Medical Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Dr Anne Amigo [2012] NSWMT 13 Hearing dates: 7, 8 May 2012 Decision date: 22 June 2012 Before: Kavanagh J; Dr G Yeo; Dr E Kok; Ms J Houen Decision: 1.Dr Amigo has been guilty of professional misconduct. 2.The doctor is reprimanded. 3.The doctor is to enter into the Practice (Public) Conditions in accordance with Level 2 Supervision under the NSW Medical Council Guidelines. The doctor is to enrol in the appropriate medical ethics course (see Attachment A). 4.The doctor is to comply with the Health-related (Private) Conditions, details of such Conditions are contained in Attachment A. 5.We order, the Medical Council under s 163(i), is the appropriate Review Body for review of these conditions as recited in Attachment A. If the practitioner resides outside New South Wales, s 125 to 127 of the Health Practitioner Regulation National Law (NSW) apply so that any review of these conditions can be conducted by the Medical Board of Australia. 6.Dr Amigo shall pay the costs of the HCCC. 7.The Court has issued a suppression order of the name of Patient A and the name of family members of both Patient A and Dr Amigo. The order covers all documentation including medical reports. Catchwords: UNSATISFACTORY PROFESSIONAL CONDUCT, PROFESSIONAL MISCONDUCT - intimate involvement with patient - breach of NSW Medical Council's policy re sexual relationships and policy addressing the clinical treatment of family members - medical expert evidence persuades - cautioned - conditions imposed - costs Legislation Cited: Health Care Complaints Act 1993 Health Practitioner Regulation National Law (NSW) No 86a Legal Profession Act 1987 (NSW) Cases Cited: Briginshaw v Briginshaw (1938) 60 CLR 362 Director General, Department of Community Services; re Sophie [2008] NSWCA 250 Lee v Health Care Complaints Commission [2012] NSWCA 80 Category: Principal judgment Parties: Health Care Complaints Commission (Complainant) Dr Amigo (Respondent) Representation: K Eastman (Complainant) P Strickland SC (Respondent) Health Care Complaints Commission (Complainant) HWL Ebsworth Lawyers (Respondent) File Number(s): MT40015 of 2011 Judgment 1The Health Care Complaints Commission ("the Complainant") brings before the Tribunal one Amended Complaint following consultation with the Medical Council of NSW ("the Council") in accordance with ss 39(2) and 90B(3) of the Health Care Complaints Act 1993 and s 145A of the Health Practitioner Regulation National Law (NSW) No 86a ("the National Law") against Dr Amigo ("the respondent") being a medical practitioner registered under the Act. 2The Amended Notice of Complaint alleges, in the following terms, that the respondent: COMPLAINT ONE has been guilty of unsatisfactory professional conduct within the meaning of section 139B of the National Law and/or professional misconduct within the meaning of section 139E of the National Law in that she has: (i) demonstrated that the knowledge, skill or judgment possessed, or care exercised, by her 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) contravened a provision of the Medical Practice Regulation 2003; and/or (iii) contravened a provision of the Medical Practice Regulation 2008; and/or (iv) engaged in improper or unethical conduct relating to the practice or purported practice of medicine. PARTICULARS OF COMPLAINT ONE In July 2006 the Practitioner met Patient A when Patient A's wife consulted the Practitioner shortly before her death from esophageal cancer. On or about 31 July 2006 Patient A contacted the Practitioner for professional assistance in dealing with the death of his wife. A therapeutic relationship commenced between the Practitioner and Patient A on or about 31 July 2006 and continued until on or about 4 November 2008. The therapeutic relationship included: (a)Consultations on 14 August 2006 and 25 September 2006 with Patient A billed to Medicare; (b)a repeat prescription (x5) written for Patient A for Mirtazapine on 5 October 2006, Atorvastatin Calcium on 7 June 2007, Rabeprazole Sodium on 21 September 2007 and Valaciclovir Hydrochloride on 6 February 2008; and (c)referrals of Patient A to various specialists including Gabriella Bentley (Psychologist) on 3 December 2006, Dr Feller (Gastroenterologist) on or about 16 October 2006, Dr George Jacob (Psychiatrist) on 11 April 2007, Dr Margaret Kearns (Ophthalmologist) on or about 22 January 2008, Dr David Wong (Dermatologist) on or about 17 March 2008 and to Douglas Hanly Moir Pathologists on 28 November 2006, 27 February 2008 and 1 August 2008. Between 31 July 2006 and approximately October 2006 the Practitioner and Patient A went on several social outings. From approximately October 2006 the Practitioner and Patient A commenced an intimate relationship and on 9 June 2007 the Practitioner moved into Patient A's residence. In June 2008 the Practitioner and Patient A commenced cohabiting. On 24 October 2008 the Practitioner ceased residing in the communal house she shared with Patient A. On 27 November 2008 Patient A died by committing suicide by ingesting