Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Dr Nikolova-Trask [2014] NSWCATOD 149 Hearing dates: 7 and 8 April 2014, 22-24 July 2014 and 22 August 2014. Decision date: 11 December 2014 Jurisdiction: Occupational Division Before: Boland AM ADCJ, Principal Member Dr V De Carvalho, Occasional Member- Professional Dr M Higgins, Occasional Member-Professional Dr C Berglund, Occasional Member Decision: 1.The registration of Dr Biljana Nikolova-Trask (the practitioner) on the register of medical practitioners maintained by the Australian Health Practitioner Regulation Agency (AHPRA) in conjunction with the Medical Board of Australia is suspended under s 149C(1)(b) of the Health Practitioner Regulation National Law (the National Law) for a period of three months. 2. The operation of Order 1 is stayed 21 days from the date of these orders. 3. On the expiration of the period of the practitioner's suspension her registration shall be subject of the following orders and conditions: (a) The practitioner shall for a period of three years from the expiration of her suspension not engage in practice as a sole practitioner. (b) Within 12 months of the expiration of her suspension, or such further time as may be agreed with the Medical Council of NSW (the Council) complete at her own expense the distance education course "Medical Ethics" conducted by the Department of General Practice, Monash University, Victoria provided however if such a course is not available in 2015/2016 such other course as nominated by the Council. (c) Within 2 months of the expiration of her suspension, or such further time as may be agreed in writing with the Council, provide evidence in writing to the Council of her enrolment in the course referred to in Order 3 (b) of these orders. (d) Within two weeks of completing the course referred to in Order 3(b) of these orders provide documentary evidence to the Council of satisfactory completion of such course. (e) Within 21 days of the expiration of her suspension the practitioner's shall: (i) provide for approval by the Council the name and professional address of a registered medical practitioner specialising in general practice, other than a practitioner practising in the same practice as the practitioner, who has agreed to act as her professional mentor. The nature and frequency of contact with the practitioner's mentor is to be determined by the mentor in accordance with the Council's Guideline for Mentors (the guidelines) but shall be not less than monthly; (ii) the practitioner shall provide to the mentor a copy of these reasons and a copy of the guidelines; (iii) meet with the approved mentor on a monthly basis, or on such more frequent basis as determined by the mentor within 14 days of the mentor being approved by the Council. If the practitioner remains practising in Broken Hill such contact may if necessary be by Skype or video-link; (iv) authorise the mentor to report to the Council if there is any concern about her professional conduct; (v) authorise the mentor to notify the Council of any failure to participate in any mentoring session, or to do any act or thing contrary to the advice of the mentor or any other matter the mentor considers appropriate; and (vi) continue to meet with the mentor for a period of not less than 18 months from the date of her first consultation with the mentor. 4. In the event that the approved mentor is no longer willing or able to continue as mentor the practitioner shall nominate another mentor for approval by the Council within 28 days of the termination of the original mentoring relationship. 5. Order 3 (e) (i) to (vi) shall apply in respect of any substitute mentor. 6. The practitioner shall be responsible for all costs associated with her mentoring pursuant to these orders. 7. The mentor is requested to include in discussions with the practitioner her personal and professional development as a registered medical practitioner and in particular any issues that may arise relevant to the matters identified in the Further Amended Complaint. 8. The Medical Board of Australia in conjunction with the Australian Health Practitioner Regulation Agency is requested to note the practitioner's suspension and the orders and conditions on the practitioner's registration to come into effect on the expiration of her suspension. 9. In the event that the practitioner seeks to review these orders and/or conditions under s 163A of the National Law and her principal place of residence is in NSW such application shall be heard by the Council as the appropriate review body. If the practitioner's principal place of residence is other than in NSW s 125 to s 127 of the National Law shall apply and the review body shall be the Medical Board of Australia. 10. The practitioner shall pay the costs of Health Care Complaints Commission of and incidental to the proceedings as agreed and failing agreement liberty to restore before the Tribunal. Catchwords: ADMINISTRATIVE LAW - Civil and Administrative Tribunal Act 2014. Where practitioner concedes she is guilty of unsatisfactory professional misconduct and professional misconduct in engaging in a sexual relationship whilst maintaining a therapeutic relationship with a patient. Whether practitioner also guilty of unsatisfactory professional conduct or professional misconduct in circumstances where she was also treating patient's wife and step-daughter while in close personal relationship with him. Effect of practitioner engaging in multiple text messaging and telephone communication with another patient with whom she had a close personal relationship. Consideration of the practitioner's use of social media - whether appropriate to provide medical advice and results via Facebook. Consideration of appropriate protective orders. Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Health Practitioner Regulation National Law Cases Cited: Briginshaw v Briginshaw (1938) 60 CLR 336 Clyne v NSW Bar Association (1980) 104 CLR 186 Dr Vipal Kumar Mehta and the Medical Practice Act of NSW NSWMT (29 November 2002) Gianoutsos v Glykis [2006]NSWCCA 137(2006) NSWLR 539 Health Care Complaints Commission v Cieslak (No 2) [2013] NSW NMT 23 Health Care Complaints Commission v Do [2013] NSWSC 3 Health Care Complaints Commission v Litchfield [1997] NSWSC 297 Health Care Complaints Commission v Philipiah [2013] NSWCA 34 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66(1992) 110 ALR 450 Ohn v Walton (1985) 36 NSWLR 77 Prothonotary of the Supreme Court of New South Wales v Da Rocha [2013] NSWCA 151 Category: Principal judgment Parties: Health Care Complaints Commission (Complainant) Dr Biljana Nikolova-Trask (Respondent) Representation: Health Care Complaints Commission (Complainant) File Number(s): 1420054 Publication restriction: On 7 April 2014 a non publication order was made in respect of the patients named in the Further Amended Complaint and the lay witnesses whose evidence was relied on in the proceedings. On 22 July 2014 the non-publication order was extended to include the name of a person referred to as Ms DP. On 24 July 2014 the names of the children of Patient D were added to the non-publication order. reasons for decision What the Tribunal decided 1On December 2014 the New South Wales Civil and Administrative Tribunal ("the Tribunal") found complaints of unsatisfactory professional conduct and professional misconduct brought by the Health Care Complaints Commission ("the HCCC") under the provisions of the Health Practitioner Regulation National Law (NSW) ("the National Law") against Dr Biljana Nikolova Trask ("the practitioner") proved. 2The Tribunal also made an order that the practitioner pay the HCCC's costs as agreed, and failing agreement, liberty to restore before the Tribunal for determination. 3On 7 April 2014 the Tribunal, under Schedule 5D clause 7 of the National Law and s 64 of the Civil and Administrative Tribunal Act 2013 (NSW) ("the NCAT Act"), and Rule 42 of the Civil and Administrative Tribunal Rules 2014 ordered that the names of the patients set out in the Schedule to the Complaint and the lay witnesses whose evidence was relied on in the proceedings are not to be disclosed to any person or entity or published in any form save and except to the parties to these proceedings. That order was extended on 22 July 2014 to include the name of a person referred to in evidence, Ms DP, and the names of the children of Patient D. 4These are the reasons for the Tribunal's decision. Introduction 5These proceedings raise issues of what are colloquially called "boundary issues" or "violations" between a doctor and a patient with a focus on the relationships between a doctor and three patients in an isolated rural city in New South Wales. They involve allegations of an inappropriate sexual relationship between the practitioner and a patient or patients, and the treating of a patient in circumstances of a very close personal friendship between the patient and the practitioner. The proceedings also raise the issue of what are appropriate communications between a patient and a practitioner using text messaging (SMS) or by use of social media (Facebook). 