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. History of the relationship between practitioner and patient 6The patient, his wife and the patient's two adult children first consulted the practitioner in 2002. At that time, the patient ran a successful company and was a councillor on the local council. In May 2004, the patient presented with "panic/depression". The practitioner prescribed an antidepressant (Exhibit A, tab 9). In 2004, the practitioner accepted the patient's invitation to act as company doctor for the patient's company. By late 2005, the practitioner and the patient had become close friends (Exhibit 1, tab 1). In late 2005, the patient's company lost its main contract. As a consequence, the patient became unemployed. In early 2006, the patient's business problems reached crisis point (Exhibit A, tab 4). 7The patient consulted the practitioner in relation to the stress arising from his business problems. On 1 February 2006, the patient presented to the practitioner "extremely stressed". The practitioner diagnosed anxiety, depression and mood disorder. The practitioner prescribed Zoloft 50 mg. Zoloft is an SSRI antidepressant that is also used to treat anxiety (Exhibit A, tab 9). As the patient's nominated treating doctor, the practitioner completed Work Cover medical certificates stating that the patient was unfit for work as a result of a work-related anxiety disorder (Exhibit A, tab 12). Two weeks later, the practitioner prescribed Murelax, a benzodiazepine, to be used "as required" for agitation. Zoloft was continued. On 21 February 2006, the patient experienced a panic attack (Exhibit A, tab 9). The practitioner referred him to a psychologist (Exhibit A, tab 12). The patient saw the psychologist regularly until at least July 2006. 8The patient's condition did not improve. On 8 March 2006, the practitioner increased the Zoloft dose to 100 mg/day. When seen on 10,15 and 23 March, the patient remained agitated. The practitioner prescribed Xanax, a benzodiazepine used to manage anxiety and panic disorders. Zoloft was continued (Exhibit A, tab 9). 9In March 2006, the patient's daughter began to work as the practitioner's secretary. She retained the position until mid-2008. 10On 2 June 2006, the practitioner increased the patient's Zoloft intake to two doses of 100 mg/day, but the patient remained deeply depressed. He was concerned about impending bankruptcy and lack of work. On 7 July 2006, the practitioner decreased the dose of Xanax as the patient appeared to be improving. On 17 July 2006, the practitioner increased the dose of Zoloft to 300 mg per day. On 27 July 2006, the practitioner noted some improvement in the patient's condition. However, in the period 30 August to 10 October 2006 (including on 26 September 2006), the patient attended seven consultations. He was stressed and agitated in relation to his inability to find employment and the financial threat to the family home. The patient remained on Xanax (Exhibit A, tab 9). 11The practitioner was a director of PSM, a publicly listed company that wished to develop and market PSM products. On 26 September 2006, at the practitioner's request, the patient used his role as a councillor to propose that the J Council purchase a PSM product. As a consequence, in October 2006 the practitioner met with Council officers to discuss the development of the PSM product to meet the Council's needs. In November 2006, the patient wrote to the Local Member of Parliament, inviting him to a meeting with local business people to discuss the PSM product. In the letter, the patient stated: "I am now working with Dr Nicholas". The practitioner stated that the patient was working on a commission basis in relation to the sale of PSM products, but the patient achieved no sales (T79.50-T84.17, Exhibit A, tab 20). 12During 2006, the practitioner became interested in medical response planning. He registered the business name "MLT" and took a stall at the October 2006 MSA, which he called the "MLT Store". The practitioner accepted the patient's offer to assist on the stall (Exhibit 1, tab 1). The patient notes for 24 October 2006 record: " Enjoyed work experience at (MSA)" and "Consider work placement" (Exhibit A, tab 9). 13On 3 November 2006, the company PJP was registered as a vehicle for promoting PSM products and providing medical response planning. The shareholders were the practitioner, the practitioner's brother-in-law and the patient's family company. Each had a one third share (Exhibit A, tab 5, Annexure A). The patient's role was to provide business contacts through his position as a councillor and his involvement in the local community and the transport industry (Exhibit 1, tab 1, par 51). 14In early November 2006, the patient asked the practitioner whether he would advance the patient about $60,000 because the patient wished to avoid bank foreclosure on his family home. The practitioner asserts that the patient agreed to repay the moneys with interest. The practitioner obtained a $50,000 line of credit and added $10,000 of his own funds. He presented the patient with a cheque for $60,000 (Exhibit 1, tab 1, par 32-42). 