phenobarbitone. It is alleged that: 1.Between 28 July 2006 and approximately October 2006, the Practitioner failed to maintain proper professional boundaries with Patient A in that she: (a)went on social outings to concerts with Patient A, at Patient A's invitation; (b)allowed a personal relationship to develop with Patient A at a time she knew or ought to have known that Patient A was suffering grief, (c)for his deceased wife; (d)took no steps to maintain proper professional boundaries 2.Between approximately October 2006 and 24 October 2008, the Practitioner engaged in a personal and/or sexual relationship with Patient A which was inappropriate and contrary to the Board Sexual Misconduct Policy and recognized professional standards; and/or 3.During the personal and/or sexual relationship the Practitioner failed to take appropriate steps to refer care of Patient A to another general practitioner which was contrary to the Board policy on Medical Practitioners Treating Relatives and Self and recognized professional standards; and/or 4.The Practitioner failed to exercise responsible medical judgment by: (a)Failing to disclose her personal relationship with Patient A when referring Patient A to Dr George Jacobs, Psychiatrist, on11 April 2007 and to Gabriella Bentley, Psychologist, on 3 December 2006 or at any time thereafter; and/or (b)Failing to disclose to Patient A's psychologist that Patient A had expressed suicidal ideation when referring Patient A to Gabriella Bentley on 3 December 2006 or at any time thereafter; and/or (c)Failing to disclose to Patient A's psychiatrist and psychologist at the time of referral or any time thereafter that Patient A had means to commit suicide having travelled to Mexico in March 2007 where he had purchased phenobarbitone; and/or (d)After approximately August 2008 failed to advise Patient A's psychologist that Patient A was experiencing deterioration in his mental and emotional state; and/or (e)Failing to refer Patient A to another general practitioner for medical care and treatment when she observed in approximately August 2008 that Patient A was experiencing deterioration in his mental and emotional state. 5.Between 28 July 2006 and 4 November 2008 the Practitioner failed to make and keep records in relation to her consultations with and/or treatment of Patient A in accordance with the requirements of clause 5 and Schedule 2 of the Medical Practice Regulation 2003 and/or clause 5 and Schedule 1 of the Medical Regulation 2008. 3Dr Amigo admits she has engaged in unsatisfactory professional conduct and professional misconduct within the meaning of ss 139B and 139E of the National Law. 4The principal issue for the Tribunal is the appropriate protective orders. Dr Amigo asks to remain registered and says she will agree to a reprimand and conditions. Given the seriousness of the misconduct, the HCCC submits for the Tribunal's consideration there are a range of protective orders available, including de-registration. 5Dr Amigo admits to particulars 1, 2, 3, 4(a) and 5. She accepts that the totality of the conduct embraced within those particulars constitutes professional misconduct as defined by s 139E of the National Law. However, she does not admit particulars 4(b) to 4(e) inclusive. In determining whether those particulars have been proved, the Tribunal applies the "Briginshaw test" (Briginshaw v Briginshaw (1938) 60 CLR 362). Clear and cogent proof is, therefore, required in order to establish the contested particulars (Director General, Department of Community Services; re Sophie [2008] NSWCA 250 at [68]). Background 6Dr Amigo met Patient A at her surgery where she practised as a sole general practitioner . Patient A had brought his wife of 36 years to see Dr Amigo. She was terminally ill. Dr Amigo recalls the consultation was 15 June 2006. 7On 28 July 2006, Patient A attended Dr Amigo requesting further medication for his wife. Patient A then consulted Dr Amigo about the difficulties his family had in accepting her terminal illness. Dr Amigo says it was a prolonged consultation. The doctor's notes refer to counseling him to cope with his wife's circumstance. The notes record Patient A was very stressed and emotionally depressed and suffering from insomnia. 8Patient A's wife died on 31 July 2006. Dr Amigo was called to the home by Patient A because, he stated at the time, he was not sure if his wife had died. 9On 6 August 2006, Patient A attended upon his general practitioner who is also his friend. The doctor's notes refer to grief. The doctor prescribed for him Stilnox. 10Dr Amigo contends she first treated Patient A on Monday 14 August 2006 when he presented with a diarrheal illness and she ordered pathology. Earlier, she recollected, she simply had advised him to go to counseling. On presentation, Patient A gave the doctor a gift. Dr Amigo knew Patient A to be sad and lonely. She recognised he was particularly vulnerable and grieving at the loss of his wife. 11About 23 August 2006, Patient A invited Dr Amigo to a concert because he wanted "to repay" her for visiting him on the day of his wife's death. Dr Amigo agreed to attend the concert. Dr Amigo said at this time she herself was "in an unhappy personal situation". 