Medical Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Schultz [2012] NSWMT 7 Hearing dates: 16 April 2012 Decision date: 26 April 2012 Before: Staff J; Dr M Giuffrida; Dr M Cox; Dr J Mair Decision: 1.Neil Schultz's registration is disqualified for 18 months. 2.That pursuant to s 149C(1) of the Health Practitioner Regulation National Law (NSW) an application for a review of this Order may not be made until 18 months from the date upon which it comes into effect. 3.The practitioner is to pay the costs of the Health Care Complaints Commission in these proceedings. Catchwords: Medical practitioner - psychiatrist - professional misconduct - sexual relationship with a patient - failure to maintain appropriate professional boundaries - prior boundary violation - practitioner admits conduct - practitioner's registration disqualified for 18 months Legislation Cited: Health Practitioner Regulation National Law (NSW) Cases Cited: Briginshaw v Briginshaw (1938) 60 CLR 336 Childs v Walton [1990] NSWCA 41 Ex parte Tziniolis; Re Medical Practitioners Act (1966) 67 SR (NSW) 448 Health Care Complaints Commission v Karalasingham [2007] NSWCA 267 Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 Health Care Complaints Commission v Mehta (Medical Tribunal of New South Wales, 29 November 2002, unreported), Lucire v Health Care Complaints Commission (No 2) [2011] NSWCA 182 Prakash v Health Care Complaints Commission [2006] NSWCA 153 Re Dr Parajuli [2010] NSWMT 3 Sabag v Health Care Complaints Commission [2001] NSWCA 411 Saville v Health Care Complaints Commission [2006] NSWCA 298 Zaidi v HCCC [1998] NSWSC 335; (1998) 44 NSWLR 82 Council of Law Society of New South Wales v Foreman (1994) 34 NSWLR 408 Stanoevski v The Council of the Law Society of New South Wales [2008] NSWCA 93 Category: Principal judgment Parties: Health Care Complaints Commission (Complainant) Dr Neil Schultz in person (Respondent) Representation: Counsel: Mr L A Fernandez of counsel (Complainant) Solicitors: Health Care Complaints Commission (Complainant) File Number(s): 40012 of 2011 Publication restriction: Pursuant to Sc 5D cl 7 of the Health Practitioner Regulation National Law the Tribunal has ordered that there be no publication of the name any patient or of any material capable of identifying any patient DECISION Suppression order 1The Tribunal has made a non-publication order in respect of material that identifies, or might lead to the identification, of any patient referred to in this decision. The complaint 2The Health Care Complaints Commission ("HCCC") alleges in a complaint dated 30 March 2011 that Dr Neil Schultz ("the respondent"), is guilty of "unsatisfactory professional conduct" within the meaning of s 139B(1)(a) of the Health Practitioner Regulation National Law (NSW) ("the National Law") and/or "professional misconduct" within the meaning of s 139E of the National Law in that the respondent has: "(i)Demonstrated that the knowledge, skill or judgment possessed, or care exercised, by him in the practice of medicine is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience; and/or (ii)Engaged in improper and unethical conduct relating to the practice or purported practice of medicine." 3The particulars of the complaint were in the following terms: At all relevant times the practitioner practised as a psychiatrist at 109 Lennox Street, Richmond, NSW 2753. By letter dated 17 March 2008 Dr Anthony Rombola, Patient A's general practitioner, referred Patient A then aged 25 to the Practitioner for assessment and ongoing care and management of overall psychological issues. On around 19 March 2008 the Practitioner commenced treating Patient A. At that time the Practitioner diagnosed Patient A as suffering from attention deficit hyperactivity disorder and borderline personality disorder. Patient A attended approximately 41 treatment sessions with the Practitioner between about 19 March 2008 and 12 January 2009. On 12 January 2009 the Practitioner ceased formal consultations with Patient A. 1.Between around March 2008 and November 2009 the Practitioner failed to provide adequate medical care and treatment to Patient A in that he: a.prescribed dexamphetamine in circumstances where he knew or ought to have known that Patient A had a history of abuse of drugs; b.failed to provide Patient A with adequate guidelines regarding his therapeutic relationship with her; c.from January 2009, failed to refer Patient A to an alternative psychiatrist; d.on each of 29 May and/or 5 November 2009 provided a prescription for Patient A for dexamphetamine when he had arranged to cease consultations in January 2009; e.on various occasions between 12 January 2009 and 23 October 2009 provided Patient A with prescriptions for Tramadol hydrochloride, topiramate, oxycodone hydrochloride, amoxicillin, amitriptyline hydrochloride, diazepam, metoclopramide hydrochloride, frusemide, and/or temazepam when he had arranged to cease consultations in January 2009; and 2.Between around March 2008 and June 2009, the Practitioner entered into an inappropriate personal relationship with Patient A and failed to maintain appropriate professional boundaries with Patient A in that: a.from around late October or early November 2008, on a number of occasions, providing patient A with food at his consulting rooms in circumstances where she was not attending for a therapeutic consultation; b.from around late October or early November 2008, on a number of