15Between January and June 2007, the patient and his wife worked for PJP. They undertook activities such as checking a PSM product. As part of a Job Cover Placement Program, the patient was "placed" with PJP. For a period from 1 February 2007, PJP claimed a weekly allowance under the Program. In relation to this " return to work" plan, the practitioner was both the patient's "nominated treating doctor" and his (undisclosed) effective employer (Exhibit 1, tab 4; Exhibit A, tab 12). 16In early 2007, the practitioner and the patient discussed the establishment of a company for the purpose of acquiring the trucks that had been owned by the patient's failed transport company. The patient maintained that the trucks were worth $600,000 but could be acquired for $150,000 from a company owned by a man who owed money to the patient. The patient proposed that if money was paid for the acquisition of the trucks, the patient could be repaid, and then repay the sum of $60,000 that he owed to the practitioner. The patient offered to use his expertise to run the new company. 17The practitioner agreed to the proposal because it would enable him to recover the sum of $60,000 and it made good business sense. In February 2007, TJR was incorporated. The practitioner was the sole director. The trucks were valued at a sum much lower than the suggested $600,000 and TJR paid $130,000 to acquire the trucks. 18From the outset, it was agreed between the practitioner and the patient that, at some stage, the patient would acquire a 40% shareholding in TJR. The practitioner says that the arrangement was conditional on TJR maintaining profitability for 12 months. The patient maintained that the arrangement was unconditional. Further, the patient asserted that $600,000 was to be paid by TJR to PJP, which was to pay the vendor company (T106.34-109, Exhibit A, tab 4, Annexure I). Somehow, through a "round robin" financial dealing, the patient would receive a sum of $150,000 (T108.3). 19In April 2007, the practitioner purchased the MTXT (on MT Street) for the purpose of parking the TJR trucks. The patient asserted that he was to receive 25% of the property at MT Street in return for working at TJR. 20From 1 April 2007, TJR employed the patient as trucking manager. He was answerable to the practitioner. TJR paid the patient an annual salary of $125,000, plus superannuation and overtime. As the practitioner's surgery was close to the MTXT from which TJR operated, about three times a week the practitioner and the patient lunched together at the surgery. On every such occasion, they discussed TJR business. 21In April and May 2007, the patient consulted the practitioner in relation to "stress" and the prescription of Zoloft. 22On 7 May 2007, the patient entered a Part X personal insolvency agreement with his creditors, pursuant to which he paid the creditors a total sum of $150,000. The practitioner advanced this sum to the patient. The practitioner paid a further $10,000 in associated fees. The advance was motivated by the practitioner's personal and business relationships with the patient. 23The patient asserted that the sum of $150,000 was due to him pursuant to the arrangement by which TJR acquired the FSL fleet (Exhibit A, tab 4, par 18) : "I had assumed that the money Dr Nicholas put up for me in the personal insolvency agreement would either be a gift or effectively my contribution to (TJR)." The patient also said (par 28): "I don't ever recall any discussion about whether it was going to be a loan or a gift. I think I thought that it was a gift, now I realise that my understanding was probably affected by the medications" The Tribunal observes that the patient's stated expectations of receiving a 40% interest in TJR (regardless of profitability), a sum of $150,000 (for assets that he no longer owned and which were valued at only $130,000) and a 25% interest in a valuable property (when he had contributed nothing to the purchase price) were- to say the least- unrealistic. There was no medical evidence that the patient's understanding was affected by medication. 24On 5 June 2007, TJR gave a cheque for $39,567 to the patient's family. The cheque was made out to a loan account in the name of the patient's children. The advance was to cover arrears on the home loan account. At the time that the money was advanced, the patient, his wife and their single adult children occupied the home. At this stage, the patient's daughter was secretary to both TJR and the practitioner. At about this time, the patient's son also began to work for TJR. 25In February 2008, there was a meeting between the practitioner and the patient. The patient produced a "draft only" letter (Exhibit 1, tab 1, Annexure J) in which he stated that he wanted 40% of the profits of TJR and wanted to be a director of TJR. The letter thanked the practitioner for his support "both mentally and physically". The practitioner says that he gave the patient a copy of the company accounts to November 2007 (Exhibit 1, tab 1, Annexure H) and stated that the patient could have a 40% share in TJR but would be responsible for 40% of losses. The practitioner says that patient declined the offer, stating that he did not want to be responsible for 40% of the losses (T106.35). 