to whom she made complaint concerning the doctor's advances. She similarly complained to her boyfriend, his mother and ultimately, on the evening of 13 January 2004 she made a formal complaint to the Police. As to the precise terms of those complaints it will be necessary to return. 17 The practitioner concedes that as they were leaving the unit, Patient A was "in a rush", "wanted to leave" and was "a bit hostile". He is unable to explain this attitude. Certainly his version of events would not explain hostility on the part of Patient A because, he says, he had complimented her on the beauty of her feet before on a number of occasions, so that there should have been nothing surprising about the compliment he paid her on this occasion. Patient A denies this, although she concedes that Dr Fong had told her several times that she was attractive. This was during visits to the surgery, sometimes when other people were present. 18 How does the Tribunal resolve these conflicts in the evidence adumbrated above? 19 It is appropriate to recall the onus and standard of proof in relation to this complaint. The HCCC bears the onus of bringing the Tribunal to a state of "comfortable" satisfaction on the balance of probabilities. This proposition is derived from Rejfek v McElroy (1965) 112 CLR 517 at 521 as applied in Bannister v Walton (1993) 30 NSWLR 699. In applying such a standard the Tribunal has had regard to the importance and gravity of the matters to be demonstrated in accordance with the principle enunciated in Briginshaw v Briginshaw (1938) 60 CLR 336 at 360. 20 In accordance with those principles the Tribunal finds the evidence given by Patient A to be persuasive. She appeared as a candid, straightforward witness who was prepared to make concessions and whose testimony carried the ring of truth. For example, her description of the way in which she reacted when the practitioner first engaged with her foot seemed to the Tribunal eminently credible. Likewise, her reaction, conceded by Dr Fong, of rising abruptly and hurrying from her unit in an apparently hostile frame of mind, is wholly consistent with her description of what had occurred. Her actions in making complaint to friends and Police is behaviour consistent with the facts which she has recounted. 21 In passing it should be recorded that an attack was made on Patient A's credit because, inter alia, the statements of those to whom she complained do not record exactly the same details. The Tribunal is not satisfied that this is a proper basis for casting doubt on the witness' credibility. The recipients of her complaints were not themselves called. It is not beyond question that their recollection is not complete and, in any event, it is by no means uncommon for the victim of an assault to emphasise to different people slightly different aspects of the assault and her reaction to it. 22 The thrust of Patient A's complaints was uniform. She was visibly shocked and distressed and attributed this state to the fact that her doctor had behaved improperly towards her. 23 Dr Fong, on the other hand, was not a good witness in his own cause. Some of his answers were confusing, for example, concerning his understanding both now and at the time of the conversation in which prostitution was mentioned. At times he himself became confused as when he appeared to conflate the areas of Patient A's anatomy on which he had expressed admiration. Thus, having said he told her he admired her legs he then changed his mind, said that he had referred to her feet and then sought to extricate himself by referring to her ankle and then saying that "in using all those anatomical terms mix it up a little bit". 24 A rather more disturbing insight into his thinking, however, was vouchsafed by considering his attitude to even those things which he admits he did on 13 January 2004. He conceded that there was no proper basis for him to ask to see Patient A's foot and certainly no medical reason for him to touch it at all. Likewise, there was no conceivable therapeutic basis for asking that she show him herself in high heels. When asked why he had done these things he really had no answer. He has taken no steps to try to understand his own motivation for doing these things. 25 There are other factual elements which carry some weight in the Tribunal's assessment. For example, Dr Fong was less than impressive with his explanation of the entries he made in his records about 9 and 13 January 2004 and the completion of the Medicare assignment form relating to that latter date. 26 He concedes that the entry "to see Julie" as the only record for 9 January 2004 when Patient A came to see him about the recent revelation that she may have been assaulted as a child, is clearly an insufficient record. He then made two entries in respect of the home visit of 13 January 2004. The first, on his return to the surgery, perhaps the next day, was simply, "lengthy discussion". Later, in early February, after he had received a letter from the HCCC telling him that Patient A had complained about his behaviour on 13 January 2004, he wrote what he now concedes is an inaccurate and certainly incomplete summary of the events of that day. 27 Given that English is not the practitioner's first language and considering his somewhat confused evidence, the Tribunal is not prepared to find that this later entry concerning 13 January 2004 is deliberately designed to denigrate Patient A. Thus, whilst that entry is not strictly accurate and could give the wrong impression, it is the Tribunal's view that it is not a deliberately false and misleading entry. 