occasions permitting Patient A to remain at his consulting rooms in circumstances where she was not attending for a therapeutic consultation; c.from around late October or early November 2008, on one or more occasions, giving Patient A money; d.buying a car for Patient A; e.from around December 2008 until around June 2009 permitting Patient A to perform secretarial and/or administrative tasks at his consulting rooms and paying her for these tasks; f.on two occasions permitting Patient A to stay at the Sebel Hotel with him; and/or g.on two occasions after June 2009, paying for accommodation for Patient A. h.in May or June 2009 in the company of Patient A, took an ecstasy tablet that had been given to him by Patient A. 3.The Practitioner failed to protect patient confidentiality by, from around December 2008, permitting Patient A to perform secretarial and/or administrative tasks at his consulting rooms thereby enabling Patient A to have access to his patients' files. 4.In May or June 2009 the Practitioner: a.had sexual intercourse with Patient A; and/or b.had a sexual relationship with Patient A over a four day period. 5.The Practitioner failed between around May and August 2009 to seek appropriate medical attention for his own psychiatric or psychological condition and / or self -prescribed medication in circumstances where: a.the Practitioner was or ought to have been aware that he was depressed and/or suffering from exhaustion from around June 2008; b.the Practitioner self-prescribed anti-depressant medication from around April 2009; and/or c.in around June 2009 Dr Helen Mitchell and/or Dr Paul Thiering advised the Practitioner to see a medical practitioner about his mental health and/or to get some therapy. 4Mr L Fernandez of counsel appeared for the HCCC. The respondent was self-represented. He did not call any evidence and was not cross-examined. Admission of all particulars 5The respondent in a written statement dated 10 April 2012 admitted the particulars of the complaint stating: "I am not contesting any of the issues being brought to the Tribunal. I have previously made a statement. I have previously made a statement regarding the events that occurred and will rely on that material for the Tribunal's consideration if relevant to these proceedings." 6In such circumstances, s 167(2) of the National Law provides: "(2)No inquiry need be conducted into a complaint referred to a Tribunal if the registered health practitioner or student who is the subject of the complaint admits the subject-matter of the complaint in writing to the Tribunal." 7It must therefore follow and the Tribunal so finds, that the respondent is guilty of professional misconduct. 8Part 8 - Health, performance and conduct, Division 3 Complaints, Subdivision 6 of the National Law deals with the disciplinary powers of this Tribunal in s 149, s 149A, s 149B, s 149C and s 149D. The powers include suspension; cancellation of registration; the issuing of a caution; reprimand; counselling, and the imposition of a fine. 9The respondent's registration lapsed from 30 September 2011 consequent upon his failure to renew his registration after the respondent had closed his practice in June 2011. Background of respondent 10The respondent completed his undergraduate medical programme at the University of Sydney in 1988. After his Internship at Newcastle Hospital, he commenced training in Psychiatry in 1990. He completed the requirements to the Fellowship of the Royal Australian & New Zealand College of Psychiatrists in 1995 and commenced in private practice. Between 1996 and 1997, he held visiting medical officer appointments at Westmead Hospital and the Prison Medical Service. 11In June 1997, the respondent commenced treatment of Patient B, then a trainee physician. The therapeutic relationship was terminated in October 1998, when a social, and then soon thereafter, a sexual relationship developed. Patient B was in an unhappy marital relationship. The respondent was also married. Patient B and the respondent married in 2000 following the dissolution of their respective marriages. 12He ceased private psychiatric practice in 2001 and commenced a commercial business providing client selection and introduction services. 13In November 2002, an Inquiry was conducted by a Professional Standards Committee ("the Committee") in respect of a complaint against the respondent. The complaint alleged that the respondent had commenced a personal and sexual relationship with a patient; that the respondent had lent money to the patient; that a personal relationship developed and that prior to the personal relationship developing, the respondent failed to appropriately terminate the therapeutic relationship, refer the patient to another psychiatrist, seek professional advice on commencing a relationship with a patient and allow an appropriate period of time to elapse before commencing a personal and sexual relationship with a patient following termination of the professional relationship. 