New South Wales Medical Tribunal CITATION : In Re Dr Anthony Jebb [2007] NSWMT 7 TRIBUNAL: Medical Tribunal PARTIES : Health Care Complaints Commission Dr Anthony Jebb FILE NUMBER(S) : 4001 of 2007 CORAM: Rein, SC DCJ - Child, Dr D - Zetler, Dr I - Berglund Dr C CATCHWORDS: Medical practitioner having inappropriate social and physical contact, and inappropriate discussion, with vulnerable patient - whether professional misconduct as opposed to unsatisfactory professional conduct LEGISLATION CITED: Medical Practice Act 1992 Bannister v Walton (unreported, NSWCA, 30/04/92, BC9201911); Gayed v Walton (unreported, NSWCA, 31/7/1997, BC9708087); Re Dr B v The Medical Practice Act (17 May 2007 unreported); CASES CITED: Re Dr Miliotis and the Medical Practice Act (No 40011 of 1959); Re Dr Richard Wingate [2007] NSWMT 2; Richter v Walton NSWCA 15 July 1993 (unreported); Sabag v Medical Tribunal [2001] NSWCA 411 DATES OF HEARING: 17, 19 September 2007 DATE OF JUDGMENT: G Furness LEGAL REPRESENTATIVES: J Crisp ORDERS: See [35]. JUDGMENT: 1 These proceedings concern a complaint brought by the Health Care Complaints Commission ("HCCC") against Dr Anthony Jebb ("Dr Jebb") a registered medical practitioner. The complaint is that Dr Jebb has been guilty of professional misconduct within the meaning of s.37 of the Act or unsatisfactory professional conduct within the meaning of s.36 of the Medical Practice Act 1992 ("the Act"). 2 S. 36 is relevantly in the following terms: "Meaning of "unsatisfactory professional conduct" (1) For the purposes of this Act, unsatisfactory professional conduct of a registered medical practitioner includes each of the following: (a) Conduct significantly below reasonable standard Any conduct that demonstrates that the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of medicine is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. (b) Contravention of Act or regulations Any contravention by the practitioner (whether by act or omission) of a provision of this Act or the regulations. (m) Other improper or unethical conduct Any other improper or unethical conduct relating to the practice or purported practice of medicine. 3 S. 37 is in the following term: "37 Meaning of "professional misconduct" For the purposes of this Act, professional misconduct of a registered medical practitioner means unsatisfactory professional conduct of a sufficiently serious nature to justify suspension of the practitioner from practising medicine or the removal of the practitioner's name from the Register." 4 The particulars of complaint are as follows (particular 4 it should be noted, was not pressed): and particular 5(d) has been amended to reflect the non publication order made "Between about 16 November 2004 and 19 April 2005 the practitioner provided medical treatment, namely psychotherapy, to a female patient, Patient A. During the period of treatment the practitioner: 1. Engaged in inappropriate physical contact with Patient A during professional consultations. 2. Inappropriately divulged details of his personal life to Patient A including details of his previous personal and sexual relationship/s. 3. Inappropriately referred Patient A to a physical therapist for physical therapy in circumstances where the practitioner was consulting the same physical therapist and/or had consulted her in the past. 4.(a) Failed to refer Patient A for specialist psychiatric assessment and/or treatment and/or (b) Failed to consult a senior colleague about Patient A's management; in circumstances where Patient A reported self harming behaviour, severe emotional distress and/or possible psychotic symptoms during the period of treatment. 5. Failed to maintain proper boundaries in his professional relationship with Patient A in that: (a) Consultations with Patient A were conducted at the practitioner's residence in Stanmore, rather than his office in Newtown. (b) During a consultation on 29 November 2004 the practitioner told Patient A that he had had a dream about her. (c) The practitioner discussed with Patient A her astrological chart and its interaction with his own astrological chart during consultation/s. (d) During a session in December 2004 the practitioner described to Patient A his reactions to [seeing a 10 year old girl's vulva in circumstances about which there is no suggestion of impropriety]. (e) The practitioner had lunch with Patient A at the Art Gallery on 3 March 2005 to celebrate Patient A's birthday. (f) The practitioner visited Patient A at her home on 3 March 2005. (g) The practitioner telephoned Patient A between counselling sessions. (h) The practitioner discussed