Health Care Complaints Commission v Holmes [2010] NSWMT 19

New South Wales Medical Tribunal

CITATION : Health Care Complaints Commission v Holmes [2010] NSWMT 19 TRIBUNAL: Medical Tribunal PARTIES : Health Care Complaints Commission (Complainant) Dr John Gerard Holmes (Respondent) FILE NUMBER(S) : 40005 of 2010 CORAM: Staff J - Toh, Dr S - de Carvalho, Dr V - Mair, Dr J CATCHWORDS: PROFESSIONAL MISCONDUCT :- sexual relations with patient - conduct admitted by medical practitioner - civil penalty - principles - removal from register - whether permanently unfit to practice - genuine contrition - real and genuine insight into unethical conduct - practitioner suspended - conditions imposed - costs. LEGISLATION CITED: Evidence Act 1995 Medical Practice Act 1992 A Solicitor v Council of the Law Society of New South Wales (2004) 216 CLR 253; Australian Competition and Consumer Commission v Dataline.Net.Au Pty Ltd (in liquidation) [2007] FCAFC 146; (2007) 161 FCR 513; Briginshaw v Briginshaw & Anor (1938) 60 CLR 336; Childs v Walton [1990] NSWCA 41; Davison v Council of the New South Wales Bar Association [2007] NSWCA 227; Gad v Health Care Complaints Commission [2002] NSWCA 111; Health Care Complaints Commission v Karalasingham [2007] NSWCA 267; Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630; Health Care Complaints Commission v Howe [2010] NSWMT 12; HCCC v Dr Mark Fairbrother [2008] NSWMT 5; HCCC v Dr Marcus Stoodley (Medical Tribunal, 5 November 2008); CASES CITED: In Re Dr David John ELLIS [2006] NSWMT 9; In Re Dr B [2007] NSWMT 4; In Re Dr Geoffrey Robert Abrahams and the Medical Practice Act (Medical Tribunal, 14 December 1990); In Re Dr Roger Steven Jones and the Medical Practice Act [2005] NSWMT 9; Medical Board of Queensland v Thurling [2003] QCA 518; New South Wales Bar Association v Cummins [2001] NSWCA 284; (2001) 52 NSWLR 279; NSW Medical Board v Dinakar [2009] NSWMT 8; Ponzio v B & P Caelli Constructions Pty Ltd [2007] FCAFC 65; (2007) 158 FCR 543; Prakash v Health Care Complaints Commission [2006] NSWCA 153; Re the Medical Practice Act 1992 and Dr. Stuart Anderson [2004] NSWMT 3; Re Dr Parajuli [2010] NSWMT 3; Saville v Health Care Complaints Commission & Anor [2006] NSWCA 298 DATES OF HEARING: 29 November 2010 DATE OF JUDGMENT: 14 December 2010 Ms K Stern of counsel (Complainant) LEGAL REPRESENTATIVES: Health Care Complaints Commission Mr M Lynch of counsel (Respondent) Peter A Smith Law Practice ORDERS: 1. Pursuant to s 64(1)(b) of the Medical Practice Act 1992, the Tribunal suspends Dr John Gerard Holmes from practising as a medical practitioner for a period of 12 months. 2. Dr Holmes is to pay the HCCC's costs of these proceedings, on the ordinary basis as defined in Sch 3 of the Civil Procedure Act 2005. 3. Pursuant to s 61(1)(c) of the Medical Practice Act, the Tribunal directs the following conditions be imposed upon Dr Holmes' registration; Health; 3.1 to continue to attend for treatment with his psychiatrist, Dr Johns, at his own costs, at a frequency to be determined by Dr Johns; 3.2 to authorise Dr Johns to inform the Medical Council of New South Wales of any failure to attend for treatment, termination of treatment, or if there is a significant change in health status; Education and Medical Ethics; 4. To complete at his own expense, the course on Medical Ethics conducted in distance mode by the Department of General Practice, Monash University, Victoria. The course must be completed during Dr Holmes' period of suspension; 4.1 Within two weeks of completing the Medical Ethics course, to provide documentary evidence to the Medical Council of New South Wales that he has satisfactorily completed the course; 4.2 Within eight weeks of the date of this decision, the practitioner must provide evidence to the New South Wales Medical Council that he has enrolled in the Medical Ethics course; 5. These conditions may be varied, amended or removed at the discretion of the New South Wales Medical Council.