6The HCCC referred an inquiry into a complaint against the practitioner to the former Medical Tribunal of NSW in February 2013. It was transferred to the Tribunal on 1 January 2014. The complaint, which was subsequently twice amended, asserts, in broad terms, that the practitioner failed to maintain proper boundaries with a patient, Patient A, in that she engaged in a close personal relationship with him whilst treating him, his wife (Patient B) and step daughter (Patient C) and that she engaged in a sexual relationship with Patient A from June 2010. It is not in dispute that the practitioner maintained a Facebook page, and communicated with Patient B using this medium, as well as text messaging. Both the practitioner and Patient A concede they commenced a sexual relationship in June 2010, shortly after Patient A separated from his wife, Patient B. The practitioner and Patient A are now in a de facto relationship, and have a daughter, aged 2.5 years at the date of the hearing. 7The further amended complaint (the complaint) also asserts that the practitioner provided medical treatment to Patient D, and that she failed to maintain proper professional boundaries with him. This is asserted to have occurred in circumstances where she revealed details of her personal life to the patient, discussed being in a sexual relationship with him, and exchanged multiple text messages with him, including messaging late at night and in the early hours of the morning. 8It is asserted by the HCCC that the conduct of the practitioner, as particularised in the complaint, constitutes both unsatisfactory professional conduct, and professional misconduct being conduct as defined in the National Law. It is the primary position of the HCCC that the practitioner's registration should be cancelled for a period of six to twelve months, or suspended for a period of six months and on restoration, be subject to conditions. In the event that the Tribunal finds cancellation or suspension are not appropriate protective orders to be made, the HCCC propose the practitioner should be reprimanded, and conditions placed on her registration. 9The practitioner concedes her conduct in June 2010 in respect of Patient A constitutes professional misconduct. However, she does not accept her conduct prior to that date in respect in respect of Patient A, in circumstances where she was treating his wife and step-daughter, was inappropriate. She opposes the Tribunal making orders cancelling her registration, but concedes conditions could be placed on her registration, that she could be ordered to work under the direction of a mentor or supervisor, and that she would complete an ethics course. The transitional provisions 10As a consequence of the enactment of the Civil and Administrative Tribunal Act, Schedule 1, Division 2, cl 3 the Medical Tribunal was abolished effective on 31 December 2013. The Medical Tribunal's functions were taken over by the Tribunal. Pursuant to the transitional provisions in the Civil and Administrative Tribunal Act (see Schedule 1, Div 3 Sub-Div 2, cl 7 (2) and (3)) the matter is now in the Tribunal for finalisation. Clause 7 (3) (b) provides the provisions of any Act, statutory rule or other law that would have applied to or in respect of the proceedings had the Civil and Administrative Tribunal Act and the relevant amending Acts not been enacted, continue to apply. As a consequence the law to be applied is the National Law in force up to 31 December 2013. Issues in dispute 11As already noted, the practitioner concedes in her statement, dated 29 January 2014, that her conduct in respect of Patient A constitutes unsatisfactory professional conduct. She also concedes she is guilty of professional misconduct as alleged in complaint two of the complaint. However, she does not concede in the period from late January 2010 to April 2010 her relationship with Patient A was a close personal one such that it was inappropriate for her to maintain a doctor/patient relationship with him, whilst also treating Patient B and Patient C. It is therefore only necessary that the Tribunal refer briefly to the evidence in support of the complaint in respect of the practitioner's conduct in engaging in a sexual relationship in June 2010 with Patient A, whilst he was her patient, to satisfy ourselves the complaints are established. 12The practitioner also concedes one of the particulars alleged in respect of Patient D. She acknowledges she engaged in discussions with Patient D about the possibility of being in a sexual relationship with him in 2009. The practitioner disputes the balance of the complaint insofar as it relates to Patient D. 13Unfortunately, the practitioner's statement was prepared and served prior to the further amendment of the complaint, which did not occur until March 2014. As a consequence, her formal responses do not cover all of the particulars in the complaint. 14At the conclusion of the hearing the HCCC proposed, without objection from the practitioner's legal representatives, it would further amend the complaint to vary the number of telephone calls and text messages asserted to have occurred between the practitioner and Patients A and D. Although a direction was made that any further amendments to the complaint were to be notified to the Tribunal within the following 7 days no correspondence was received from the HCCC. 15Although the practitioner's concessions limit the extent of our inquiry, it is nevertheless necessary for us to consider some particulars not conceded by the practitioner. This is because our findings in respect of these particulars affect our assessment of the practitioner's insight, and impact on the type of protective orders that should be made. Doing the best we can in the circumstances noted in the preceding paragraphs, we discern the following matters remain in issue: (1)Did the practitioner's conduct in exchanging text messages, telephone conversations and Skype communication with Patient A between 23 January 2010 and 10 April 2010 constitute a failure to maintain appropriate boundaries; (2)Subsidiary to issue 1 identified above, did the practitioner's conduct in the following circumstances constitute a failure to observe proper professional boundaries: (a)where between June 2009 and March 2010 she not only treated Patient A, but also treated Patient B and Patient C; (b)where she had commenced a social relationship with Patient B in 2009, and socialised with Patient A and Patient B during a holiday in January 2010; (c)in discussing medical matters about Patients A, B and C both by telephone, text messaging and Facebook entries; (d)where in March 2010 Patient B asserts she arranged for Patient C to have a consultation with the practitioner during which the practitioner prepared a mental health plan for Patient C. (3)Did the practitioner fail to maintain appropriate professional boundaries with Patient D in circumstances where she: (a)maintained a close personal relationship with him during 2008 and 2009 and disclosed details of her personal life including matters relating to her divorce; (b)discussed the possibility of being in a sexual relationship with him in the second part of 2009; and (c)exchanged numerous text messages and engaged in numerous phone calls with him including exchanging text messages and emails late at night and during the early hours of the morning. (4)What are appropriate protective orders? Do the Tribunal's factual findings establish that the practitioner is not presently fit to practise medicine and not likely to be fit to do so for the foreseeable future. (5)If cancellation of the practitioner's registration is not appropriate should her registration be suspended for a period of time. (6)If neither cancellation nor suspension is appropriate, what conditions will properly protect the public, reflect the serious detrimental effect of her conduct on the practitioner's patients and the public, and deter other practitioners from like conduct. (7)Should the practitioner pay some or all of the HCCC's costs. Relevant to this issue is the adjournment of the proceedings in May 2014 after the HCCC had earlier indicated it no longer relied on the expert report of Dr Kenneth Mackey (Dr Mackey). Background 16The practitioner, who was born in 1970, obtained her medical qualifications in Macedonia in 1997. Between 1997 she worked in an emergency unit in Skopje, and thereafter engaged in general practice, initially in Skopke from 1998, until her migration to Australia in August 2001. 