the possibility of his obtaining work as an artists' model during a consultation with Patient A on 21 March 2005. (i) The practitioner attended a film with Patient A on 26 March 2005. (j) The practitioner introduced Patient A to his brother when his brother was only partially clothed. (k) The practitioner introduced Patient A to an artist friend of his." 5 In November 2005 Patient A complained to the HCCC about Dr Jebb's treatment of her. 6 Following A's complaint and Dr Jebb's response to it, an inquiry pursuant to s66 of the Act was held. The panel holding the inquiry pursuant to s66 of the Act determined that restrictions should be placed on Dr Jebb's practice of medicine and Dr Jebb was required to attend Dr Isla E Lonie to discuss the patients he had seen and the treatment he had engaged in on a weekly basis. Dr Lonie's weekly reports were provided to the Medical Board. Later the Medical Board reduced the required interviews to fortnightly intervals. 7 Dr Jebb graduated from Sydney University in 1970 and obtained his Bachelor of Medicine Bachelor of Surgery degrees. He describes himself as a psychotherapist and was in practice from 1982-1994 in Perth and then again in 2001 to date in Sydney. He did not practice medicine between 1995 and 2000. Although he has no formal qualifications as a psychiatrist or psychologist he did work as a psychiatric registrar for 3 years in the Mental Health Service in Perth early in his career. 8 Subsequent to Patient A's complaint Dr Jebb joined the Australian College of Psychological Medicine. 9 Patient A's evidence was received in the form of a statement. She was not required for cross examination. Dr Jebb gave evidence by way of a statement which he adopted in the witness box and he then was cross examined. 10 Ms G Furness of Counsel appeared for the HCCC and Mr J Crisp of Counsel appeared for Dr Jebb. 11 The HCCC seeks a continuation of the conditions that have been in place since 2005 with two amendments. Dr Jebb consents to those conditions with agreed amendments. The orders set out at the beginning of this judgment in Order 1-6 are those agreed to by the parties. Order 7 is an order that the Tribunal is of the view should be imposed. 12 The HCCC seeks a finding that Dr Jebb's conduct constitutes professional misconduct within the meaning of s.37 of the Act, or in the alternative unsatisfactory professional conduct within the meaning of s.36. Professional misconduct, it will be observed, requires a finding of unsatisfactory professional conduct that is of sufficiently serious a nature as to justify suspension or deregistration. Dr Jebb accepts that his conduct constituted unsatisfactory professional conduct but disputes his conduct was sufficiently serious as to justify suspension or deregistration. The HCCC does not contend that Dr Jebb should be suspended or deregistered. 13 Patient A was referred to Dr Jebb for treatment by an acupuncturist. Patient A told Dr Jebb amongst other things that: "I am being psychically manipulated by my ex-hairdresser. I experience a sensation over my sacrum as though I am being pulled to him. He won't leave me alone". (para 5 Exhibit 1 Tab 1) 14 Dr Jebb says he made a provisional assessment that there was no evidence that Patient A had depression or was suffering from a psychiatric feature "except for the possibility posed by [Patient A s] pre-occupation with her ex-hairdresser". (para 5 Exhibit 1 Tab 1) 15 Dr Jebb treated Patient A over 23 sessions, from 2004 to April 2005. He agrees that he failed to maintain proper boundaries in his professional relationship with Patient A in each of the respects in particular 1, 2, 3 and 5 set out above. He agrees that he engaged in inappropriate physical contact – with Patient A. Patient A described the contact (p33 of her statement of 14 December 2005): "Anthony said he was initiating the hugs during the sessions as I had intimacy problems. He said that when women hug men they actually keep their pelvis away form the male and that this should not happen. He wanted to show me. He would get me to lean in closer so that my stomach would touch him and he would say you are not breathing into your lower abdomen. After he initiated touching in the lower abdomen, on one occasion when I tried to pull away and he wouldn't let me. I was too distraught to tell whether he was aroused by this. I just felt that it was wrong and I didn't feel comfortable with him. It happened numerous times. Towards the later stages, I can't remember if it was every time or just sometimes." 