12On 4 September 2006, Patient A attended upon his general practitioner for severe insomnia and depression through grief. The doctor prescribed Stilnox CR and cautioned about the medication's side effects. 13Dr Amigo responded to a call on 9 September 2006 and visited Patient A at home. On Monday 25 September 2006, Patient A attended Dr Amigo's surgery for a referral for a routine colonoscopy and also he sought advice as to a post viral cough. 14On 27 September 2006, after having clearly taken on a clinical treatment role with him, the doctor attended a second concert with Patient A. On 30 September 2006, Patient A visited her family for a long weekend at Pearl Beach at her invitation. The weekend marked the commencement of them having an intimate relationship. On 25 October 2006, they went to a third concert. 15Between late October and early/mid December 2006, Dr Amigo admits she was enjoying a sexual relationship with Patient A. However, Patient A continued to exhibit emotional problems. 16On 3 December 2006, Dr Amigo referred him to a Psychologist, Gabriella Bentley, because he was, she opined "very distressed at times". Dr Amigo did not disclose her relationship with Patient A in her referral. 17Ms Bentley, the Psychologist, provided a report dated 5 December 2006 in which she said Patient A was "clearly in great distress". She described him as being "torn between the desire for comfort and the need to withdraw". At that time, she opined Patient A would: ... benefit enormously from an outlet to debate and normalise his feelings. He needs an arena to question the possibility of finding a hitherto unexplored reason for living and a different way in which he can be himself. Ms Bentley diagnosed him as suffering from "Borderline Personality Disorder - dependent and obsessive sub-set". She said he was "unable to attach to any but a single relationship that constituted his life line". She expressed the view "his sense of self was completely bound up in that single relationship". 18Ms Bentley, perhaps with prescience, recorded "in the structure of his emotional world he either had what he wanted or he died, there was no third alternative". 19On 1 January 2007, after a family holiday, Dr Amigo ceased the personal relationship. However, she remained in contact with Patient A. He consulted Ms Bentley, the Psychologist, on 3 January 2007, 8 January 2007, 15 January 2007, 5 February 2007, 12 February 2007 and 19 February 2007 for support. 20On 20 February 2007, Ms Bentley sent a further report to Dr Amigo. She referred directly to his reference to an intense love affair after his wife's death. She noted his vulnerability at that time and wrote: I would appreciate your keeping me informed if you feel that his physical condition deteriorates and I will do the same for you in regard to his emotional state. Patient A consulted Ms Bentley again on 27 February 2007. 21In March 2007, Patient A travelled to the US and Mexico. He purchased phenobarbitone on the trip to Mexico. Dr Amigo received a call from him in Mexico in March 2007 in which he inquired about the effect of the drug. On the same trip he also called her (from the US) and he threatened to jump off a building. He, by then, had clearly demonstrated to her his suicide ideation. Further, she knew he was a member of "Exit International", although the evidence is unclear as to when Dr Amigo gained this knowledge. 22On 11 April 2007, Dr Amigo referred Patient A to Dr George Jacob, a Psychiatrist. She did not disclose her relationship with Patient A in the referral nor prior to the date of consultation. Dr Jacob noted Patient A's "depressive syndrome with marked suicidal ideation". Patient A told the Psychiatrist that at the time he met Dr Amigo (without identifying her) that he was "weak and vulnerable and wasn't handling [his] wife's death". Dr Jacob recorded that Patient A was "devastated" when his lover (Dr Amigo) had confessed their relationship to her husband and chose to stop their relationship. 23On 19 April 2007, Patient A went back to Ms Bentley, the Psychologist. He failed to attend upon his friend and general practitioner between 26 March 2007 and November 2008. 24Dr Amigo told the Tribunal of a confrontation on 24 April 2007 between herself, her husband and Patient A at her surgery. She immediately closed her surgery. 25Patient A continued under the care of Ms Bentley on 2 May 2007, 9 May 2007, 17 May 2007, 24 May 2007, 30 May 2007 and 6 June 2007. The notes verify he remained a vulnerable and confused man. 26In late May 2007, Dr Amigo resumed her personal and intimate relationship with Patient A and in June 2007, she moved into his home. Towards the end of 2007 he sold his home and he and the doctor jointly purchased a unit. In August 2008, she agreed to marry him. 27During the period June 2007 - July 2008, the doctor continued to write prescriptions for Patient A and ordered pathology tests. Not all of these were properly recorded in her clinical notes. 