14The Committee found that the complaint had been proven and that the respondent was guilty of unsatisfactory professional misconduct in that he engaged in conduct in relation to the practice of medicine that was improper and unethical and demonstrated a lack of judgment. The Committee reprimanded the respondent noting that the patient was not the complainant. The Committee placed a condition on the respondent's registration that he should participate in a peer review group in accordance with the Maintenance of Practice Standards ("MOPS") programme of the Royal Australian & New Zealand College of Psychiatrists and report such participation to the Medical Board of New South Wales ("the Board"). The Committee placed a further condition on the respondent's registration, those being that within two months prior to commencing practice as a psychiatrist he was to commence consulting a senior psychiatrist nominated by the Board in order to: "(i)seek the counsel of the psychiatrist by way of consultations about boundary setting in relation to the doctor/patient relationships and issues raised in the written reasons for the decision. (ii)The frequency and number of those consultations will be at the discretion of the Board-nominated psychiatrist and until such time as the Board-nominated psychiatrist deems necessary. (iii)Dr Schultz must authorise the Board-nominated psychiatrist to provide a written report to the Board on the outcome of those consultations and at such frequency as deemed appropriate by the Board-nominated psychiatrist. (iv)All fees associated with those consultations and reports will be paid by Dr Schultz." 15The respondent returned to private practice in 2003. Evidence and discussion 16Dr Paul Thiering and Dr Helen Mitchell, Consultant Psychiatrists, in accordance with their legislative obligations of mandatory reporting, by letter dated 3 September 2009 advised the Board that the respondent: "has admitted to both of us, separately, that he was involved in a physical relationship with a female patient. Whilst he admitted to a brief sexual affair lasting four days and has claimed this ceased after this time, he has maintained contact with her. We believe our colleague has been depressed and we have been concerned for his safety." 17According to statements made by Dr Thiering and Dr Mitchell, each warned the respondent on a number of occasions about the importance of personal boundaries with Patient A. 18The respondent noted in his clinical notes for Patient A that he diagnosed her with "borderline personality disorder" at his first consultation. She was then aged 25 years. Patient A had been referred to the respondent for treatment of her attention deficit hyperactivity disorder with dexamphetamine. The respondent knew Patient A's late father and attended psychotherapy peer review groups, which included Patient A's stepmother. The respondent's notes disclose that he saw Patient A on a regular basis from 19 March 2008 to 12 January 2009. 19In October 2008, Patient A listed the respondent as her "in case of emergency" contact when she was admitted to hospital following a collapse. In or around this time, Patient A began attending the respondent's office outside of normal therapy appointments. The respondent stated that he provided Patient A with lunch several times a week. On 13 November 2008, the respondent gave Patient A $100 for food. The respondent stated that as the relationship developed, he did not feel comfortable discussing potential boundary violations with the psychotherapy peer review group due to negative comments about Patient A being made by her father's widow who was a member of the group. 20In or about December 2008, Patient A began working for the respondent in his office for what he stated were "a few hours a week". However, he acknowledged that in total he provided $20,000 to her for the work. His evidence was: "Around December 2008 I found out that [Patient A] had been struggling financially to the point that she could not afford food. I started assisting [Patient A] by giving her a few hundred dollars when she needed it. I also bought her a car and paid for some accommodation for her. The total financial assistance would have been approximately $20,000. I assisted [Patient A] in this way because, having been friends with her father, and I didn't want to see her face any undue hardships after her father's death." 21In a statement to the Police involving an investigation into extortion, (not by Patient A), the respondent informed the Police that he had provided $20,000 to Patient A. 22The respondent's evidence was that the payment of $20,000 amounted to the money that she was paid for working for him. However, this evidence must be treated with significant caution as the respondent's evidence was he paid Patient A $18 per hour for four hours work, four days per week. The respondent's evidence was that Patient A worked for him from January 2009 to May 2009. The respondent also stated that he provided financial support to Patient A in the form of rental payments, hotel room payments and gifts. 23Counsel for the HCCC submitted that paying Patient A $18 per hour amounted to 1111 hours work during the period January 2009 to May 2009, which would have required an equivalent of 55 hours per week. Based on this calculation, the respondent's evidence of the payment for work done is unsustainable. 24Patient A had no appointments with the respondent after 12 January 2009, although she continued to work for him. However, the respondent provided Patient A with prescriptions without consultation between January 2009 and October 2009. The respondent wrote approximately 37 prescriptions for antipsychotic medications and for narcotic analgesics after he ceased clinical consultations with Patient A. He stated this was not an unusual practice for him when dealing with friends or co-workers. 