16 Dr Jebb admits that he divulged details of his personal life to Patient A including details of his personal and sexual relationships (see particular 2). According to Patient A he also said to her "If you were [a former patient of Dr Jebb in Western Australia with whom he said he had formed a relationship] and I liked that woman over there and the space between her legs, I would tell her" (para 20). She also said "he inferred that he could have had sex with me" (para 36), although the words actually spoken were not in evidence. 17 On reading Patient A's statement it is clear that Dr Jebb was acting well outside the boundaries of a doctor patient relationship and that objectively he appears to have been developing or attempting to develop a relationship that was romantic or sexual in orientation. Dr Jebb denies that he had such a intent but admits that Patient A may well have seen it that way. 18 The Tribunal thinks that Patient A was entitled to form that view. Dr Jebb sought to justify the individual acts – for example he says that he viewed a film with her because he had recommended that she see a series of movies with a view to discussing them with him, that he told her about himself because he thought that would help, that he saw her at his home because that was convenient for the Patient, but when one examines the material in its entirety, it appears to the Tribunal that Dr Jebb's activities were not solely directed to the welfare of Patient A but also related to his own needs. 19 Ms Furness relied on five matters in support of her submission that the conduct of Dr Jebb was professional misconduct namely: (1) that expert opinion obtained by the HCCC regards the conduct of Dr Jebb as deserving of severe disapproval (see the reports of Dr Beth Kotze, consultant psychiatrist, Tab 17 Exhibit A) and deserving of strong criticism in a number of respects (see the report of Dr L Mann, general practitioner, Tab 26 Exhibit A). In this context it should be noted that the Ethical Guidelines of the Psychotherapy & Counselling Federation of Australia ("PCFA") regard sexual relations between counsellor and patient as never acceptable and in its guideline states: "This is not restricted to sexual intercourse and includes any form of physical contact, whether initiated by the client or the counsellor, which has as its purpose some form of sexual gratification or which may be reasonably construed as having that purpose." (See Exhibit A Tab 28(iv)). The Royal Australian and New Zealand College of Psychiatrists ("RANZCP"), by its Code of Ethics, provides that sexual relationships with patients are always unethical and 2.7 provides "Sexual harassment or any behaviour which might be reasonably interpreted by a patient as demeaning or as a sexual advance, is unethical. Such behaviour may include physical contact, conduct, comments or innuendo of sexual nature or questioning on sexual matters which is not necessary for clinical purposes." (2) Dr Jebb had as at 2005 at least 16 years experience as a psychotherapist. He could not assert ignorance of the Code of Conduct which defines 'sexual' conduct very expansively and prohibits it. Dr Jebb in cross examination asserted that he was of the view that 'boundary crossing', that is where the practitioner does not follow the suggested framework of a psychotherapeutic setting, is permitted where the patient is robust and has an objective approach to their condition. Ms Furness submitted that it was clear that Patient A fitted into neither category and certainly not after she engaged in self-harm during her course of treatment. (3) Patient A was a patient presenting with a most vulnerable disposition, and even more so when she engaged in self harm. (4) Dr Jebb's activities were carried on over an extended period – over 6 months. The inappropriate conduct took many forms over that period, including telephone calls between sessions, a visit to her home, consultations in the lounge of her house, films, lunch, the provision of personal information about his life, and examining their respective astrological signs. (5) Dr Jebb did not consult any peer or mentor about the treatment for Patient A. 20 We were referred to the decision of Re Doctor Miliotis and the Medical Practice Act (No 40011 of 1959). The Tribunal in that matter considered a number of complaints against the doctor (including providing and administering drugs that were not approved under relevant legislation and for which there was no scientific basis or reputable medical opinion to support their use). One group of particulars was based on the practitioner having failed to maintain proper professional boundaries in that he hugged the patient during several sessions, discussed