26The practitioner prepared a list of moneys claimed, which he forwarded to the patient with a letter of resignation and other documents (Exhibit A, tab 4, Annexure M). The list referred to loans totalling $366,000 ($160,000, $72,000, $81,000, $23,000 and $30,000), and made a claim for 10% interest on the loans. The practitioner says that, following discussion, it was agreed that the debt was $345,000 plus 10% interest, a total of $379,000. Annexure M does contain a notation in the patient's handwriting that is consistent with this assertion. It is clear from the patient's handwritten notes on Annexure M that, at least, the patient accepted that there had been loans totalling $271,000 ($160,000, $60,000, $36,000 and $15,000). 27The patient and his son left TJR and started a new business. No moneys were repaid. 28In October 2008, the practitioner received a demand for repayment of the $50,000 that he had borrowed. In November 2008, he utilised professional letterhead to make demand that the patient immediately repay a loan of $72,000 re "the first loan to your family to secure your old home" plus two years interest of $14,40 (Exhibit A, tab 4, Annexure "L"). A similar letter was sent to "Aldo", the patient's solicitor. 29In the February 2009 statement that he made to the HCCC (Exhibit A, tab 4), the patient denied that he had discussed the payment of any interest on an advance (par 24). He disputed the figures in Annexure M. He stated that he remained unclear "whether, at the time, they were supposed to be loans, gifts, or part of a wider investment in the business" (par 24). He stated that he had been "under the impression" that the practitioner "was helping" him and that, he could repay the practitioner "once (he) was on his feet" (par 26). The patient also stated (par 30): "I had a gambling problem too ... I was using the (TJR) credit cards to access money to gamble with. This could have totalled money in the tens of thousands...This was still happening up until March 2008". There is no evidence that the practitioner knew that the patient was a gambler. Record Keeping 30Pursuant to section 36 of the Medical Practice Act 1992, "unsatisfactory professional conduct" is defined to include: "(b) Any contravention by the practitioner (whether by act or omission) of a provision of this Act or the regulations..." 31Under clause 5 of the Medical Practice Regulation 2003, the practitioner was required to keep a record in accordance with Schedule 2 of the Regulation. Inter alia, Schedule 2 required that a record include information relevant to diagnosis and treatment, and notes of information or advice given to the patient. Schedule 2 clause 1 (4) provided: "1(4)A record must include the following particulars of any medical treatment ... (a) the date of the treatment, (b) the nature of the treatment, ..." Schedule 2 clause 2 provided: "(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 registered medical practitioner to continue management of the patient's case. ..." 32Between July and December 2007, there were six occasions when a Medicare claim was made (usually associated with the writing of a prescription) but there was no supporting record (Exhibit B). Prior to this period, there were only two occasions when a Medicare claim was not supported by patient records. 33The practitioner suggested that the absence of patient records may be because he refrained from making notes concerning a "sensitive matter" that the patient raised with him. In the Tribunal's view, the sensitivity of subject matter cannot excuse the absence of a medical record. The practitioner could have recorded the date of the consultation and noted that he had counselled the patient. The practitioner may have been mindful that, in her capacity as practice secretary, the patient's daughter had access to the patient's records. If so, the practitioner should have taken appropriate steps to protect the confidentiality of the records. 34Dr Young, an experienced general practitioner, provided peer review reports for the HCCC (Exhibit A, tab 24; tab 25; tab 29). He considered that the practitioner's record - keeping was deficient, but not significantly below the standard required, i.e. to keep clear, accurate and contemporaneous records. He identified a problem of illegibility and considered that the notes were a little confusing because the practitioner did not use common acronyms. Dr Young contrasted the 2007 patient notes with those for 2005/2006, stating that the latter were more thorough and demonstrated continuing patient care. Nevertheless, in Dr Young's opinion, an incoming practitioner could have managed the patient based on the practitioner's notes (T25.36-27.20). 35Dr Fisher, the experienced general practitioner who provided a peer review report on behalf of the practitioner, described the notes as "untidy" but "sufficient together with referrals and reports to give a good clinical picture of (the patient's) illness" (Exhibit 1, tab 2, par 5(ii)). 36The medical practitioner members of the Tribunal agree that, despite the brevity of some of the notes and the absence of patient notes for some 2007 attendances, when the notes are viewed as a whole it is possible to understand the patient's case. 37While there was no breach of the Regulation requirement that the patient notes include sufficient information to allow another registered medical practitioner to continue management of the patient. The practitioner's failure to record the date or nature of treatment provided on seven occasions in 2007 does constitutes a breach of the Regulation. In order to amount to unsatisfactory professional conduct, a breach does not have to be a serious breach. Consequently, the Tribunal finds that the practitioner is guilty of unsatisfactory professional misconduct in relation to his 2007 record-keeping. 