25On 26 May 2009, when the respondent prescribed dexamphetamine to Patient A, he sought permission from the Pharmaceutical Services Branch to prescribe this drug for a period of three years. 26According to the respondent's evidence, on 5 June 2009 he attended his office at approximately 10.00pm. At about this time, Patient A came to his office and, finding him depressed, offered him an ecstasy tablet which he took. The respondent and Patient A then had sexual intercourse. 27The respondent's statement to Dr Thiering and Dr Mitchell was that he attended Patient A's home on a number of occasions to obtain emotional support from her. 28In separate written statements, Dr Thiering and Dr Mitchell both gave evidence that the respondent had discussed a four day sexual affair, which occurred in June 2009. 29Although Dr Thiering and Dr Mitchell encouraged the respondent to refer himself to the Medical Council of New South Wales ("the Council") he declined to do so. He also refused therapy, counselling or any independent treatment and self-prescribed Fluoxetine. 30The HCCC sought an expert opinion from Dr Janine Stevenson, a Consultant Psychiatrist and Psychogeriatrician in respect of the respondent's conduct. In her report dated 4 November 2010, Dr Stevenson stated: "12.I consider that Dr Schultz's overall care and treatment of [Patient A] to be unprofessional. He allowed her to gradually alter her relationship with him by letting her spend time in the practice, by letting her work in the practice (which I find to be grossly unprofessional given the necessity for confidentiality of the other patients in the practice), by giving her food, money and gifts and by seeking out her advice and her support for his own problems. He is said to have tried to invite her to be part of his own family knowing that she had a borderline personality disorder (which he diagnosed on her first visit). People with borderline personality disorder have problems with boundaries, problems with relationships, with regulation of mood, with impulsivity and self harm (demonstrated by [Patient A] during her treatment by Dr Schultz) and need to be provided with firm guidelines regarding the doctor-patient relationship. He also included his secretary in this confusing and confused relationship which is unacceptable. This is significantly below acceptable standards and invites my strong criticism. 13.Dr Schultz has minimised his wrongdoing at every stage. He failed to accept advice of experienced colleagues and he failed to get help for himself when he obviously needed it. He managed the treatment of a person with borderline personality disorder very inappropriately: on the application for dexamphetamine prescription he said she had no problems with drug abuse which was untrue (recorded in his own notes), he continued to prescribe not only dexamphetamine but other mood stabilisers and narcotic analgesics right up until the end of 2009 (records provided), he did not provide psychiatric care appropriate to somebody with a personality disorder, he did not refer to another psychiatrist when he knew he should have (even if the patient was refusing, this could have been a manipulative attempt to stay with Dr Schultz rather than a refusal to see anyone else. [Patient A] had seen other people in the past and if Dr Schultz had refused to continue to see her she is likely to have then sought out someone else. It was Dr Schultz's responsibility to provide her with alternative psychiatric care but not his responsibility to make sure that she did so). There are other agencies that would have been more appropriate to provide her with food and accommodation also." 31The respondent has clearly demonstrated by his conduct and admissions, a failure to keep proper boundaries with Patient A. It is trite to observe a medical practitioner must be particularly alert to the difficulties that may have to be confronted in treating the daughter of long time friends and colleagues. There was a clear failure to adhere to professional boundaries by providing Patient A with charity by offering her food, money, employment and subsequently engaging in a sexual relationship with her. Clearly, Patient A was vulnerable at the commencement of the therapeutic relationship and the respondent should have been alert to this situation and, in light of the family relationship, should have given serious consideration to referring her to another practitioner. 32As is often the case where a serious error of judgment occurs, it was compounded by the further failures. The respondent should have provided Patient A with adequate guidelines regarding his therapeutic relationship with her. He should have referred Patient A to an alternative psychiatrist at the very least from January 2009, when he ceased formal consultations with her. His reasons for not ending their professional relationship was that she "would have been extremely angry". This is a clear indication of the respondent's inability to deal with the situation that he had created with Patient A. 33In the Tribunal's view there are significant dangers for a practitioner in prescribing drugs in the future and without clinical consultation. The dangers include that the respondent was not able to monitor if Patient A was taking the medications, the effect of the medications on Patient A including the appropriateness of the dosages and any side effects, including the possibility of addiction in respect of narcotic analgesics (such as tramadol hydrachloride). 