28 The Tribunal accepts the evidence of Patient A. In consequence and taken together with his admissions, most of the particulars of the complaint against the practitioner are made out. There are, however, a couple of matters upon which the Tribunal is not satisfied. Thus, in respect of Particular 1d., the allegation that the practitioner kissed Patient A's neck, this detail is included in her statement to the Police but now Patient A has no recollection of this event. She could not say whether this had occurred or not. It seems to the Tribunal that whilst it is possible that this took place because of the description contained in her original statement when her recollection would have presumably been fresher, her concession that she cannot now say whether it occurred should result in a finding by the Tribunal that it is not satisfied to the requisite standard. 29 As to Particular 3, this entry in the patient's record is regarded as inaccurate and capable of being read in the wrong way. For the reasons given earlier, however, the Tribunal is not prepared to find that this was a false and misleading entry in the sense of being deliberately done. 30 As to Particular 5a. it is clear that minds may differ as to the concept of "treatment" in the context of this home visit. Not without some misgivings, the Tribunal has concluded that Dr Fong may have had the well being of Patient A in his proper contemplation when he arranged this home visit and, indeed, when he first arrived. Assessing her coping skills and seeking at least to engage her in some helpful discourse about her childhood and other concerns may properly be regarded as "treatment". This appears to be the view taken by Dr Mowbray. Certainly the Tribunal is not prepared to find that the practitioner " knew " that he had not provided (any) treatment to Patient A on that day. 31 The findings of the Tribunal, seriatim, therefore are: Particular 1a. Proved Particular 1b.i. Admitted; Particular 1b.ii. Admitted; Particular 1b.iii. Proved; (The Tribunal accepts Patient A's version of this statement. The version profferred by Dr Fong does not really make sense in the context in which it was said to have been uttered). Particular 1b.iv. Admitted; Particular 1b.v. Proved. (See iii. above) Particular 1c.Proved Particular 1d.Not proved. Particular 1e.Proved. Particular 2.Admitted and found proved. Particular 3.Not found proved. Particular 4.Admitted and found proved Particular 5a.Not found proved Particular 5b.Admitted and found proved. 32 Whilst there was some difference between the peer reviewers Drs Chung and Mowbray on the level of criticism attracted by Dr Fong's record keeping, there is no doubt that both were highly critical of the practitioner's actions in indecently dealing with Patient A. This attracted Dr Chung's "severe" criticism and "strong" criticism from Dr Mowbray. This must, of course, be so. The reasons for this are recorded in the judgment of the Court of Appeal in HCCC v Litchfield (1997) 41 NSWLR 630 at 638: 33 Female patients entrust themselves to doctors, male and female, for medical examinations and treatment which may require intimate physical contact which they would not otherwise accept from the doctor. The standards of the profession oblige doctors to use the opportunities afforded them for such contact for proper therapeutic purposes and not otherwise. This is the standard that the public in general and female patients in particular expect from their doctors, and which right thinking members of the profession observe, and expect their colleagues to observe. In this context we would adopt, with respect, the following statement from the dissenting judgment of Priestly JA in Richter v Walton (Court of Appeal, 15 September 1993, unreported) at 8-9": 34 "The degree of trust which patients necessarily give to their doctors may vary according to the condition which takes the patient to the doctor. Even in regard to the most common place medical matters the trust a patient places in a doctor is considerable. In some cases, of which the present seems to me to be an example, the patient's trust cannot help but be almost absolute. The doctor's power in regard to the patient in such cases is also very great. I do not mean power in an abstract way but as a matter of fact; the extent of the power will vary according to the temperament of the patient, but the doctor with some patients and for limited periods, because of the relationship in which they are temporarily placed, is in a position to do whatever the doctor wants with the body of the patient. This is one of the reasons why doctors are subject to correspondingly great obligations and are expected to maintain very high standards: all this being very much in the public interest." 