38In evidence, the practitioner asserted that he now utilises computerised record keeping and that, as a result, his record-keeping is much improved (T77.1-12). The Tribunal considers it advisable that there be an audit for the purpose of confirming these assertions. Medical Board Policy on Financial and Business Dealings 39Standard 2 of the Code of Professional Conduct (Exhibit A, tab 26) is entitled "Professional/Ethical Obligations". Relevantly, the Standard provides: "2.3.1 Maintaining trust with and providing information to patients Successful relationships between doctors and patients depend on trust. To establish and maintain that trust you should: ... d) observe professional boundaries with patients. This includes not engaging in personal relationships or sexual behaviour with patients ... ... 2.8 Abuse of your professional position 2.8.1 You must not abuse your patient's trust. You must not, for example: a) use your position to establish improper personal relationships with patients or their close relatives; b) put pressure on your patients to give or lend money or to provide other benefits to you or other people ..." 40Doctors Young and Fisher agreed that Standard 2 was not relevant. There was no evidence that the practitioner had pressured the patient to enter loans or business relationships, and there was no evidence that the patient had provided the doctor with a benefit. They concluded that there was no evidence of abuse of patient trust (T63.6; T27.45; T28.5). The Tribunal agrees with this conclusion. 41Standard 4 is entitled "Probity in Professional Practice". Relevantly, the Standard provides: "4.1 Financial and commercial dealings 4.1.1 You must be honest in financial and commercial matters relating to your work. In particular you should: ... b) avoid financial involvement such as loans and investment schemes with patients. There may be a detrimental effect on a therapeutic relationship with a patient if therapeutic and financial aspects in a relationship between a doctor and patient combined (see also Guideline concerning financial matters on the Board's website at www.nswmb.org.au) There is no Guideline. 42In Jarvis and the Medical Practice Act NSW (Medical Tribunal, 29 November 2002), the Tribunal recommended that the Board formulate guidelines for practitioners in relation to financial and commercial transactions with patients (at 170). Between February 2005 and May 2006, the Conduct Committee of the Board developed a draft policy (Exhibit A, tab 29). Inter alia, the draft policy stated: "4. There may be a detrimental effect on the therapeutic relationship with the patient if therapeutic and financial aspects in a relationship between a doctor and patient combined. 5. Generally speaking, it will be unsatisfactory professional conduct for a practitioner to engage in a financial transaction with the patient. 6. There may be limited circumstances in which engaging in a financial transaction with the patient may not be considered to be unsatisfactory professional conduct, including where the patient has received independent advice, the practitioner has disclosed his/her financial circumstances and there is security provided, or where the nature of the doctor/patient relationship is episodic or transient. In such circumstances it would be advisable for the doctor/patient relationship to be terminated as the potential for conflict referred to in 4 above will still exist." 43On 7 June 2006, the Board considered the draft policy, noted that "many doctors apparently enter" into financial transactions with patients, that "the question may be one of the magnitude of the transaction" and that it may be better to have guidelines rather than a policy (Exhibit A, tab 29). The policy was re drafted in September 2008. Inter alia, the re-drafted policy provides: "3. This policy relates to medical practitioners engaging in financial transactions which are outside the normal course of payment for goods or services provided by or on behalf of the doctor or patient. ... 6. Concurrent financial and doctor/patient relationships should be avoided if at all possible, as there is potential for there to be a detrimental effect on the therapeutic relationship as a result of a real or perceived conflict of interest. It is desirable that the doctor/patient relationship be terminated or suspended prior to the commencement of a financial relationship between the doctor and patient. 7. Where such concurrent relationships are unavoidable, medical practitioners should give consideration to the interests and rights of the patient and as far as possible ensure their protection in any financial arrangement. 8. In some circumstances, it may be considered unsatisfactory professional conduct for a practitioner to engage in a financial transaction with a patient. ... 