Health Care Complaints Commission v Dr Small [2012] NSWMT 18

Medical Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Dr Small [2012] NSWMT 18 Hearing dates: 18/07/2012-19/07/2012 Decision date: 19 July 2012 Before: Elkaim SC DCJ Dr M Cox Dr P Gordon Ms G Ettinger Decision: See paragraph 34 Catchwords: Inappropriate doctor patient relationship. Conditions to be imposed on practice. Legislation Cited: Health Practitioner Regulation National Law (NSW) Cases Cited: Briginshaw v Briginshaw (1938) 60 CLR 336 Health Care Complaints Commission v Howe [2010] NSWMT 12 Category: Principal judgment Parties: Health Care Complaints Commission (Complainant) Dr Andrew Robert Small (Respondent) Representation: E Brus (Complainant) M Lynch (Respondent) Health Care Complaints Commission (Complainant) Holman Webb (Respondent) File Number(s): 40027/11 Publication restriction: Yes

Judgment 1The Tribunal has heard two complaints brought by the Health Care Complaints Commission ("HCCC") against Dr Andrew Small. The original Notice of Complaint is dated 24 August 2011. At the commencement of the hearing an Amended Notice of Complaint was filed without objection. 2Complaint 1 alleges "unsatisfactory professional conduct" within the meaning of Section 139B of the Health Practitioner Regulation National Law (NSW). The particulars of the complaint concern the relationship between Dr Small and a former patient of his. Complaint 2 is based on the same particulars but alleges "professional misconduct" within the meaning of Section 139E of the National Law. 3The source of the complaints is a letter from the former patient ("Patient A") dated 30 November 2009 (Exhibit A, Tab 3). Two points should be made immediately about this letter: (a)The allegation of sexual abuse was not pressed. (b)The complaint about the patient's notes was not pressed. 4The allegations against Dr Small can be placed into two categories: (a)An inappropriate sexual relationship with Patient A. (b)The conduct set out in the particulars of Complaint 1 under paragraph 2. These are essentially events that flowed in consequence of the sexual relationship. They include such matters as Dr Small providing Patient A with a vacuum cleaner and a microwave, cash and free medication. 5In an opening address counsel for Dr Small indicated that his client admitted Complaint 1 other than in respect of particulars 2(a), (g) and (h). 6Particular 2(g) was not pressed. 7In relation to Complaint 2, the complaint was admitted. 8The consequence of the admissions was that the only factual allegations that remained to be proved were those in particulars 2(a) and (h). 9In approaching these allegations the Tribunal was mindful that although the standard of proof is on the balance of probabilities that it should nevertheless apply the principles enunciated in Briginshaw v Briginshaw (1938) 60 CLR 336. 10It is convenient to deal with particulars 2(a) and (h) immediately. The Tribunal accepts in respect of 2(a) that Dr Small's mobile number had already been provided to Patient A and in any event was on the telephone answering service at Dr Small's practice. The provision of the mobile number again after the relationship started can therefore not be found to establish the allegation of a failure to maintain proper professional boundaries. 11In relation to 2(h) the Tribunal is not satisfied that the allegation has been proved. The only evidence relating to the regular provision of lunch and the driving home of Patient A came from Dr Small. He did not accept the allegation. There was no evidence to the contrary. Accordingly the allegation has not been proven.