34The employment of Patient A, as was observed by Dr Stevenson, was highly unacceptable. Confidentiality of patients could easily have been breached. The Tribunal agrees with Dr Stevenson's observations that such conduct warrants strong criticism. 35The respondent has also admitted that he had a sexual relationship with Patient A over a four day period. In light of the admission it is unnecessary to determine whether sexual intercourse occurred in the surgery as was initially contended by the respondent, or at Patient A's house where he informed both Dr Thiering and Dr Mitchell in separate conversations that it had occurred. The respondent's evidence was a few days after sexual intercourse occurred, he asked Patient A what she wanted to do and her response was "well, you can't always have what it is that you want" and that she was going to leave it at that and did not want to talk about it. 36The inference is that the respondent was raising the possibility of a relationship between the two, otherwise it would seem to the Tribunal that there was no reason for what occurred to be further discussed. 37The Tribunal is comfortably satisfied that the respondent's conduct was deliberate. We have reached this conclusion on the basis that the more likely scenario is that the respondent went to Patient A's house as he told Dr Thiering and Dr Mitchell, took an ecstasy tablet, had sexual intercourse with Patient A and went to see her shortly afterwards where the possibility of a relationship was raised. 38The respondent's conduct in having sexual intercourse with Patient A was contrary to the Royal Australian & New Zealand College of Psychiatrists Code of Ethics, the College's Ethical Guidelines and the Board's Code of Professional Conduct. Dr Stevenson's opinion was that the respondent was not in control of his life and was inviting a vulnerable patient to be an intimate part of that life. This was unacceptable behaviour. Dr Stevenson considered this significantly below acceptable standards and voiced her very strong criticism. 39Finally, the respondent's self-prescribed medication was fraught with risks to both himself and to his patients. Both Dr Thiering and Dr Mitchell advised the respondent, unsuccessfully, on several occasions of what to do having observed his depression and exhaustion, however, he failed to seek the appropriate recommended medical attention. 40The respondent stated that he was extremely remorseful "though grateful that the situation did not lead to a terrible outcome for my patient which I understand may have occurred as a consequence of the violations that were occurring". 41The respondent submitted that part of his reflection had involved exploring the strengths and weaknesses of his personality; his approach to people in general; to patients; and in particular Patient A. This had been in the context of his coming to terms with his own issues of suffering depression. 42Deterioration in his mood state in August 2011 had impacted upon his ability to make rapid decisive decisions and led to errors of judgment creating some of the financial problems that now confront the respondent. He stated that the condition did not present in an obvious manner at the outset but developed from something that might seem like "mild strain to more severe symptoms". 43The respondent developed a relationship with his psychiatrist Dr Mark Rowe, who saw him on 10 occasions in 2010, on 8 occasions in 2011 and on 28 March 2012. 44In a report dated 9 April 2012, Dr Rowe stated: "... At our most recent consultation it is (sic) was clearly evident that Dr Schultz, from a mood perspective, was experiencing symptoms consistent with a major depressive order including a pervasive sadness, difficulty with motivation and indeed at times during the interview he became quite tearful. I believe his symptoms have been exacerbated by the psychosocial stressors he has been exposed to which include financial difficulties (which has significantly reduced the extent of legal representation for the upcoming hearing), the stress of the hearing itself and the possible fallout, together with the loss of role as a Medical Practitioner. Dr Schultz was clearly presenting as more fragile with loss of confidence and robustness that was present in previous sessions. ... In summary, it is my opinion that Dr Schultz does indeed suffer with a recurrent depressive disorder which may have impacted upon his judgment and actions pertaining to the complaint being heard before the tribunal. He has, however, perhaps prompted by the complaint, taken it upon himself to seek out and establish a therapeutic relationship with myself to attempt to stabilise his mental health so as to prevent such an occurrence occurring in the future. He is experiencing shame and guilt over his actions and I believe is remorseful and I understand he has made some recommendations regarding the possibility of returning to the profession in the future to prevent the situation from arising again. I am confident that with ongoing treatment, regular supervision with an appropriate practitioner, being part of a group practice and avoiding intense psychotherapeutic work with patients that Dr Schultz could re-enter the workforce as a safe and effective medical practitioner. 