17Between 2001 and 2004 the practitioner lived in Canberra with her former husband. 18In 2003 the practitioner passed the first part of the Australian Medical Council examination and obtained limited registration to practise in an area of need under the supervision of Dr John Rolleston, (Dr Rolleston). In 2004 she moved, with her husband, to Broken Hill where she was employed by Dr Rolleston at the Broken Hill Medical Centre (BHMC). 19Between 2004 and 2011 the practitioner practised at the BHMC as a contractor. Since that date she has carried on general practice in a newly established practice in Broken Hill. 20On 31 March 2004 the practitioner's first child was born. 21In 2007 the practitioner, as a client, commenced attending a business operated by Patient B. She thereafter attended the business on a regular weekly basis during 2008 and 2009. She developed a friendship with Patient B and communicated with her by text messaging and Facebook. 22During the period 2 September 2006 to 10 August 2010 records maintained by the BHMC disclose that the practitioner saw and prescribed for Patient D. 23On 13 June 2008 Patient D consulted the practitioner. His clinical notes disclose "under a fair bit of stress personal issues he does not wish to talk about". Patient D consulted the practitioner twice in July 2008, and again twice in August 2008 and in November that year. 24Between 2008 and 2009 the practitioner maintained a close personal relationship with Patient D. They socialised in the community and exchanged many text messages often in the early hours of the morning. Patient D continued to see the practitioner on a professional basis in 2009 on four separate occasions between January 2009 and June 2009. The practitioner denies she stayed overnight in Patient D's, or that she engaged in a sexual relationship with him. 25In 2008 the practitioner and her husband separated. Between 2008 and 2009 they engaged in court proceedings in respect of property and parenting issues. They reached agreement about all issues in dispute in February 2009 at which time the practitioner's husband left Broken Hill. The child remained principally in the care of the practitioner. The child spends extended time with his father during school holiday periods. 26On 17 July 2009 the practitioner sent a Facebook message to Patient B. The message referred to the practitioner staying overnight at another house in a particular street. Patient B asserts she understood the relevant house to be Patient D's home. 27On 25 August 2009 the practitioner conducted a genital examination of Patient D when he presented with a right testicular lump. She asserts following this consultation she discussed with Patient D the possibility of being in a sexual relationship with him, and requested that he transfer to another practitioner. Patient D was seen again by the practitioner as a Patient in February 2010 following a motor bike accident. 28Between November 2008 and August/September 2010 Patient A was employed as a plant mechanic overseas. He worked on a rotating roster of two months overseas and one month in Australia. 29Patient B asserts that Patient A first met the practitioner when she arranged for a medical consultation for him in late September/October 2009. 30The practitioner asserts she acceded to a request by Patient B to see Patient A to complete a pre-employment check to enable Patient A to take up employment overseas. She conducted a consultation on 30 October 2009. 31In July and again in August 2009 the Patient B consulted the practitioner. The practitioner prescribed oral contraceptives for Patient B. The practitioner asserts, notwithstanding these consultations, she believed Patient B remained a patient of another general practitioner practising in Broken Hill. She asserts she did not seek a transfer of Patient B's file from this practitioner. 32On 28 August 2009 the practitioner had a consultation with Patient C who presented with a sore throat. 33In about November 2009 Patient D and his wife commenced living separately and apart under the one roof. They physically separated in October 2010 when Patient D's wife left their former matrimonial home. 34The practitioner saw Patient C on 7 December 2009. She was accompanied by Patient B and was prescribed a medication. 35The practitioner asserts that in late 2009 she saw Patient C and prescribed a Mental Health Plan for her. 36On 14 January 2010 the practitioner saw Patient C. A Medicare claim was processed by the practitioner on 28 March 2010. The practitioner is unable to explain why the Medicare claim was processed on this date. The practitioner asserts at [82] of her statement that she has not had any further consultations with Patient C (or Patient B) since January 2010. 37On 16 January 2010, whilst on holiday at the Gold Coast, the practitioner socialised on not less than two occasions with Patient A, Patient B, and another friend and the friend's children. 38Between 23 and 27 January 2010 the practitioner sent three text messages to a mobile phone registered in the name of Patient B. It is asserted the mobile phone was one used by Patient A. 39On 3 February 2010 the practitioner sent a Facebook message to Patient B stating: Am in a bit of a mess atm ...G had a motorbike accident on Sunday, completely mushed L knee, had to fly him to Adelaide ...Yesterday MRI was not very good, going into surge tonite, I am looking for flight down over the weekend ...completely exposed ourselves as I went to ED and requested orthot etc... well if anyone had a doubt about whom is Biljana Trask seeing now there is no doubt at all, will touch base later in the day, thanks again, still laughing. 40The practitioner asserts, in February 2010, Patient B telephoned her and requested a prescription of antibiotics for Patient A who was suffering a chest infection and was unable to obtain antibiotics easily overseas. The practitioner wrote a prescription for Keflex 500mg capsules. 41About 18 March 2010 the practitioner asserts she was contacted by Patient B who asked her to see Patient A on his return from overseas in early April 2010 on an urgent basis. The practitioner asserts she arranged for Patient A to have a chest X-ray and some investigations prior to seeing her. She asserts she saw Patient A on 8 April 2010 when she prescribed antibiotics. She also, at Patient A's request, prescribed medication for him to take overseas. 42On 26 March 2010 the practitioner issued a prescription for Patient C for a medication. The practitioner asserts she "thinks she [Patient C] must have lost the previous one I issued to her on 7 December 2009". Patient B asserts that about March 2010 she accompanied Patient C to a consultation with the practitioner. 43The practitioner had regular and frequent text and telephone contact with Patient A in early April 2010. She socialised with Patient A throughout April 2010 until his return overseas. Patient A accompanied the practitioner when she travelled to Canberra on 18 April 2010 to collect her child after he had spent time with his father. Thereafter she regularly kept in contact with Patient A via Skype, phone and email. 44On 1 April 2010 the Patient D consulted the practitioner for review following his motor bike accident. 45On 8 April 2010 Patient B asserts that Patient A travelled to the Gold Coast and told her their marriage was at an end. The practitioner engaged in lengthy telephone calls with Patient A on 7 and 8 April 2009. 46The practitioner and Patient A assert they commenced a sexual relationship in June 2010. They holidayed together in Bali for about 7 days in July 2010 before Patient A returned to work overseas. They commenced living together in September 2010 on his return to Australia. 47On 19 July 2010 the practitioner issued further prescriptions for Patient A prior to his return overseas. 48Patient D was seen by the practitioner in August and October 2010 at BHMC. 49Following Patient A's return to Australia, on 22 October 2010 the practitioner prescribed Duromine for him. She asserted he had put on considerable weight at this time. 50The practitioner asserts that, in 2010, the BHMC was going through great financial difficulties following disciplinary proceedings against Dr Rolleston. The BHMC was purchased by another practice in October 2010. 51On 17 December 2010 Patient A is reported by the practitioner to have suffered right flank pain. She arranged for him to have a renal ultrasound. The practitioner asserts she suggested that Patient A should "follow up the results with Peter" (another general practitioner at the BHMC). The practitioner in her statement notes "I accept I failed to insist that [Patient A] saw Peter". 