9. Factors taken into account in deciding whether a financial transaction with the patient constitutes unsatisfactory professional conduct include: the size of the financial transaction the intent of the financial arrangement the context of the financial relationship, and whether or not it is directly related to the medical practice whether the patient was advised to take independent financial advice the nature of the therapeutic relationship, and whether it is ongoing, episodic or transient the timing of the establishment of the therapeutic and financial relationships available alternatives for both parties the level of real or perceived influence exerted by the medical practitioner the vulnerability and competence of the patient the role of the medical practitioner in the arrangement" 44The Board has adopted neither the May 2006 draft policy nor the September 2008 draft policy. Nor has either draft policy been published or promulgated to practitioners. There is no suggestion that either draft policy was or should have been known to the practitioner. However, both draft policies provide insight into the approach to practitioner/patient financial dealings that a group of practitioners associated with the Board has considered to be appropriate and the reasons for the approach. In the Tribunal's view, the draft policies articulate matters that are important to a determination of the propriety of financial and business relationships between practitioners and patients. The Peer Review Evidence 45Doctors Young and Fisher agreed that, by engaging in significant and repeated financial and business interactions with the patient, the practitioner transgressed doctor/patient boundaries. Dr Fisher stated (Exhibit 1, tab2): "I consider the boundaries between the therapeutic relationship and business relationship became blurred long before the loans were made. (The patient) befriended (the practitioner) by inviting him socially to various functions. He then set up a business relationship with him by appointing him the company doctor to his trucking company. I consider that this placed a mutual obligation on both men outside the therapeutic relationship..." Dr Fisher stated that the financial arrangements with the patient fell below the standard expected of a practitioner of equivalent training and experience. In his opinion, not all financial/business dealings between practitioners and patients were inappropriate. It was up to practitioners to set the boundaries of such relationships. His criticism of the practitioner was "mild to moderate" because the practitioner had acted with good intentions: he had been attempting to rehabilitate the patient (T63.2; Exhibit 1, tab 2, par 5(iii)). 46Dr Young considered that the boundaries of the practitioner/patient relationship were first blurred in late 2006, when the patient promoted PSM products. The practitioner's financial involvement attracted his "strong criticism" (Exhibit A, tab 29; T13.21). Dr Young said that, when a patient suffered from a psychological problem, it was particularly important to maintain boundaries because such a patient may find it harder to recognize the boundaries. He pointed out the inherent difficulties in any business relationship between a patient and a doctor. While a business relationship should be an equal relationship, a therapeutic relationship was, by definition, unequal because the doctor had "added information" (T15.24-29). Dr Young observed that problems were most likely to arise if the business relationship turned sour. In that event, a patient would be unable to turn to the therapeutic relationship for support (T16.25-34). Dr Young pointed out that there were plenty of business opportunities available to doctors without the need to engage in business with patients (T34.36). 47As to a doctor accepting a friend as a patient, Dr Young considered that it was better to avoid such a situation. The preferable course was to suggest that the friend see another doctor. On the other hand, he understood that a friend may seek to become a patient because the friend has confidence in the practitioner and believes that the practitioner is equipped to deliver excellent medical treatment. Similarly, Dr Young considered that, if a doctor developed a friendship with a patient, the preferable course was to suggest that the patient consult another doctor. On the other hand, if the patient was merely consulting the doctor for routine problems and if boundaries were discussed, it may well be possible to maintain an appropriate doctor/patient relationship. Dr Young pointed out that it was easier to acquire patients than it was to acquire friends (T21.6-33). 48As to the business relationship between the practitioner and the patient, Dr Young said that it was undesirable for any patient to be "beholden" to his or her doctor (T28.16-21). Consequently, in this case it did not matter whether the money advanced by the practitioner was a gift or a loan. When a patient was suffering from business-related stress, a doctor should act as a "neutral helper" (T37.28-30; T37.37). It was anti-therapeutic for a doctor to allow a patient to become dependent, relying upon the doctor to solve his or her financial problems. In this case, a therapeutic approach would have been for the practitioner to propose that the patient see a financial adviser. While there was no suggestion that the practitioner had taken advantage of the patient, he should have avoided a situation where he was in a position to take advantage of the patient. The Tribunal's Analysis 49It is a key component of ethical medical practice that the care of the patient be the practitioner's primary concern: first "key component" in the Code of Professional Conduct (Exhibit A, tabs 26 and 27). Proper care, the maintenance of patient trust