her appearance and sexual life during sessions in an inappropriate manner and telephoned her at home between sessions. The Tribunal found that his conduct constituted professional misconduct. That finding is quite discrete from the other findings which have no similarity with the present case. The Tribunal having found most of the other particulars of professional misconduct established, fined Dr Miliotis $25,000 but did not suspend or deregister him. The Tribunal set out a passage from the dissenting judgment of Priestly JA in Richter v Walton NSWCA 15 July 1993 unreported which was in the following terms: "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 commonplace medical matters, the trust a patient places in a doctor is considerable. In some cases, on 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 the 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 for some patients and for limited period, 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 high standards; all this being very much in the public interest." and described that as a guiding principle. 21 Mr Crisp submits that the conduct is not sufficiently serious to justify suspension or deregistration. He submitted that: (1) there was only one patient involved; (2) Dr Jebb denies any romantic interest in Patient A and Mr Crisp submitted that Dr Jebb's conduct was not deliberate or predatory; (3) Dr Jebb has shown insight into his conduct, is remorseful and has complied scrupulously with the conditions imposed on him; (4) Dr Jebb has never had any other complaint made against him notwithstanding his having practised since 1970 to 1994 and 2001 to 2005 (prior to commencement of supervision); (5) Dr Jebb has undertaken courses with the Australian and New Zealand Association of Psychotherapy and involved himself in other courses relating to topics relevant to psychotherapy: see paragraph 26 of Dr Jebb's statement. (6) Mr Crisp refers to the passage in the judgment of Sperling AJA in Sabag v Medical Tribunal [2001] NSWCA 411 at [83] with whom Beazley FA agreed, that the definition of "professional misconduct" involves a degree of seriousness sufficient to warrant supervision or deregistration and is "a matter of degree and judgement". 22 Items 20 (3), (4) and (5) appear to be matters that go to whether or not Dr Jebb should in fact be deregistered or suspended rather than how his conduct with Patient A should be categorised. We accept Ms Furness's submission that the first step is to consider whether the conduct which Dr Jebb is found to have engaged in, leads to a finding of professional misconduct – if it does then the question is what consequences ought flow. At that second stage items such as 20 (3), (4) and (5) can be taken into account. 23 We think that the fact that there is only one patient in respect of whom unprofessional conduct has occurred is relevant. We regard it as of critical significance that Dr Jebb engaged in the unprofessional conduct which he agrees he did engage in with a patient of particular vulnerability whose problems were linked to boundary setting issues including a perception (whether well founded or not) of child sexual abuse. The inappropriateness of Dr Jebb's conduct towards Patient A was amplified by the nature of her problems, the degree of instability that her history revealed, and his role as medical practitioner treating her in whom she was entitled to repose considerable confidence. Although the level of inappropriate contact was very much at the low end of the scale, the context reduces the significance of that aspect and it did involve touching for which the Tribunal is not satisfied there was any justification. The length of time for which it continued, the breach of conduct and the fact that he ought to have been aware that he has crossed the boundaries in many different respects are additional matters. Although Dr Jebb did make reference to the illness of his aunt as a stress factor, we are not satisfied that Dr Jebb provided any excuse for his conduct which might ameliorate its categorization. Patient A describes her feelings of subjugation and discomfort in para 16, 18, 34, 43, 48 and 52 and in para 48 she describes her reluctance to seek further professional help which she needed. We have difficulty in accepting Dr Jebb's assertion that he had no romantic interest in Patient A. 24 We note that Dr Jebb says that with what he has learnt since 2004 he would have diagnosed Patient A as having a delusional disorder and would give consideration to referring her to a psychiatrist or at least treating her with medication. Whilst supervision for case discussion