28Around August 2008, the doctor noted Patient A was "very agitated and distant". She observed he was sleeping poorly and drinking heavily. She suggested that he consult his General Practitioner whose notes record a consultation in November 2008. 29Dr Amigo left the unit on 24 October 2008. She, however, had daily contact with Patient A. She described him in this period as "very distressed" and he said he did not "go out of the house". 30Patient A died by his own hand on 25 November 2008. He was 66 years of age. In a note left around the time of his death he said: Please contact; 1)My partner - Dr Anne Amigo ... Dr Amigo found him deceased on 27 November 2008 at the unit they owned jointly. Particular 4(d) 31Dr Amigo gave evidence before the Tribunal. While she admits to professional misconduct, she challenged the allegation that she knew of Patient A's suicidal ideation on her referral to Ms Bentley and denies she should have told the Psychologist (Particular 4(b)) of that ideation (which at the time of referral she did not know); and failed to inform the Psychologist of his mental and physical deterioration (Particular 4(d)). Further, she challenges the allegation that she knew he had phenabarbitone and therefore a means to commit suicide after March 2007 (Particular 4(c)) and, in so knowing, had an obligation to inform the Psychologist and Psychiatrist. Whilst she contends she knew of that obligation, her knowledge came much later than the referral. It is also alleged the doctor had an obligation to refer him to another general practitioner (Particular 4(c)). 32The doctor's evidence as to her knowledge of his purchase of phenabarbitone was that he called her from Mexico and asked her about the medication. She was not told he was purchasing it. She further opined: By the time he was distressed in 2008 he no longer had any medication of that sort from me. I refused to prescribe him any of that sort of medication, knowing that it could be abused. 33The type of medication she had prescribed and to which she refers were anti-depressants which, she conceded, could have been used for an overdose but she ensured, on his decline in 2008, she did not prescribe any such medications for him. 34It is difficult to determine exactly when the doctor became aware of Patient A's suicidal tendencies. Later evidence reveals the patient was a registered member of "Exit International", an organization in support of people who think the individual should be the decisive decision maker in determining when one dies. However, once the doctor became concerned at his deteriorating condition in 2008, and she recognised his suicidal tendencies, she should have connected his inquiry about phenobarbital and followed this up with him and, as well, alerted his doctors. While there may have been no obligation on her personally to so report, as long as she maintained her clinical overview, it would have been commonsense to warn his doctors of her belief as to the substances and medication he held and that such medications were dangerous given his emotional state and taking into account his attitude to suicide. 35From the above history, the Tribunal is satisfied Dr Amigo did not disclose the nature of her relationship with Patient A to the Psychiatrist or Psychologist to whom she referred him. Dr Jacob said he was "taken aback'" when Patient A disclosed his relationship with Dr Amigo on 18 April 2007. 36The doctor was loath to admit, originally, what she now acknowledges, that such contact between a medical practitioner and a patient was completely inappropriate. The admissions were made at a late stage just before hearing. They reflect help given to her since she consulted Dr Michael Diamond, Psychiatrist, and perhaps lawyers. Dr Diamond has expressed the view she should be permitted to continue in medical practice but with conditions. 37Dr Amigo's history of her relationship, her needs and her defense and protection of Patient A reveal she initially had little insight into conduct and its nature being professional misconduct. This lack of insight must be seen in the context that she left a longstanding marriage to join Patient A. It was her belief that the trigger for leaving him was her children's determination to avoid contact with her until she left the relationship. She had put much of herself emotionally into the relationship. As Dr Diamond states: The lack of understanding and insight into the conduct when it occurred can also be understood in the context of how she was conducting her life at the time. Her lack of insight into the misconduct was demonstrated by her responses to the HCCC, in which she denied being in a therapeutic relationship with Patient A at the time they commenced their relationship. This lack of insight was repeated in her early discussions with Dr Diamond. She has been a regular patient of Dr Diamond since July 2007. When she initially saw Dr Diamond he diagnosed her illness as a Major Depressive Illness. Before the Tribunal, Dr Amigo admitted: 85.I now acknowledge that I should not have entered into any