45The respondent closed his practice in June 2011. He stated that he had considered how he would approach medical practice if he were to return at some time in the future. He does not believe that he would experience the same difficulties in the future. He said that this was because of his greater understanding as well as a greater level of support and awareness, of Dr Rowe who he proposes to see regardless of the outcome of this hearing. We encourage the respondent to maintain his commitment to continue to consult with Dr Rowe. He acknowledged that it was important to avoid circumstances where a similar chain of events might occur. He therefore does not propose a return to a practice that required a high level of psychotherapeutic management. He no longer believes that he is well suited to this specific type of work. 46The respondent stated a return to general psychiatric practice would greatly restrict the risk to exposure provided that he became "strict about not undertaking psychotherapeutic work and referring patients to a therapist for this type of work if it were required". He accepted that he would have to ensure that he work in a group practice, attended peer reviews and also attend education meetings. He also observed that he would have to ensure that his working hours were far more controlled. The respondent believed a return to medico-legal practice would perhaps be the best and safest option. This would remove any risk of boundary issues developing. He stated that "the nature of this type of practice would minimise any confusion of roles and expectations of the relationship between patient and practitioner as it was no longer based on a 'helping role' but was a more academic and consultative role, generally involving a single interview". 47During his oral submissions, the respondent submitted: "The Commission also referred to my own confidence and tried to relate it specifically to by consideration of boundary issues. However, while I agree there are confidence issues, they are far broader at this point in time and, in fact, have had an impact on all aspects of my life. That being said, I would say at the moment that I'm not even certain, if the tribunal were to allow me to work in a medico legal capacity, that I would be comfortable taking that up at the moment, not because of issues relating to boundaries but because it requires a degree of self-confidence that I lack at the present time." 48The Tribunal accepts that the respondent has expressed his deepest regret in respect of his conduct with Patient A. He has admitted and understands the seriousness of what took place. He talked of feeling "desperately ashamed" of what happened in June 2009. Principles 49This jurisdiction is exercised for the protection of both the public and the medical profession. It is protective rather than punitive. Deregistration is not an automatic outcome of a finding of professional misconduct, even where that conduct is sufficiently serious to justify deregistration: Health Care Complaints Commission v Karalasingham [2007] NSWCA 267 at [67]. It is clear that deregistration may be required in serious cases of professional misconduct in order to adequately achieve the objectives of minimising the risk of recurrence and of deterring other practitioners from engaging in such conduct and thereby maintaining public confidence in the profession: Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630; Re Dr Parajuli [2010] NSWMT 3 at [32]; Saville v Health Care Complaints Commission [2006] NSWCA 298 at [45]; Prakash v Health Care Complaints Commission [2006] NSWCA 153, per Santow JA at [64] and Basten JA at [101]; Childs v Walton [1990] NSWCA 41. 50The standard of proof is "comfortable satisfaction on the balance of probabilities": Briginshaw v Briginshaw (1938) 60 CLR 336 at 360. 51In Health Care Complaints Commission v Mehta (Medical Tribunal of New South Wales, 29 November 2002, unreported), a case involving a medical practitioner who had a sexual relationship with a patient, the Tribunal observed at 16: "Because of the practitioner's admission of particulars 1 to 4 and the obvious necessary concession that such established professional misconduct could result in de-registration the Tribunal takes the view that these proceedings are analogous to a reinstatement application. The onus borne by the practitioner, at least in an evidentiary sense, is to establish that he should not be de-registered because either: (a)The circumstances were such as not to justify such an order; or (b)Because he has reformed since the commission of his misconduct." 52This Tribunal proposes to approach the determination of this matter by adopting those principles. 53Section 149C of the National Law is relevant. It states: "149C Tribunals may suspend or cancel registration in certain cases [NSW] (1) A Tribunal may suspend a registered health practitioner's registration for a specified period or cancel the registered health practitioner's registration if the Tribunal is satisfied- ... (b) the practitioner is guilty of professional misconduct; or ... (4) If the person is no longer registered, the Tribunal may- (a) decide that if the person were still registered the Tribunal would have suspended or cancelled the person's registration; and (b) if the Tribunal would have cancelled the person's registration, decide that the person is disqualified from being registered in the health profession for a specified period or until specified conditions have been complied with; and (c) require the National Board with which the person was registered to record the fact that the Tribunal would have suspended or cancelled the person's registration in the National Register kept by the Board. ..." 