is a commonly accepted practice and desirable in psychotherapy we do not think that Dr Jebb's failure to discuss Patient A's case with another psychotherapist increases the seriousness of his conduct and reliance on Particular 4 was expressly eschewed by the HCCC. 25 There is another matter which is relied on by the HCCC namely that Dr Jebb referred Patient A (at an early stage) to Maria Georgoulli who Dr Jebb describes as "a cranio-sacral body-worker" and to whom he referred Patient A he says "because my experience is that this therapy can put patients more in touch with their general body experience" (para 9 Exhibit 1 Tab 1) at a time that he was attending for his own treatment. Leaving aside the question of whether such a referral makes any sense either standing alone or in the context where Dr Jebb was treating Patient A – no issues of that kind were ventilated – by letter of 7 June 2006 Solicitors acting on behalf of Dr Jebb stated that: "He accepts that it was inappropriate to refer [Patient A] to a therapist whom he was also consulting. Dr Jebb has ceased referring patients to therapist he is also seeing and has reviewed his criteria for co-therapist selection". 26 Whilst of itself not of great significance the referral in the psychotherapeutic context and discussion of Patient A's condition with that therapist is another aspect of Dr Jebb's failure to maintain strict appropriate boundaries. 27 We accept the submissions identified in para 19(1), (2), (3) and (4) as significant issues in weighing the seriousness of the conduct and we conclude that Dr Jebb's conduct as particularised constitutes professional misconduct. 28 Having found that Dr Jebb's conduct should be categorised as professional misconduct the question arises as to what consequences should flow. 29 Re Wingate was relied on by the HCCC in submissions and no issue was taken by Mr Crisp with the formulation at [69] "The object of the MPA is to protect the health and safety of the public. It has always been accepted that the role of the Tribunal is not to punish the practitioner. It is clear that the standing of the profession is a matter of significance, so that all understand that coupled with the considerable rights and benefits that come with the ability to practise an important profession come significant obligations. Maintenance of the standards of the medical profession and public confidence in the medical profession are matters that the Tribunal must take into account as part of the consideration of protection of the public: Gayed v Walton (unreported, NSWCA, 31/7/1997, BC9708087). Deterrence is a relevant matter: see Bannister v Walton (unreported, NSWCA, 30/04/92, BC9201911), and Gayed v Walton ." 30 We have noted that the HCCC and Dr Jebb have agreed on the consequential orders that ought be made. We accept that a finding of professional misconduct does not compel suspension or deregistration – the word used by s37 in defining professional misconduct is "justifies" not "compels" or "requires" (see also the Tribunal's decision in Re Dr B v The Medical Practice Act (17 May 2007 unreported) p25 in which a similar approach has been taken), and as Ms Furness submitted the Tribunal in making orders must consider the practitioner's fitness to practice medicine now rather than at the time of the impugned conduct and must not lose sight of the protective nature of the jurisdiction. 31 In support of the submission that Dr Jebb ought not be suspended or deregistered are the following matters: (1) the willingness of Dr Jebb to attend all supervisory sessions required of him. (2) the positive nature of the reports issued by Dr Lonie, who although engaged by Dr Jebb, was a medical practitioner approved by the Board as his supervisor. (3) Dr Jebb's acceptance of continued supervision (albeit at less frequent intervals). (4) Dr Jebb's consultations with a psychiatrist over the last 2 years. (5) the small number of patients seen by Dr Jebb and more importantly, the restrictions as to the class of patients whom he is permitted to treat to which he agrees. (6) the fact that Dr Jebb does not prescribe medications and essentially practices only psychotherapy. (7) the support he has received from several colleagues, Dr Harry Haber, Dr John Books. (See Tab 6 and Tab 7 Exhibit 1) and a testimonial from Ms Sabine. (8) the expression of opinion by Dr Lonie – that Dr Jebb is highly unlikely to repeat the conduct of the kind in question here - see Tab 3 of Exhibit 1 and the details of his efforts to address matters giving rise to his conduct. (9) the fact that, on the evidence before the Tribunal, he has never been the subject of complaint before this matter, he having practised for at least 16 years in psychotherapy before this complaint. 