and the avoidance of patient abuse depend upon the observance of professional boundaries with patients: Standards 2.3.1 and 2.8.1 of the Code. 50A therapeutic relationship is, by definition, unequal: the evidence of Dr Young. Friendship and business relationships are often equal relationships, involving mutual obligation. It is assumed that the parties to such relationships will take responsibility for themselves. Depending upon the nature of a friendship or business relationship and the nature of a therapeutic relationship between the same parties, it may be possible to identify a boundary and quarantine the therapeutic relationship. In determining whether a financial/business relationship is capable of being quarantined from a therapeutic relationship and, if so, how the boundary is to be established, it is relevant to consider matters such as those mentioned in paragraph 9 of the 2008 draft policy. 51In this case, the practitioner failed to identify the following potential conflicts in his relationships with the patient: (1)In 2004, the practitioner accepted the role of company doctor, although it involved a business relationship with a patient with whom the practitioner was developing a friendship. (2)In late 2005/early 2006 the practitioner began to treat the patient for significant psychological problems induced by financial and business pressures. By that stage, the patient was a close friend. (3)During late 2006, it was apparent that the patient had a chronic psychological problem related to financial and business pressures. In September/October 2006, the patient was consulting the practitioner on a weekly basis in relation to his psychological problems. In September/October the practitioner allowed (and presumably encouraged) the patient to promote PSM products through the patient's business and community contacts, and to assist the practitioner on his "MLT" stall. The work on the stall was mentioned in the patient notes, suggesting that it was considered to be part of the patient's treatment, although the immediate purpose of the work was to promote the practitioner's business interests. In November 2006, the patient's past and potential future business contribution was recognized when PJP was incorporated and the patient received an indirect one third beneficial interest in PJP. (4)In the context that the patient was promoting the practitioner's PSM business and was acquiring a shareholding in PJP, but primarily motivated by friendship, in November 2006 the practitioner loaned the patient $60,000 (a very substantial sum) in an attempt to save the patient's home. (5)In early 2007, PJP employed the patient and made a claim for reimbursement under the Job Cover Placement Program. The practitioner was the patient's "nominated treating doctor", business partner (in PJP) and employer (through PJP). Under the Program, PJP, a company owned by the practitioner and patient, gained a financial benefit from the patient's employment. In his patient notes, the practitioner referred to the patient's employment situation. (6)Commencing in late 2006 and continuing to 2008, the practitioner advanced significant miscellaneous sums to the patient, maintaining only a mental note of the sums advanced. Throughout this period, the practitioner treated the patient for chronic psychological problems related to financial and business pressures. (7)The practitioner incorporated TJR. From April 2007, TJR engaged the patient to run the company in return for a significant salary and a promise of a significant shareholding in the company. In relation to the business, the patient was required to report to the practitioner. He did so at thrice weekly luncheons, which were held at the practitioner's surgery. The practitioner characterised the occasions as the meeting of friends over lunch. Alternatively, they could be characterised as sessions in which an employee reported to an employer or in which business partners discussed the progress of their business. From April to December 2007, the practitioner's surgery was not only the venue for frequent luncheons, but also the venue for about 20 medical consultations (Exhibit B). (8)In May 2007, the practitioner advanced the patient $160,000 (a very large sum). In June 2007 he advanced moneys to the patient's children, in effect for the purpose of maintaining a roof over the head of the patient's family. The terms of the advances, particularly in relation to interest, were not documented, leaving open the possibility of future conflict. (9)In addition to employing the patient through PJP and TJR, in early 2007 through PJP the practitioner employed the patient's wife. From March 2006 to 2008, he employed the patient's daughter in his surgery. 52Between 2004 and 2006, it may have been possible for the practitioner to quarantine the therapeutic relationship and maintain his friendship and a minor business relationship with the patient. However, once it became apparent that the patient was vulnerable to anxiety and depression as a response to business and financial stress, the task of drawing appropriate boundaries between the therapeutic relationship and any significant financial/business relationship became impossible. 