52On 4 January 2011 the practitioner again prescribed Duromine for Patient A. 53On 21 February 2011 the practitioner had a consultation with Patient A and prescribed Panadeine Forte and Voltaren for his back injury. 54On 28 February 2011 the practitioner again prescribed Duromine for Patient A. 55In March 2011 the practitioner commenced practising in conjunction with another practitioner at the William Street Surgery. The practitioner asserts that approximately 7,000 patients attend the William Street Surgery. The practice currently comprises 3 full time general practitioners and 1 part-time general practitioner. 56In March 2011 the practitioner asserts that Patient A commenced consulting another practitioner at the William Street Surgery. Relevant law 57The complaint asserts the practitioner is guilty of unsatisfactory professional conduct under s 139B (1) (a) and (l) of the National Law. Those provisions are as follows: "Unsatisfactory professional conduct" of a registered health practitioner includes each of the following- ... (a) Conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of the practitioner's profession is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. ... (l) Any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession. 58Complaint 2 asserts the practitioner is guilty of professional misconduct under s 139E of the National Law. That section provides as follows: For the purposes of this Law, "professional misconduct" of a registered health practitioner means-- (a) unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; or (b) more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration. 59Section 3 of the National Law sets out the objectives and guiding principles of the law, as those objectives and principles apply to the national registration scheme. Section 3A of the National Law, in force at the date of the hearing, sets out the objective and guiding principle to be applied by a Tribunal in New South Wales conducting an inquiry into a complaint and, if appropriate to do so, when making protective orders. The relevant parts of s 3, for the purposes of this hearing, are as follows: (2) The objectives of the national registration and accreditation scheme are-- (a) to provide for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered; and ... (e) to facilitate access to services provided by health practitioners in accordance with the public interest; and ....... (3) The guiding principles of the national registration and accreditation scheme are as follows-- (a) the scheme is to operate in a transparent, accountable, efficient, effective and fair way; ... (c) restrictions on the practice of a health profession are to be imposed under the scheme only if it is necessary to ensure health services are provided safely and are of an appropriate quality. 60Section 3A, a NSW provision, provides as follows: In the exercise of functions under a NSW provision, the protection of the health and safety of the public must be the paramount consideration. 61It is relevant at this point in our reasons that we record that protective orders made at the end of a hearing are not intended to punish the practitioner, but to protect the public (see Clyne v NSW Bar Association (1980) 104 CLR 186). The onus or burden of proof 62The onus or burden of proof is that of the HCCC. It is well established, due to the protective nature of the jurisdiction, and the seriousness of the complaints, if established, both for the practitioner and the public, that the standard of proof is on the balance of probabilities, but to the level of satisfaction described by the High Court in Briginshaw v Briginshaw (1938) 60 CLR 336. 63In determining the level of satisfaction the NSW Court of Criminal Appeal has cautioned against the use of the term "comfortably satisfied" (see Gianoutsos v Glykis [2006] NSWCCA 137 (2006) NSWLR 539, 548-549 [51]). In considering whether or not the complaint is proved to the relevant level the discussion of the High Court in Neat Holdings Pty Ltd v Karajan Holdings Pty. Ltd [1992] HCA 66(1992) 110 ALR 450 at [2] is apposite: The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary 'where so serious a matter as fraud is to be found' [citations omitted] Codes of Conduct 64The HCCC included in the material tendered to the Tribunal the Medical Council of NSW policy documents including the Sexual Boundaries Guideline for doctors published by the Medical Board of Australia. We note this guideline took effect on 28 October 2011. That is, it post-dates the matters the subject of this complaint. 65Reliance was also placed by the HCCC on the Medical Board of Australia's publication "Code of Professional Conduct - Good Medical Practice" (the Code). The document notes the Code was first published in 2005 and revised in 2008. 66Standard 2 (2.3) of the Code deals with principles relating to maintaining trust with a patient. This paragraph of the Code which contains nine sub-paragraphs sets out at (d) the following: Observe professional boundaries with patients. This includes not engaging in personal relationships or sexual behaviour with patients. This principle is the subject of a specific policy in relation to Sexual Misconduct issued by the NSW Medical Board; ... 67The HCCC also sought to rely on the Medical Board of Australia "Good Medical Practice: A Code of Conduct for Doctors in Australia" (the 2009 Code). This document notes: This code was endorsed by all Australian State and Territory medical boards and the Australian Medical Council. It has been accepted by the Medical Board of Australia after minor revisions to ensure it is consistent with the Health Practitioner Regulation National Law Act 2009 (the National Law). It is issued under s 39 of the National Law. 68Mr Lynch, counsel for the practitioner, objected to any reliance on the 2009 Code on the basis it could not have been operative at the time of the subject of the particulars in the Complaint as the National Law only commenced operation on 1 July 2010. We accept the correctness of that submission. However, the principles set out in the 2009 Code simply repeat long established ethical principles applying to medical and other health professionals. It is for this reason we find it useful to set out 8.2 of the 2009 Code. It provides as follows: 8.2.1 Maintaining professional boundaries. 8.2.2 Never using your professional position to establish or pursue a sexual, exploitative or other inappropriate relationship with anybody under your care. This includes those close to the patient, such as their carer, or spouse or the parent of a child patient. The lay witnesses 69The Tribunal had before it statements signed by Patient A and Patient D relied by the HCCC in its case. Patient A and Patient D were not required for cross-examination. The Tribunal also had a signed statement by Mr RS who said the practitioner had stayed overnight in his house in the street referred to in the practitioner's text message of 16 July 2009. He also was not required for cross-examination. Patient B's mother 70Patient B's mother gave evidence to the Tribunal. Her evidence relied almost in its entirety on reports made to her by Patient B. We found we could give no probative weight to Patient B's mother's evidence. Patient B's evidence 71Patient B's statement set out her details of her social relationship with the practitioner, and referred to a number of Facebook and SMS messages between herself and the practitioner. She recorded that the practitioner told her about "her little love affairs", that she had a sexual relationship with Patient D, and that she referred to him on Facebook as "G". In her oral evidence Patient B recorded the practitioner telling her that she had gone to Patient D's workshop "and they had sex on the workshop bench". In answer to questions about the use of the initial "G" by Mr Lynch, Patient B asserted the use of "G" was "[the practitioner's] term" (transcript 7 April 2014 p 5) and that it could be a reference to possible eligible males. However, she disputed that the practitioner had used the initial "G" in their Facebook communications for anyone other than Patient D. 72Patient B related that she first consulted the practitioner in April 2009 and thereafter she regarded the practitioner as her general practitioner. 