personal or sexual relationship with (Patient A). I acknowledge it was wrong for the following reasons: (a)(Patient A) was grieving for his wife when we first met. He was lonely, sad and vulnerable; (b)(Patient A) first came to see me when his wife was a patient and was terminally ill. There was a power imbalance between us. By allowing an intimate relationship to develop between us, I abused the power of power that I held as a doctor who was providing professional advice and treatment to (Patient A); (c)In my role as a doctor treating first (his) wife and then (Patient A) himself, it was critically important to maintain an appropriate boundary around my professional doctor/patient relationship with (him). I should never have agreed to meet (him) socially in the first place, nor should I have allowed myself to become close to him; (d)Once a close relationship developed between us, I should have refused to have any further part in his medical treatment. I should have insisted that he consult another general practitioner for his ongoing advice and treatment. (e)The element of trust is central to the doctor/patient relationship. I accept that I abused that trust by entering into the relationship with (him) and by continuing to provide medical advice and treatment to him. 38Dr Diamond endorses the doctor now has a significant insight and understanding into the inappropriateness of entering into a personal and professional relationship with Patient A; the inappropriateness of providing piecemeal medical services to Patient A after they commenced their relationship; how she merged her perceived responsibilities as a doctor with her personal need for validation and gratification and her own profound neediness at the time of her misconduct; the inappropriateness of entering into an inappropriate personal relationship with her patients; and the pitfalls in remaining "objective" when attempting to treat family or loved ones. 39Dr Diamond was somewhat guarded as to whether there is any risk of Dr Amigo re-offending in the context that the doctor has diagnosed she has an "impairment". Dr Diamond, however, was of the view there appeared to be little risk of Dr Amigo "re-offending" within the same kind of relationship. 40The Tribunal is of the view the doctor, with professional assistance and support, has now accepted the need for a clear division between personal and professional relationships with patients. Nonetheless, she revealed she still was vulnerable and was indecisive as to the boundaries she must maintain in her professional practice of medicine. She still has two elderly patients who she sees both in her personal capacity and who were elderly friends of her parents and with whom she has had a long clinical relationship. This evidence raised a "boundary" issue and the doctor conceded she had to separate clinical arrangements from personal friendships. 41Further, the doctor comes before the Tribunal for her breach of both the NSW Medical Board sexual misconduct policy and a breach of the treatment of its relatives policy. The peer doctor, Dr Harry Nespolon, opined in November 2010: While there is no doubt that (Patient A) was a 'difficult' patient he is not that different from many other patients in similar situations. It should be noted that despite his protestations (Patient A) attended a number of medical and psychological/psychiatric consultations over the final years of his life. While there was a responsibility on Dr Amigo to follow up on the inadequate psychological/psychiatric treatment that he received the actions of a number of his health providers could also be called into question. However, the focus of this report is on the professional conduct of Dr Amigo. One of the main defences is that (Patient A) would not have taken up any of the alternative treatment options. The only option that he did not take up was seeing an alternative general practitioner, because of his relationship with Dr Amigo. It is not relevant as to whether (Patient A) would have taken up any of these options. While we will never know whether with alternative treatment (Patient A) would not have committed suicide Dr Amigo's professional conduct had a significant detrimental affect on (Patient A's) management. 5.Conclusion - Significantly below Standard Dr Amigo's was significantly below what is reasonably expected of a practitioner with the same training and experience as the practitioner complained about at the time of the events the subject of the complaints. 42Dr Amigo has significantly changed her present practice. She has joined a ten doctor practice. She sees fewer patients and does far fewer house calls. She conducts clinics three days a week and home and hospital visits over the other two days. She is more attentive to keeping proper patient records particularly during house calls. 