32 In cross examination the very positive impression created by the documentary material was to some degree undermined by Dr Jebb's attempts to justify his conduct on the basis that Patient A fell into a class which it was not inappropriate to have contact outside the surgery, caused the Tribunal disquiet, as did his answers concerning the content of his letter to Patient A asserting that he has behaved in an "absolutely professional and competent manner", T28-30, and his limited interest in obtaining the guidelines of the PCFA (T39) other than in the context of these proceedings. 33 The impugned conduct and the concerns to which we have referred lead us to view the proposed restrictions on practice as appropriate lead us to add a further express restriction which is that treatment should occur only in rooms at a medical practice and not in a private residence. 34 The HCCC submitted that is was appropriate that a reprimand be issued by the Tribunal. The Tribunal agrees that Dr Jebb should be reprimanded in the following terms: Dr Jebb be reprimanded in respect of his conduct in relation to Patient A. 35 Accordingly the orders of the Tribunal are: 1. Dr Jebb must limit his practice to providing treatment in accordance with his level of competence in that he only provides treatment to his standard group of patients. The 'Standard Group of Patients' is defined as a. Patients who present with mixed anxiety and depressive symptoms in the 20 to 50 year age group, both male and female. Underlying stressors in this group range from relationship breakdown (personal, family, workplace and social) and physical impairment to phase of life issues. b. Patients with borderline personality disorder, unstabilised psychotic conditions or severe narcissistic personality disorder fall outside the standard group of patients for Dr Jebb. c. Patients requiring stabilising medication for their conditions are referred to other practitioners and fall outside this group of patients. 2. Dr Jebb is to nominate a supervisor, expert and experienced in psychotherapy, to be approved by the NSW Medical Board, to monitor and review his clinical practice in accordance with Level 3 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 the decision from the s66 Inquiry held on 9 November 2005 together with a copy of these reasons for judgment. Any costs of the supervision and subsequent reports must be borne by Dr Jebb. The supervisor and Dr Jebb are to: a. Meet on a monthly basis for at least 50 minutes. b. Address during these meetings: i. the initial assessment and screening of all new patients, and review of existing patients as to their appropriateness to be treated by Dr Jebb, ii. preservation of professional boundaries, iii. mode of therapy, and iv. overall patient care and management. c. At each meeting the supervisor is to complete a record of matters discussed at the meetings in a format which is to be approved by the NSW Medical Board. d. Dr Jebb is to authorise the supervisor to provide such information to the NSW Medical Board. e. The supervisor is to provide a report to the NSW Medical Board, initially on a monthly basis, for the first three months and then subsequently on a three-monthly basis, in a format prescribed by the NSW Medical Board. f. The supervisor is required to inform the NSW Medical Board immediately if there is any concern in relation to Dr Jebb's compliance with the supervision requirements, compliance with other conditions of registration, clinical performance, health, or if the supervisor relationship ceases. 3. Dr Jebb must see patients only in premises forming part of a medical practice and not in a private residence. 4. Dr Jebb must seek and obtain NSW Medical Board approval prior to changing the nature or place of practice. 5. Dr Jebb must participate in continuing medical education with an accredited psychotherapy body. Dr Jebb must provide written evidence to the NSW Medical Board of his participation, on a 6 monthly basis, and then at such further intervals as determined by the NSW Medical Board. 6. Dr Jebb is to attend for a Review Interview at the NSW Medical Board, as directed by the NSW Medical Board, at six monthly intervals. 7. The appropriate review body is the NSW Medical Board for the purposes of s.92 and 93 of the Act. 8. Dr Jebb be reprimanded in respect of his conduct in relation to Patient A. Costs The Tribunal will hear the parties on the issue of costs. ********** 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.