73Patient B in her oral evidence (transcript 7 April 2014 p 61) gave a clear account of telephoning the practitioner in March 2010 in distress about Patient C and the practitioner advising she would ring Patient C and "sort it out". Patient B reported that Patient C expressed anger to her after speaking to the practitioner. In her cross-examination Patient B confirmed that after she moved to Queensland she returned to Broken Hill regularly because of her business. She also confirmed that a Facebook entry which stated "No [Patient's C's] initials" referred to her daughter not accompanying her to Broken Hill on 18 March 2010. She further confirmed that she had taken Patient C to see the practitioner in December 2009 at which time Patient C had filled in a questionnaire (transcript 7 April 2014 p 75). She was not, however, challenged about her evidence that she had taken Patient C for a consultation with the practitioner in about March 2010. 74In cross-examination Patient B confirmed she had only commenced seeing the practitioner as her general practitioner in 2009, and that she had two consultations with her. She also confirmed that she had introduced Patient A to the practitioner, and that he had first consulted the practitioner in October 2009. 75Other than as noted above, Patient B did not depart in her oral evidence from her statement. She confirmed that the practitioner had told her she had sex with Patient D at her home, and that she parked her car near a local identity's house when she went to visit Patient D at his workplace. 76Patient B said that both the practitioner and Patient A had access to her Facebook page, but she blocked access to them from May 2010. She described seeing communications between the practitioner and Patient A "was quite upsetting". 77Patient B's Facebook messages were downloaded by an expert and adduced in evidence before us. Patient B described two types of Facebook messaging - private communications between herself and the practitioner, and messaging posted "on the wall" and available to all her "friends", including the practitioner, but not the general public. She explained that the Facebook communications adduced before us were all ones which were private communications between herself and the practitioner. However she said a communication in November 2009 about "G" as "having left his house" was one available to all the practitioner's friends. We discern by this statement the communication was "on the wall". 78Patient B interpreted a Facebook entry, sent to her by the practitioner on 18 July 2009, when the practitioner stated she had spent the night in the wrong house in her street, that she had no sleep, and thought she would make the same mistake again the following night, as inferring a reference to staying at Patient D's home. 79It is not in dispute that, by a Facebook communication dated 30 July 2009, the practitioner provided medical advice to Patient B and also used this medium to provide pathology results. 80Although Patient B is clearly upset by the practitioner's conduct in commencing a sexual relationship with Patient A, and her comments in her oral evidence exhibited marked disregard of the character of her former friend, we found her to be an honest and credible witness. She made a number of concessions in answering questions posed by Mr Lynch. But as we later discuss when making our findings on the particulars in the complaint, much of her evidence relied on assumptions or inferences from text or Facebook messages exchanged with the practitioner. Those inferences require cautious assessment and are ones made looking back at events with the now knowledge of both the practitioner and Patient A's conduct. The practitioner's evidence 81The practitioner relied on a written statement dated 29 January 2014. It is unnecessary we set out the background provided by the practitioner as the relevant information is captured by us earlier in these reasons under "background". 82The practitioner denied any relationship of significance with Patient A until April 2009. The practitioner said she socialised with Patient A throughout April 2009 "until his return overseas and kept in contact afterward via Skype, phone and email". She explains that in December 2010 when she treated Patient A for right flank pain she failed to insist that Patient A see another general practitioner practising at the BHMC. 83At paragraph 55 of her statement the practitioner explains: I am not convinced that prior to June 2010 I failed to maintain proper professional boundaries... 84The practitioner at [60] denied she had told Patient B about "little love affairs". 85In addressing Patient B's assertion that she attended a consultation with Patient C in about March 2010, at [62] she noted: The claims of paragraph 30 of [Patient B's] statement are untrue. I saw [Patient C] in late 2009 and referred her to a psychologist under a Mental Health Care Plan because she was caught stealing money from her mother's shop ........ The Mental Health Care Pan was completed at that time. I have never assessed [Patient C] over the phone. I have not seen [Patient B] or [Patient C] since before they moved to [an interstate location] in January 2010. 86The practitioner gave oral evidence in chief essentially confirming her written statement. She explained that "for some reason" the consultation with Patient C which occurred on 7 December 2009 when she asserted the Mental Health Plan was completed was not billed. She stated (transcript 23 July 2014 p 61): For some reason that was not billed on 7/12 so the easiest way was to reprint what [Patient C] has already filled in December, reprint, just change the plan, the initial, change the initial letter, initial entry and send it off. Probably not the best practice but the best we can do at that stage. 87The practitioner also gave evidence on 23 July 2014 (transcript page 63) that in continuing to treat Patient A she was "pretty slack"... "I should [sic] have done that, It was an omission on my behalf". 88The practitioner also agreed in cross-examination that she had provided medical advice to Patient B via Facebook, and accompanied her to a local pharmacy and had written a prescription of Maxolon. This, she said, occurred when her friend (Patient B) was "hung over". She likened her conduct to that described by Dr Mackey as prescribing for a family member. 89The practitioner denied any imbalance of power in her position as a doctor with Patient D. She stated: [Patient D] was quite a healthy man who did not require any extensive care. The care I provided to him was very superficial and very basic and he did not, and I did not feel that I'm in a position of power, where I can abuse my power, where he's vulnerable at all (transcript 23 July 2014 at p 93). 90The practitioner conceded in cross-examination that she had a close friendly personal relationship with Patient D since 2008 (transcript 24 July 2014 p 35). She also conceded that she engaged in text messaging with Patient D on two separate phone numbers. She said one phone number was a business phone number and the other a private number. 91Patient D's wife gave evidence that she discovered, when paying Patient D's mobile phone bill, that he stopped using his usual mobile phone in January 2009. She said she only discovered that Patient D has acquired a different mobile phone when she found a receipt for a pre-paid mobile phone. 92The practitioner sought to portray the care she provided to Patient A and Patient D as "superficial". She compared the type of care provided to these two men, with the care required by patients with chronic complex conditions. However, in response to questions posed by Dr De Carvalho, the practitioner conceded that monitoring Patient D's hypertension and high cholesterol for a man aged between 40 and 45 years was not "superficial" care. 93The practitioner explained, that not long after the time she conducted the genital examination of Patient D in August 2009, she had suggested he transfer to another general practitioner because of the likelihood of a sexual relationship with him. She could not, however, explain why there was no Medicare billing for the relevant consultation. She sought to demonstrate he had been transferred to another doctor by reference to a handwritten document which she identified as containing the writing of the practice manager and Dr Peter Hocking. This document recorded Patient D's address at his pre 2006 home. She agreed there was no billing for weekend attendances on Patient D when the practitioner administered Clexane injections after the patient's motor bike accident. We are satisfied notwithstanding the practitioner sought to suggest she was not acting as Patient D's general practitioner after his motor bike accident in February 2010 that assertion is not corroborated by the evidence, including letters from his specialist, Patient D's clinical notes and the practitioner's attendances at his home. Further, we do not accept the handwritten document tendered establishes that Patient D was transferred to Dr Hocking. Rather, we find that the contents of the document indicate it came into existence prior to the practitioner treating Patient D. 94The practitioner was extensively cross-examined about telephone calls to Patient A on 8 April 2010. That was the day Patient A told Patient B their marriage was at an end. Her evidence was unconvincing. 