54It is evident from s 149C of the National Law that the principles in relation to disqualification of registration are the same as the power to cancel registration in this matter. Determination 55It is necessary for the Tribunal to be satisfied that there are clear and substantial grounds to conclude that the respondent is a person of good character who has overcome the deficiencies which led to his professional misconduct: Zaidi v HCCC [1998] NSWSC 335; (1998) 44 NSWLR 82 at [98] - [99]. 56In respect of reformation, the Tribunal is guided by the statement of Walsh JA in Ex parte Tziniolis; Re Medical Practitioners Act (1966) 67 SR (NSW) 448: "... Reformations of character and of behaviour can doubtless occur but their occurrence is not the usual but the exceptional thing. One cannot assume that a change has occurred merely because some years have gone by and it is not proved that anything of a discreditable kind has occurred. If a man has exhibited serious deficiencies in his standards of conduct and his attitudes it must require clear proof to show that some years later he has established himself as a different man." 57Mahony J observed in Council of Law Society of New South Wales v Foreman (1994) 34 NSWLR 408 at 449B: "Character involves, inter alia, two things: the acceptance of high standards of conduct; and acting in accordance with those standards under pressure." 58The recognition of the conduct in failing to keep proper boundaries is strong evidence that the respondent did not learn from his earlier unsatisfactory professional conduct in having a relationship with a patient. Under pressure he abandoned the high standards of conduct required of a medical practitioner. This is despite a report from Dr Michael Diamond, Consultant Psychiatrist, dated 17 March 2004 (which addressed the respondent's misconduct at that time) that the respondent: "fully and clearly understands those issues pertaining to preservation of professional boundaries by psychiatrists with their patients". 59There was limited evidence that the respondent had addressed the character defects that led to his misconduct. The respondent's statements that he still considers himself a risk if he were allowed to continue to treat patients is a matter of serious concern for the Tribunal. The respondent believed a return to medico-legal practice was "the safest option". It would, he said, "completely remove any risk of any boundary issues developing". However, this would still bring him in contact with patients. The respondent's lack of confidence has led this Tribunal to conclude that it is comfortably satisfied that there has been no reformation of his character. 60One of the difficulties with the respondent's proposed conditions is that because the respondent did not give evidence in the proceedings, he has not explained his position, how the proposed conditions would work on a practical level and in what way the options proposed would ensure the protection of the community. In the absence of such evidence, the Tribunal is not in a position to properly assess the respondent's proposal: see the analysis in Lucire v Health Care Complaints Commission (No 2) [2011] NSWCA 182 at [28]: "There may be merit in these submissions, but this Court is not in a position to assess them. The practitioner did not give evidence before this Court, so as to provide the factual basis upon which the Court could act as she requested. The purpose of such evidence would not have been a public recantation of professional heresy, as was implied by some of the referees, but an explanation of her supposed change in relation to the treatment of psychosis which is described in the submissions as being "more conservative in her approach to issues which confront her". The Court is entitled to be told in what way she "has changed her practice", given that she is no longer practising and states that she has no intention of treating psychotic patients. In the absence of such evidence, some conditions are required to protect the public." 61The onus of proving that the appellant was not a fit person to remain on the Roll of registered medical practitioners or to immediately re-apply for registration was on the HCCC. The evidence adduced concerning the acts of professional misconduct in 2009 is enough to establish that the respondent was then unfit. A presumption of continuity then arises such that this Tribunal would be justified in concluding that the respondent was still unfit unless the respondent was able to produce evidence that gave reason for believing that the situation had changed. In the Tribunal's view the respondent has failed to produce such evidence. 62The Tribunal has earlier observed that this jurisdiction is exercised for the protection of both the public and the medical profession. Deregistration may be required in serious cases of professional misconduct in order to adequately achieve the objectives of minimising the risk of recurrence and of deterring other practitioners from engaging in such conduct and thereby maintaining public confidence in the profession: Health Care Complaints Commission v Litchfield. Whether the degree of seriousness is sufficient to warrant suspension or cancellation is a matter of degree and judgment: Sabag v Health Care Complaints Commission [2001] NSWCA 411 at [42]. 