35 Ordinarily, it must be said, an indecent dealing with a patient such as occurred here would require, as the HCCC submits, deregistration of the practitioner. However, in this case the Tribunal, bearing in mind that its function is protective and not punitive, does not feel that such a step is necessary. Dr Fong has been engaged in general practice for nearly 30 years. He is highly regarded and there is no suspicion that he has ever behaved improperly towards any other patient or towards this patient on any other occasion. This is truly a single as well as signal aberration. The Tribunal finds that the practitioner was overcome in the course of his visit to the home of Patient A by a sudden urge to which he unfortunately yielded. His regard for his patient, for whom he had long held a warm (and proper) affection, crossed the boundary into grossly inappropriate action. The Tribunal is of the view, however, that, particularly with the conditions it intends to impose, there is no likelihood of a repetition. 36 It is in the public interest to have available the services of effective general practitioners. The conditions selected by the Tribunal are designed to ensure that Dr Fong can continue to practice effectively but at the same time to remove any possibility of a further regrettable lapse in his behaviour. 37 The orders of the Tribunal are as follows: 1.That Dr Anthony Yan Fong be reprimanded. 2.That the following conditions be imposed upon his registration: Pursuant to s. 61(1)(b) of the Act: Therapy 1. Dr Fong is to attend on a psychiatrist for the purpose of treatment for as long as the psychiatrist considers necessary but for at least 12 months from the date of first consultation. Dr Fong is to notify the Board of the name and professional address of a psychiatrist who has agreed to act in that capacity on the following bases: 1.i. The psychiatrist must be approved by the NSW Medical Board; 1.ii. Dr Fong is to provide the approved psychiatrist with a copy of the Tribunal's decision; 1.iii. Dr Fong is to authorise the approved psychiatrist to provide the Board; (a) With a report confirming Dr Fong's attendance as required on a six monthly basis; and (b) Notify the Board immediately if there are any concerns or issues in relation to Dr Fong's compliance with any condition of registration or if the therapeutic relationship ceases. 1.iv. In the event that the approved psychiatrist is no longer willing or able to continue treatment, Dr Fong is to nominate another psychiatrist for approval by the NSW Medical Board within 2 months of the cessation of the original relationship. 1.v. All expenses associated with the engagement of an approved psychiatrist are to be met by Dr Fong. Pursuant to s. 61(1)(c) of the Act: Supervision 2. Dr Fong is to nominate a supervisor within the next 21 days to be approved by the NSW Medical Board to monitor and review his clinical practice and compliance with conditions in accordance with Level 2 supervision of the NSW Medical Board's Guidelines. The supervisor is to be provided with a copy of the NSW Medical Board's Guidelines for Supervision, and a copy of this decision. The cost of the supervision is to be borne by Dr Fong. Dr Fong and the supervisor are to: 2.i. Meet on a monthly basis for at least one hour; 2.ii. Meeting must address issues including boundaries and personal contact with patients, record keeping and any other relevant matters; 2.iii. At each meeting the supervisor is required to complete a record of matters discussed at the meeting in a form approved by the Board; 2.iv. The supervisor is required to forward to the NSW Medical Board initially on a six monthly basis a report in a format approved by the NSW Medical Board; and 2.v. The supervisor is required to notify the NSW Medical Board immediately if there are any concerns or issues in relation to Dr Fong's compliance with any condition of registration or if the supervision relationship ceases. Dr Fong is to authorise the supervisor to provide such information to the Board. Auditing 3. That Dr Fong is to submit to a random audit of his medical records by a person or persons nominated by the NSW Medical Board to monitor compliance with Schedule 2 of the Medical Practice Act Regulation 2003 within three months of today's date and subsequently as required by the Board. Dr Fong is to authorise the said person or persons to prepare for the Board a report of his/her or their findings. Dr Fong is to meet all costs associated with the audits and any subsequent reports. Practice Conditions 4. That Dr Fong must only work in a group practice (defined as at least three practitioners). He must provide a copy of these conditions to the Medical Director/Principal of the practice. 5. That Dr Fong is to notify the NSW Medical Board of a change in the nature or place of his practice. 6. That Dr Fong consents to the exchange of information between Medicare Australia and the NSW Medical Board. Pursuant to s.61(1)(d) of the Act: Education 7.i. Dr Fong is ordered to complete the course MFM1017 Medical Ethics, conducted by Monash University by 31 December 2007. If the course is not available, Dr Fong is to complete an equivalent course, approved by the NSW Medical Board by December 2008. The cost of the course is to be borne by Dr Fong; and 7.ii. Within four weeks of completing the course Dr Fong is to provide evidence to the Board that he has satisfactorily completed the course. COSTS 3. The respondent practitioner is to pay the costs of these proceedings. 38 The Medical Board is the appropriate review body for the purposes of the review of these conditions and may vary the conditions at such times as the Board considers such variance is appropriate. (signed and sealed) His Honour Judge D J Freeman Dr Jude Ng Dr Susan Messner Ms Geri Ettinger ********** 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.