53Initially, the practitioner responded to the patient's business and financial stress as a friend: by advancing money and creating business opportunities. Later, the practitioner's responses were those of a business associate as well as a friend: he was partly motivated by a desire to recover moneys that had been advanced previously. 54Over the 18 month period from late 2006 to early 2008, the web of equal and unequal relationships between the practitioner and the patient became increasingly complex and anti-therapeutic. The interactions between practitioner and patient created grave risks that, as the practitioner continued to effect financial rescue of the patient, the patient would feel burdened by an ever-increasing moral obligation to the practitioner and the practitioner would, from time to time, overlook the fact that patient care must always be his primary concern. Unsatisfactory professional conduct 55Section 36 of the Medical Practice Act 1992 provides: "36(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 judgement 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. ..." 56The practitioner accepts that, in his financial and business dealings with the patient, he departed from the standard reasonably expected of a practitioner of an equivalent level of training or experience. However, he contends that his failures of judgement and care were not "significantly below" the standard reasonably expected. The practitioner submits that his conduct was the result of an "error of judgement" of the type referred to in Daskalopoulos v Health Care Complaints Commission [2002] NSWCA 200 at 259 (Hodgson JA, Meagher and Stein JJA agreeing). 57Despite the practitioner's otherwise excellent character and lack of mala fides, and the fact that there is no evidence that the patient suffered any harm, for the reasons expressed above the Tribunal is comfortably satisfied that the level of judgement and care exercised by the practitioner fell significantly below the standard reasonably to be expected. 58However, the Tribunal is of the view that the conduct is not of a sufficiently serious nature to constitute professional misconduct within the meaning of section 37 of the Act. In this regard, the Tribunal notes that the practitioner acted without mala fides and there was no evidence of harm to the patient. Further, within the profession there is a wide range of opinion as to the appropriate boundaries between the therapeutic relationship and financial/business relationships. On the issue of appropriate boundaries between the therapeutic relationship and friendship relationships, opinion is even more divergent. Outcome 59The Tribunal is satisfied that the practitioner is a caring and competent medical practitioner, that these proceedings have impressed upon him that need to identify and define boundaries and that there is little risk of future boundary transgression. As a consequence of his folly, the practitioner has suffered a large financial loss. The Tribunal is mindful that, when it exercises its functions, the protection of the health and safety of the public must be the paramount consideration: section 2A (3) of the Act. The Tribunal must have regard to considerations of general deterrence and maintenance of public confidence in the profession: Law Society of NSW v Foreman (1994) 34 NSWLR 408 at 471. 60Having regard to the financial loss suffered by the practitioner, a fine would be inappropriate. 61In the circumstances of this case, the Tribunal considers that the appropriate outcome is a reprimand and the imposition of conditions. Recommendation 62The Tribunal recommends that the Council give a high priority to the finalisation and publication of a policy or guidelines concerning financial and business dealings between practitioners and patients. Costs 63Costs are compensatory. When a complaint is established, it is usual to order costs in favour of the HCCC. 64In this case, three working days before the commencement of the hearing, the HCCC abandoned an allegation that the practitioner had inappropriately prescribed benzodiazepines for the patient. The Tribunal accepts that, having regard to the seriousness of the allegation, the practitioner's legal team would have devoted substantial preparation time to addressing that allegation. This circumstance should be reflected in the costs order. Orders 1. The complaint of unsatisfactory professional conduct is established. 2. The practitioner is reprimanded. 3. The following conditions are imposed on the practitioner's registration. (a) At his own expense, within 12 months the practitioner is to complete the Medical Ethics course conducted in distance mode by the Department of General Practice, Monash University, Victoria and to furnish the NSW Medical Council with written evidence of compliance with this condition. (b)(i) The practitioner is to submit to an audit of medical records at his premises. The audit will be conducted within six months by a nominee of the Medical Council, and will assess the practitioner's compliance with the Regulations and the RACGP's Standards for General Practices. (ii) The practitioner is to authorise the auditor/s to provide the Council with a report of his/her/their findings. (iii) If the audit discloses significant deficiencies, the practitioner is to submit to further similar audit and to provide the auditor/s with a similar authority. 4. The practitioner is to pay 80% of the HCCC's 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. Decision last updated: 12 April 2011