43The doctor no longer provides her mobile telephone number to all patients. She is committed to having on-going treatment with Dr Diamond. We accept these are matters to take into account as minimizing risk. 44We endorse the expert view that Dr Amigo needs to continue to develop her level of insight into her own character and refine her understanding of the risk factors revealed through this experience. Protective orders 45The HCCC submits de-registration is an order which is open to the Tribunal in this matter. Reliance is placed upon the fact previous Medical Tribunals have considered that de-registration is an appropriate order in such matters where, notwithstanding the professional misconduct was admitted and notwithstanding the sexual relationship was consensual, the misconduct was held to be so serious as to attract de-registration. 46Here, the sexual relationship and the professional misconduct in her breach of the policy of her clinical treatment of a family member, occurred over a lengthy period of time. The misconduct was particularly serious. The relationship commenced and continued when Patient A was vulnerable and lonely. While there were periods where the relationship ceased, it then resumed. 47From the above circumstance, we accept there is no risk to the public from the doctor in her clinical practice of medicine. However, there is an ongoing need for the practitioner to ensure she sets clear boundaries in her dealings with patients. The Tribunal strongly advises Dr Amigo to relinquish the medical treatment of the two patients she still cares for and whom she acknowledges as being family friends. 48She now enjoys an excellent relationship with her two children and her former husband. She has resumed medical practice. She is not working long hours or being over-burdened by volume of patients. Apart from these proceedings, there is no other source to cause her anxiety. 49There is no dispute that, in relation to the established particulars, the complaint against the practitioner has been proved. There was admitted professional misconduct. The Tribunal can exercise any of the powers conferred on it by Sub-division 6 of Division 3 of Part 8 of the National Law. The purposes which are served by disciplinary orders include: The protection of the public; The maintenance of standards of the profession; Deterring not only the respondent but other medical practitioners who may be tempted to stray from appropriate standards; and A reminder to the profession of the unacceptability of the conduct involved. 50The HCCC submits that there are a range of protective orders open to the Tribunal including de-registration in light of s 149C of the National Law: 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- (a) the practitioner is not competent to practise the practitioner's profession; or (b) the practitioner is guilty of professional misconduct; or (c) the practitioner has been convicted of or made the subject of a criminal finding for an offence, either in or outside this jurisdiction, and the circumstances of the offence render the practitioner unfit in the public interest to practise the practitioner's profession; or (d) the practitioner is not a suitable person for registration in the practitioner's profession. . . . (5) If the Tribunal suspends or cancels a registered health practitioner's . . . and it is satisfied the person poses a substantial risk to the health of members of the public, it may by order (a prohibition order) do any one or more of the following- . . . (b) place specified conditions on the provision of health services or specified health services by the person for the period specified in the order or permanently. 51Section 149(1) does not have an overarching "fit and proper person" test like that applied in the repealed Legal Profession Act 1987 (NSW). Recently, in Lee v Health Care Complaints Commission [2012] NSWCA 80 (Macfarlan JA; Barrett JA and Tobias AJA), Barrett JA (with Macfarlan JA and Tobias AJA agreeing) made the following observation about the discretionary nature of a disciplinary order. He said at [19]: 19As Basten JA pointed out in Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [85] . . . Counsel on both sides therefore correctly accepted that review by this Court of the Tribunal's exercise of the disciplinary discretion must be in accordance with the approach described by Dixon, Evatt and McTiernan JJ in House v The King [1936] HCA 40; (1936) 55 CLR 499 at 504-505: "It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred." 20Essential to a proper assessment of a tribunal's discretionary judgment in a disciplinary jurisdiction in accordance with these criteria is a clear understanding of the nature of the jurisdiction and an appreciation of the purpose of orders made in exercise of it. These matters were explained by Basten JA in Director-General, Department of Ageing, Disability and Home Care v Lambert [2009] NSWCA 102; (2009) 74 NSWLR 523 at [83]. His Honour made several important points: 1. The specific purpose for which orders are made is protective in the public interest and is not punitive with respect to the individual. 2. That is not to deny that such orders may be punitive in effect and that punitive effects may be relevant in formulating a protective order. 