95The practitioner sought to explain a telephone calls to Patient A's mobile phone on 27 January 2010 as being made to seek information about the location of Patient A and Patient B's new home on the Gold Coast. However, when Ms C Stern SC (Ms Stern) counsel for the HCCC, drew her attention to the fact there was documentary evidence that she had left the Gold Coast and was in Moree on 26 January 2010, she still sought to maintain her communication was with Patient B. She subsequently conceded the phone record for 27 January 2010 was not for the purpose of making social arrangements during the period she was on the Gold Coast. 96The practitioner also conceded she had Skype and text communications with Patient A after he returned overseas in February 2010, but denied at this point in time that they were sexually attracted to each other. Her oral evidence was that their friendship "deepened just by the mere fact we were seeing each other more frequently" (transcript 27 July 2014 p 93). She also revealed for the first time in her oral evidence that Patient A had accompanied her to Canberra in April 2010. 97The practitioner was subject to extensive and rigorous cross-examination by Ms Stern. We accept the practitioner has suffered embarrassment and distress in being before the Tribunal. As we explain in detail later in these reasons, we found aspects of the practitioner's evidence lacked credibility and/or reflect a lack of insight into the effect of her conduct. The expert evidence The adjournment application 98The HCCC originally retained Dr Mackey as an expert to provide a report in this matter. Dr Mackey's report is dated 1 May 2012. However, shortly prior to the commencement of the hearing, the HCCC advised the practitioner's solicitors that it did not intend to rely on Dr Mackey's report. Some days later, the HCCC advised the practitioner's solicitors that it would include Dr Mackey's report in documents tendered to the Tribunal. 99An application was then brought by the practitioner before the presiding member in her capacity as List Manager on 4 April 2014, the last working day prior to the hearing, seeking to adjourn the hearing. That application was refused. At the interlocutory hearing the practitioner's counsel submitted that the practitioner would be prejudiced by the withdrawal of Dr Mackey's report. Ms Stern told the Tribunal that the HCCC would include the report in its documents, but she did not propose to call Dr Mackey to give evidence. 100The matter commenced on 7 April 2014, and after hearing a number of lay witnesses, Mr Lynch again, on 8 April 2014, sought that the proceedings be adjourned. The basis for the adjournment was because the practitioner, who had arranged for all documents before the Tribunal to be provided to Dr Mackey, wished to confer with him. It was not in dispute that Dr Mackey had not received all the material relied on by the second expert retained by the HCCC, Dr E Kertesz (Dr Kertesz) including material obtained after Dr Mackey had submitted his report. Mr Lynch also indicated that he may wish to adduce evidence in chief from Dr Mackey, and/or to cross-examine him. 101The adjournment was granted. Dr Mackey was called at the resumed hearing on 23 July 2014. No evidence in chief was sought to be adduced from him by Mr Lynch on behalf of the practitioner. He answered a few questions posed by members of the Tribunal. 102Dr Kertesz gave evidence and was cross-examined on 22 July 2014. Both experts provided opinions on the basis of the Health Care Complaints Commission Expert Guidelines. Dr Kenneth Mackey 103The letter of instructions to Dr Mackey requested him to comment on the practitioner's conduct in relation to Patient A and Patient D. The HCCC also requested Dr Mackey to comment on the practitioner's conduct with Patient B, on the assumption Patient B was "someone with whom she had a close friendship". The expert was also asked to comment on the content of the practitioner's communications with Patient B on Facebook. Finally, Dr Mackey was asked to comment on "any other aspect of [the practitioner's] conduct you consider noteworthy". It is, however, relevant to note that Dr Mackey was not asked to comment on the practitioner's conduct in respect of treatment of Patient C at any time including particularly in March 2010, as asserted by Patient B, whilst maintaining a close personal relationship with Patient A. 104Dr Mackey is a general practitioner of some 23 years' experience working in as a "solo doctor" in a small country town. He is the former President of the Rural Doctors Association and for 14 years has been the Chairman of the Board of the Riverina Division of General Practice and Primary Care. 105Dr Mackey opined that he had "no concerns" about the practitioner seeing Patient A for a work related medical condition on 30 October 2009 notwithstanding the practitioner was acquainted with him "through social interactions". In commenting on the medical consultations which occurred with Patient A on 22 February 2010, 6 April 2010 and 8 April 2010, Dr Mackey opined: The provision of a medical consultation to persons with a close personal relationship is not uncommon in medical practice. Many patients will attend a practitioner, especially in small rural towns, that they see on social occasions or in social circumstances. The degree of social interactions would have some bearing on the doctor/patient relationship especially if it appeared to be somewhat exploitative. However the evidence presented through these documents does not reveal a strong or exploitative or inappropriate relationship. There is the opportunity to maintain appropriate professional boundaries within these relationships. There is no evidence these boundaries had been crossed up until the consultation on 8 April 2010. 106Dr Mackey went on to note (on the material supplied to him) that a sexual relationship with Patient A had commenced in June 2010. In respect of practitioner's sexual relationship with Patient A at that date, Dr Mackey opined that the practitioner had failed to maintain professional boundaries. He commented "It is probable that her professional position was utilised to establish or encourage this relationship". Dr Mackey found the practitioner's conduct to be a significant departure from the standard (of a practitioner of a similar level of experience) and he is strongly critical of her conduct. 107In commenting on the practitioner continuing to engage in medical consultations with the Patient A during the period from 13 July 2010 to 26 February 2011, whilst living in a de facto relationship with him, Dr Mackey noted that the provision of prescriptions and ordering investigations "does not necessarily constitute medical consultations". But he goes on to say "The possible loss of objectivity in providing medical care to those that are close is recognised and it is strongly recommended that medical practitioners not provide ongoing clinical care when a close relationship exists". He also noted that the clinical notes require "medical skill to advise and interpret" and pointed out potential risks associated with conduct such as engaged in by the practitioner in this case. He concluded the practitioner's conduct did not depart from the standard although he opined "It is a practice that could and should be frowned upon". 108In dealing with Patient D, Dr Mackey noted the time-frame of consultations being between 2008 and 2010 at a time the practitioner had a close personal relationship with the patient. He opined, based on the practitioner's version of events, that her conduct was not unacceptable. However, he went on to note that if the evidence of Patient B was accepted as truthful, (i.e. that the practitioner had a sexual relationship with Patient D) then the practitioner's conduct would significantly below the standard reasonable expected of a practitioner of an equivalent level of training and experience and, as such, invited his strong criticism. 109In his report, Dr Mackey next discussed the practitioner's conduct in relation to Patient B. The focus of Dr Mackey's report in respect of the practitioner's conduct was not on issues of breach of trust between a doctor and patient, but rather on the propriety or otherwise of their Facebook communications. He expressed some concerns, because of privacy and security, at the practitioner's use of Facebook to convey blood test results and medical advice. 