63What must be established before an order for removal can be made is set out in Stanoevski v The Council of the Law Society of New South Wales [2008] NSWCA 93 at [52] - [54]: [52]Ms Adamson submitted that the onus was on the Law Society to establish that a person whose name is on the roll is not a fit and proper person to remain on it: Re Evatt; Ex parte NSW Bar Association (1967) 67 SR (NSW) 236; New South Wales Bar Association v Maddocks (Court of Appeal, 23 August 1988, unreported) per Kirby P at 1; Prothonotary of the Supreme Court of NSW v P [2003] NSWCA 320 at [17] (1). That, she submits, is to be contrasted with an application for admission, in which the onus is on the applicant to establish fitness: Re B [1981] 2 NSWLR 372 at 403; Wentworth v NSW Bar Association (Court of Appeal, 14 February 1994, unreported) at 5. [53]Ms Adamson initially submitted that removal from the roll requires the Law Society to establish that the solicitor is "permanently unfit to practice". Various cases concerning removal of a legal practitioner from the roll make mention of "permanent unfitness", sometimes in the context of a presumption that arises from the making of an order for removal from the roll (eg New South Wales Bar Association v Maddocks per McHugh JA, penultimate paragraph), sometimes in the context of what must be established before an order for removal can be made (eg Ex parte Lenehan (1948) 77 CLR 403 at 422; Prothonotary of the Supreme Court of New South Wales v Ritchard (Court of Appeal, 31 July 1987, unreported) at 4 per Kirby P, 38 per McHugh JA; New South Wales Bar Association v Maddocks per Kirby P at 38; NSW Bar Association v Cummins at [25]-[28] per Spigelman CJ (with whom Mason P and Handley JA agreed); Prothonotary of the Supreme Court of NSW v P [17](2) per Young CJ in Eq (with whom Meagher JA and Tobias JA agreed). In the course of argument Ms Adamson accepted that a requirement to establish "permanent unfitness to practise" did not mean that it was necessary for the Law Society to prove that in no circumstances whatever would the solicitor be fit to practise. She accepted that the existence of the jurisdiction to readmit a person whose name has been removed from the roll shows that "permanent" could not have that shade of meaning. [54]Rather, in my view, it has the shade of meaning of being likely to be unfit to practice for the indefinite future. Some cases have recognised that shade of meaning explicitly: Maddocks at 38 per Kirby P; Ritchard at 4 per Kirby P, both of which passages are cited by Spigelman CJ in Cummins at [25] and [27]. If the Tribunal or Appeal Panel is of the view that a person is presently unfit to practice, but after a particular period of time will be once again fit to practice, then suspension for that period of time is the appropriate order. Suspension is achieved by orders under section 171C(1)(b) and (c). Removal from the roll is appropriate only when a legal practitioner is unfit to practice, and suspension for a particular period is not appropriate. 64Applying the principles earlier referred to, the Tribunal has reached the view that the misconduct described in the particulars and the practitioner's absence of reform justify the Tribunal's conclusion that the proper order is disqualification of the respondent's registration. Suspension for a period of time is not appropriate in the circumstances of this case in light of the Tribunal's finding that the respondent is unfit to practice as a psychiatrist for an indefinite period. By majority, the Tribunal has reached the conclusion, based on a consideration of all of the evidence, that the respondent should be precluded from applying for re-registration until a period of 18 months has elapsed from the date upon which the Orders of the Tribunal take effect. 65The Tribunal draws to the attention of the respondent that the Department of General Practice at Monash University in the State of Victoria, offers a Medical Ethics course which is conducted externally. The Tribunal encourages the respondent to consider enrolling in this course and to maintain any continuing medical education courses during the period of his disqualification. 66The HCCC sought that the respondent pays its costs. The respondent submitted that he is experiencing significant financial stress at the present time with no immediate end in sight. This is not only a result of a loss of income from the closure of his medical practice but also a series of trading and real estate losses. He submitted that at the present time he has no capacity to pay costs and the imposition of costs would very likely lead to bankruptcy. He therefore sought that the Tribunal exercise its discretion and not award costs in this matter. The Tribunal proposes to make the usual order that costs should follow the result of the proceedings. However, the Tribunal draws the above matters to the HCCC's attention and encourages it to accept payment of costs on the basis of instalments. Orders 67The formal Orders of the Tribunal, then, are: 1.Neil Schultz's registration is disqualified for 18 months. 2.That pursuant to s 149C(1) of the Health Practitioner Regulation National Law (NSW) an application for a review of this Order may not be made until 18 months from the date upon which it comes into effect. 3.The practitioner is to pay the costs of the Health Care Complaints Commission in these proceedings. ********** 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: 03 May 2012