3. The punitive effects may be directly relevant to the need for protection so that, in a particular case, there may be a factual finding that the harrowing experience of disciplinary proceedings, together with the real threat of loss of a livelihood, may have opened the eyes of the individual concerned to the seriousness of his or her conduct so as to diminish significantly the likelihood of its repetition and to produce a level of insight into his or her own character or misconduct which did not previously exist. 21 The task of the Tribunal (and of this Court on appeal) centres not on punishment as such but on the protection of the public and the maintenance of proper professional standards. 52Having found the doctor poses no threat to the public, we are nonetheless of the view conditions should be placed on the doctor's practice. The Tribunal accepts the doctor has made dramatic changes in the nature of her practice, which changes reveal she is developing an insight into the serious nature of her past breaches of both the high ethical and rigorous clinical standards required of a medical practitioner. 53We accept, as did the doctor, this developing insight has been guided by Dr Diamond's psychiatric treatment. Dr Diamond, within his treatment regime, has taken the doctor into a recognition of her personality and personal needs and the necessity to balance those in the context of developing the skills necessary to ensure she crosses no professional boundary in her future practice of medicine. 54We, therefore, recommend Dr Amigo continue this psychiatric support. 55To compliment that growing awareness, we recommend Dr Amigo enroll in an appropriate medical ethics course. 56Further, the doctor has practical and professional support within her present general practice. That support should be formalised by the doctor entering the Level 2 Supervision Programme of the NSW Medical Council. That will require her to identify a supervisor and separately a mentor. Orders 57The above findings are reflected in Orders per Attachment A to this decision. Accordingly, we find: 1.Dr Amigo has been guilty of professional misconduct. 2.The doctor is reprimanded. 3.The doctor is to enter into the Practice (Public) Conditions in accordance with Level 2 Supervision under the NSW Medical Council Guidelines. The doctor is to enrol in the appropriate medical ethics course (see Attachment A). 4.The doctor is to comply with the Health-related (Private) Conditions, details of such Conditions are contained in Attachment A. 5.We order, the Medical Council under s 163(i), is the appropriate Review Body for review of these conditions as recited in Attachment A. If the practitioner resides outside New South Wales, s 125 to 127 of the Health Practitioner Regulation National Law (NSW) apply so that any review of these conditions can be conducted by the Medical Board of Australia. 6.Dr Amigo shall pay the costs of the HCCC. 7.The Court has issued a suppression order of the name of Patient A and the name of family members of both Patient A and Dr Amigo. The order covers all documentation including medical reports. Attachment A CONDITIONS Review of conditions The Medical Council of NSW is the appropriate review body for the purposes of Division 8 of Part 8 of the Health Practitioner Regulation National Law (NSW). The conditions may be varied, amended or removed at the discretion of the Medical Council of NSW. However, should Dr Amigo seek to change or remove any of the conditions imposed as a result of this Tribunal's orders when her principal place of practice is anywhere in Australia other than in New South Wales, sections 125 to 127 inclusive of the Health Practitioner Regulation National Law (NSW) are to apply, so that a review of these conditions can be conducted by the Medical Board of Australia. Practice (Public) Conditions 1.The Practitioner is to work only in a position approved by the Medical Council of NSW ("the Council"). 2.The Practitioner is to obtain approval of the Council prior to changing her place of practice for a period of two years. 3.The Practitioner is not to undertake solo general practice work for two years or for such period as the Practitioner is required to undertake supervised medical practice in accordance with Condition 4 below. 4.The Practitioner is to be subject to supervision by a Council-approved registered practitioner for a minimum period of two years. a)Within 21 days of the date of this Decision the Practitioner is to nominate a supervisor for approval by the Council, to monitor and review her clinical practice and compliance with all Conditions in accordance with Level 2 supervision of the Council's Guidelines for Supervision (Policy PCH 7.5). The supervisor is to be provided with a copy of Policy PCH 7.5 and a copy of the Medical Tribunal Decision upon which these conditions are based. The cost of the supervision and any reports is to be borne by the Practitioner. The Practitioner is to take steps to ensure that: i)She and the supervisor meet on a fortnightly basis initially for two hours, the first meeting to occur within one month of being advised by the Council that