110Significantly, he opined at page 7 of his report: The RACGP Computer Security Guidelines (3rd edition) on internet and email usage suggest developing a practice policy that clearly states the management and use of the internet and emails by all staff within the practice to mitigate security risks. It suggests this policy should also detail the practice policy on access to social networking websites such as Facebook and Twitter. No further advice or direction was available to practitioners in 2010. Modern practitioners are adopting the new media but the risks need to be highlighted analysed and managed before any widespread acceptance. 111Based on the lack of guidance available, and it appears the practitioner's evidence, Dr Mackey did not find the practitioner's use of Facebook for her communications with Patient B, when she provided medical advice and pathology results, improper. 112As earlier noted, the only questions posed to Dr Mackey were those of the Tribunal's professional members. Dr Mackey maintained the position adopted in his report about practitioners, particularly rural practitioners prescribing for family members. He referred to the lack, in some circumstances, of the availability of an alternate practitioner, or a family member experiencing a lengthy delay before he or she could see an independent practitioner. He did concede that the prescription of a drug such as Duromine (as prescribed by the practitioner for Patient A) and the management of a patient with hypertension were not situations in which prescriptions should be written for a family member or friend without proper consultation. Dr Emery Kertesz 113Dr Kertesz provided a report dated 2 September 2013. Dr Kertesz was cross-examined by Mr Lynch on behalf of the practitioner. 114Dr Kertesz's curriculum vitae reveals he is a general practitioner with extensive clinical experience in both group and solo practice in rural areas. He is a fellow of the Royal Australian College of General Practitioners and an examiner for that College. 115Like Dr Mackey, Dr Kertesz's opinion expressed in his report about the practitioner's conduct in respect of Patient A up to April 2010, is that it falls within an appropriate standard of a practitioner of the equivalent level of experience of that of the practitioner. 116Dr Kertesz also comments on the practitioner treating Patient A, when she had a close personal relationship with him in April 2010. He opines, because of that close relationship "and because of the possible conflict of interest between [the practitioner] and Patient B in March and April 2010" that the practitioner's conduct was "below the standard ... but that conduct was not significantly below the standard". He expressed the opinion that the volume of messaging, both by Skype and SMS between the practitioner and Patient A between 23 January 2010 and 10 April 2010 was "significantly below the standard but does not invite strong criticism". However, Dr Kertesz is critical of the practitioner's behaviour on and from April 2010. He notes at page 5 at [2] "well before June 2010 [the practitioner] could have ceased contact with [Patient A] and referred him to another GP in the Practice or in the town". 117Dr Kertesz opines that the practitioner's use of Skype and telephone communication between herself and Patient A between April 2010 and June 2010 was "was significantly below the standard but does not invite strong criticism". 118In considering the practitioner's conduct in respect not only of Patient A, but also his then wife, Patient B and his step-daughter Patient C, Dr Kertesz opined at page 7 of his report: There appears to be little doubt, given the chronologies as presented, that [the practitioner] was, if not intimate with, then close to intimacy with [Patient A] when she was still continuing a close personal relationship with [Patient B]. The proximity of such personal contact and relationship standards impact seriously upon my opinion regarding her relationship with [Patient A]. Thus I am of the opinion that [the practitioner's] conduct with respect to the circumstances of her relationship with [Patient A] (and hence [Patient B] and [Patient C]) was below the standard expected of a Practitioner of an equivalent level of training or experience. This departure is significant but does not draw strong criticism. 119Dr Kertesz, after having set out the background facts relevant to the complaint insofar as it deals with Patient D, including Medicare records, and SMS contact, and the practitioner and Patient D's denial of a sexual relationship, expressed his opinion about the practitioner's conduct in respect of Patient D. He expressed his opinion in respect of two periods (2008-2009 and 27 September 2009 and 26 August 2011). In respect of the first two date periods Dr Kertesz opined that the practitioner's conduct was "significantly below that level but does not invite strong criticism". However, in respect the SMS messaging he opined "This conduct was significantly below that level and invites strong criticism". 120Dr Kertesz in his report expressed his "collective" conclusions about the practitioner's conduct in respect of Patient D noting: Given the above in my opinion of the collective facts 1-3, [the practitioner's] conduct falls significantly below that level and invites strong criticism. 121Dr Kertesz noted that, if it was established that the practitioner and Patient D engaged in a sexual relationship, or that she spent the night at his house in September 2009, those facts could affect his "opinion of her in every aspect of this matter". 122In answers to questions posed to him in cross examination Dr Kertesz appropriately acknowledged that he accepted both the practitioner and Patient D denied a sexual relationship, but explained his opinion would change if the Tribunal found such a relationship existed (transcript 22 July 2014 p 37). He went to comment about the SMS messaging explaining: A. I just felt that the contact, given the details that I was asked to assume, of them being in a very, very close and intimate personal relationship, I thought it was inappropriate for that amount of contact to be going on between two people who also had a professional relationship between them. Q. Why? A. I think it would have been very much neater and cleaner if she'd have said, "Okay, you've got problems, I'm your treating physician, take those personal problems to another doctor". 123Later in his cross-examination the following exchange occurred between Mr Lynch and Dr Kertesz: WITNESS: There are no recognised standards as far as telephone or SMS contact between doctor and patient or personal friends whatsoever as we all know. But I'll say again, I think it would have been much tidier and much neater from Dr Trask's point of view, if when she, having admitted to potentially becoming intimately involved with [Patient D], had have said to him at the time, "Look, you're my friend, I like you as a friend, I don't think we should have you as a patient. I think it would have been much tidier and neater from her point of view. That's why I made the comment that I did. LYNCH Q. Well if one accepts that it may well have been tidier and neater and indeed that's what she attempted to do at one stage, if you assume that, by referring him on to another practitioner, but nevertheless agreed to see him again in particular circumstances, the fact that it is not tidy or not neat doesn't equate, does it, in fairness to amounting to significant departure from accepted standards such as to attract strong criticism where strong criticism equates with serious enough to justify a suspension or deregistration? A. I agree with that. 124In re-examination Dr Kertesz confirmed that while he thought the volume of SMS communications between the practitioner and Patient D was "untidy and messy", he did not strongly criticise her conduct in respect of the messaging if the messages were on a personal basis (transcript 22 July 2014 page 54). Expert evidence - conclusions 125In broad summary, the experts both agreed that the practitioner's conduct in entering into a sexual relationship with Patient A in June 2010 was unacceptable and constituted professional misconduct. Each expressed concerns about the practitioner's electronic communications with Patient A being inappropriate, but found her conduct in that regard did not attract their strong criticism. They departed in their views about the practitioner's conduct in treating Patient A after April 2010 and after he and the practitioner commenced living in a de facto relationship. 