Heath Care Complaints Commission v Dr Joseph Nicholas [2011] NSWMT 2

Medical Tribunal New South Wales Medium Neutral Citation: Heath Care Complaints Commission v Dr Joseph Nicholas [2011] NSWMT 2 Hearing dates: 21.3.11-23.3.11 Decision date: 30 March 2011 Before: Dr Saw-Hooi Toh Dr Richard Gordon Ms Annette Gray Murrell SC DCJ Decision: Reprimand and imposition of conditions, see paragraph 64. Catchwords: Unsatisfactory professional conduct, financial and business dealings between practitioner and patient, record keeping, no abuse of trust Legislation Cited: Medical Practice Act 1992 Cases Cited: Jarvis and the Medical Practice Act NSW (Medical Tribunal, 29 November 2002) Law Society of NSW v Foreman (1994) 34 NSWLR 408 Daskalopoulos v Health Care Complaints Commission [2002] NSWCA 200 Category: Principal judgment Parties: Health Care Complaints Commission Dr Joseph Nicholas Representation: Ms McDonald SC Ms Horvath Ms Richmond, HCCC Ms Officer, Holman Webb Lawyers File Number(s): 40003/10

Judgment 1Since 1982, Dr Nicholas (the practitioner) has practised as a sole general practitioner in suburban Sydney. Mr X (the patient) was his patient. By late 2005, the patient and the practitioner were close friends. Following the failure of the patient's business, between late 2005 and 2008 the practitioner treated the patient for chronic anxiety and depression of fluctuating severity, and other conditions. In addition to their therapeutic and friendship relationships, between 2004 and 2008 the patient and the practitioner had financial and business relationships. Between late 2006 and early 2008, the patient worked for companies in which the practitioner had a substantial beneficial interest. Between late 2006 and mid 2007, the practitioner advanced at least $271,000 to the patient and his family. 2In 2008, the patient terminated his dealings with the practitioner. In December 2008, he lodged a complaint with the Health Care Complaints Commission (HCCC) (Exhibit A, tab 3). In September 2009, the patient died in a motor vehicle accident (Exhibit A, tab 5(b)). 3By a complaint dated 9 January 2010, the HCCC complains that the practitioner has been guilty of unsatisfactory professional conduct and/or professional misconduct (Exhibit A, tab 1). The complaint relates to: (i)A business relationship between the practitioner and the patient through a company known as PJP. (ii)A business relationship between the practitioner and the patient through TJR and the MTXT, from which TJR operated. (iii)Moneys advanced by the practitioner to the patient and his family in the sums of approximately $60,000 (November 2006); $160,000 (May 2007); $36,000 (June 2007); $15,000 (from late 2006 to 2008), claims for repayment of those moneys, a claim for 10% interest on the sums advanced. (iv)Inadequate patient records for the period January 2007 to July 2008. 4As a consequence of the patient's untimely demise, the assertions contained in his statement to the HCCC could not be tested before the Tribunal. Fortunately, the practitioner did not dispute the critical aspects of the patient's claim. 5The practitioner gave evidence before the Tribunal. The Tribunal found him to be generally forthright and reliable. The Tribunal found no fault with the treatment that the practitioner had provided to the patient. There was no evidence that the financial and business relationship between the practitioner and the patient had actually harmed the patient. There was no suggestion that, in entering financial and business arrangements with the patient, the practitioner had acted malevolently or had deliberately abused the patient's trust. Rather, the Tribunal finds that he was motivated by friendship, confidence in the patient's business acumen, a desire to recover moneys already advanced and an entrepreneurial spirit. Unfortunately, he failed to identify and address the many boundary issues arising from his multi-faceted association with the patient. These failures exposed the patient to a risk of harm.