her nominated supervisor has been approved. ii)At each meeting they address the issues of doctor/patient boundary responsibilities, doctor/patient communication, communication skills and workload. iii)At each meeting the supervisor completes a record of matters discussed at the meeting in a format prescribed or approved by the Council. iv)The supervisor forwards to the Council, initially on a quarterly basis and subsequently as determined by the Council, a Supervision Report in a format prescribed or approved by the Council. b)The Council may extend a period of supervised practice for 12 months if at the end of the period of supervised practice the Council determines that the Practitioner has not complied with this or other conditions of her registration and/or the period of supervision has not been sufficiently continuous or if upon consideration of the supervision reports received, the Council deems such extension necessary. c)In the event that the approved supervisor is no longer willing or able to provide the supervision required by this order, another practitioner is to be nominated by the Practitioner for approval by the Council within one month of the cessation of supervision by the Practitioner's previous supervisor. d)The supervisor is authorised to inform the Council immediately if there is any concern in relation to the practitioner's compliance with the supervision requirements, compliance with other conditions of registration, clinical performance, health or if the supervisor relationship ceases. 5.Within 21 days of the date of receipt of this Decision the Practitioner is to provide for approval by the Council the name and professional address of a registered medical practitioner who has agreed to act as her professional mentor. The nature and frequency of contact with the mentor is to be determined by the mentor in accordance with the Council's Guidelines for Mentors (Policy PCH 10). The mentor is to be provided with a copy of Policy PCH 10 and a copy of the Medical Tribunal Decision upon which these conditions are based and these Orders. a)She is to authorise the mentor to report, in an approved format, to the Council every six months about the fact of contact, and to inform the Council if there is any concern about her professional conduct, health or personal wellbeing. b)She is to authorise the mentor to notify the Council of any failure to attend, termination of the mentoring relationship against the advice of the mentor, or any other matter the mentor considers appropriate. c)She will meet with the mentor for an initial period of 18 months from the date of the first consultation and thereafter for such period as the Council may determine. d)The meetings should include discussion of the Practitioner's personal and professional development as a registered medical practitioner and personal issues as they arise and initially the issues highlighted in this Decision. e)In the event that the approved mentor is no longer willing or able to continue as mentor, she is to nominate another mentor for approval by the Council within 28 days of the cessation of the original mentor relationship.f)The Practitioner is to be responsible for any costs associated with the mentoring process. 6.To complete the course on Medical Ethics conducted in distance mode by the Department of General Practice, Monash University, Victoria, within 12 months of the date of the Medical Tribunal's Decision upon which these conditions are based and at her own expense. a)Within two weeks of completing the Ethics course, the Practitioner is to provide documentary evidence to the Council that she has satisfactorily completed the course. Health-related (Private) Conditions 1.To attend for treatment by a psychiatrist of her choice, at her own cost, at a frequency to be determined by the treating psychiatrist. The practitioner is to notify the Council of the name of her treating psychiatrist within 2 weeks and is to authorise the treating psychiatrist to inform the Council of failure to attend for treatment, termination of treatment or if there is a significant change in health status. 2.To attend on a needs basis upon a general practitioner of her choice and to advise the medical council of the name of that practitioner. 3.To attend for review by a Council-appointed psychiatrist, within six months, and subsequently as directed by the Council at the Council's expense. 4.To attend any Review Interview at the Council as directed by the Medical Council of NSW. 5.To authorise the Medical Council of NSW to forward copies of the Medical Tribunal Decision upon which these Conditions are based and any subsequent Council Review Interview or other reports and any other information relevant to her health and treatment, to the Council-nominated practitioners and her treating practitioners. She is to notify the Council immediately of any change in treating practitioner, so that copies of the Decision may be provided to them. Amendments 27 June 2012 - Revised paragraph. Amended paragraphs: 2 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: 27 June 2012