126There is no dispute between the experts about the practitioner's conduct during the period January 2010 to June 2010 in respect of the treatment of Patient C (as asserted by Patient B). This is because Dr Mackey did not, for the reasons we have explained, address this issue in his report, and his opinion on the topic was not sought by either party when he gave oral evidence. 127The experts also depart in their views of the practitioner's conduct in respect of Patient D. We discerned from his evidence that Dr Mackey's view is that, if a practitioner engages in a sexual relationship, such conduct is unacceptable, but he differentiates this conduct from that of a practitioner having a very close personal relationship with a patient in the circumstances of a rural setting. 128Dr Kertesz in his oral evidence distinguished between a doctor, in a rural setting, having an open social relationship with a patient, and when such a relationship "crosses the line" such that a doctor should no longer continue to treat the patient (transcript 22 July 2014). He candidly acknowledged this is a difficult area, and depends on the particular factual circumstances. He gave as an example a practitioner being involved with a patient in a social relationship as member of a photographic club, and distinguished this situation from one where the practitioner has developed a close friendship with the patient from the club and is invited to his or her home after a club meeting to view photographs. 129We accept each matter must turn on its own facts and this is not a matter which can be subject of "absolute" guidelines. Nevertheless, we think the views expressed by Dr Kertesz are soundly based, sensible and if employed in areas of doubt, will be protective of both the patient and the practitioner. 130We found Dr Kertesz to be an impressive witness. He made appropriate concessions, and was careful to acknowledge that the basis for any asserted sexual relationship between the practitioner and Patient D was based on hearsay evidence and that it would be dangerous to speculate on the content of their text messages. 131We had no hesitation in accepting the opinions expressed by Dr Kertesz as appropriate and carefully based on the facts presented to him. In reaching this finding we note that Dr Kertesz's evidence about the SMS messaging did not change significantly after he was informed that the evidence indicated that the volume was substantially less than 126 messages referred to in his report. 132Dr Mackey and Dr Kertesz both considered the practitioner's conduct in entering into a sexual relationship with Patient A in June 2010 demonstrated a failure to maintain appropriate professional boundaries. We agree. However, as noted above, they differed to a degree in their opinions of the practitioner's conduct in continuing to treat Patient A as a patient until February 2011. 133We accept and prefer the evidence of Dr Kertesz that the ongoing doctor/patient relationship was improper. It is clear from Patient A's medical records that, during the relevant period, he suffered a back injury, and was provided with repeat prescriptions for weight reduction medication, Duromine. We are satisfied that the ongoing treatment of Patient A was inappropriate. It went beyond the type of circumstances alluded to by Dr Mackey namely pharmaceuticals available "over the counter" or where no other practitioner is reasonable available for weeks. 134We find the practitioner could either have transferred Patient A to another doctor in the BHMP, or alternatively, telephoned another practitioner in Broken Hill with a request to assume Patient A's care. The records produced from the BHMC note that there were no consultations by Patient A with Dr Hocking, the doctor to whom the practitioner asserted she had "transferred" Patient A. 135As noted above, Dr Mackey in his report did not comment on the effect of the practitioner's relationship with Patient A, and the impact of that relationship on her ongoing treatment of Patients B and C. We agree with and endorse the opinions expressed by Dr Kertesz at page 7 of his report which we have set out earlier in these reasons. Contested evidence relevant to the complaint about Patients A, B and C 136The relevant contentious evidence, other than that of lay witnesses, in support of the particulars asserted in respect of this complaint centre largely on telephone records, SMS messages and records relevant to whether or not the practitioner treated Patient C in March 2010. 137Two disputed matters arose in respect of the text messages. The first relates to the use and ownership of a mobile phone number. The second disputed area of evidence relates to the number of phone calls or text (SMS) messages sent to the mobile phone and received from this phone by the practitioner. 138The HCCC rely, in establishing the mobile phone number was the phone number used by Patient A, on an employment application completed by Patient A on 30 October 2009. In this application he records the relevant mobile phone number as his mobile phone number. Patient B's evidence is that her business paid for the mobile phone. Patient B had her own mobile phone. 139In a response provided by the practitioner's solicitors dated 6 June 2012 it was acknowledged on behalf of the practitioner that she communicated with Patient A by Skype, telephone and text messages between 23 January 2010 and 10 April 2010. 140We are satisfied to the relevant civil standard that the mobile phone records tendered in evidence relate so, far as Patient A is concerned, to calls between the mobile phone used by him and registered in the name of Patient B and one of the practitioner's phones. 141The second disputed factual matter relates to the number of telephone calls or SMS between the practitioner and Patient A. The issue of the frequency and duration of phone calls and text messages was also in issue in respect of calls between the practitioner and Patient D. 142Because of confusion about the meaning of schedules which recorded "originating calls" and "terminating calls" and in some cases "terminating" calls without a corresponding originating call, the HCCC arranged for Mr Gelfe, Security Liaison Officer, Law Enforcement Liaison Section of Telstra to give evidence on the fourth day of the hearing. He gave evidence over the telephone but had access on his computer to the relevant records. It is unnecessary we set out Mr Gelfe's oral evidence in any detail. In summary he confirmed that when there is no corresponding entry (a "terminating call") to an originating call it is likely that the receiving phone was out of coverage area, or was directed to another service provider. He also explained that where multiple succeeding entries of terminating calls are found in the records either a long text message could be split up into separate contiguous entries, or that the network may have been storing messages before sending, and that the messages were subsequently sent out in a block. 143Mr Gelfe was, however, unable to explain why certain listed "terminating calls" did not have any corresponding "originating call" and said "I'd say the more likely scenario is that there's - there was some sort of reporting error in the call records system that we were using at the time" (transcript 23 July 2014 at 35). 144The complaint in respect of Patient D refers to approximately 415 text mobile phone messages between the practitioner and Patient D between 27 September 2009 and 26 August 2011 and approximately 750 text mobile phone messages and 15 telephone calls with Patient D including late at night, in the early hours of the morning, and on occasion at a high frequency" (Complaint Two particular (d)). 145Dr Kertesz refers in his report in respect of Patient A to 65 occasions of contact between 23 January 2013 and 10 April 2013. In respect of Patient D, Dr Kertesz notes, based on the Telstra records, 126 days of contact by SMS between Patient D and the practitioner. In giving his oral evidence Dr Kertesz was advised by Ms Stern that, in light of Mr Gelfe's evidence, the number of SMS messages would not be as high as indicated in his report from the records. However, as we earlier noted, Dr Kertesz opined even with reduced number the SMS messages and calls they were "untidy and messy". We also note that, most appropriately, Dr Kertesz acknowledged it would be improper to speculate about the content of the SMS or telephone calls absent any evidence of their contents. We agree. However, we also agree with Dr Kertesz that the number of SMS was extraordinary, and their timing raises issues of potential impropriety. However, we cannot be satisfied to the Briginshaw standard that they were sexual or otherwise inappropriate in nature. Discussion and Findings Did the practitioner fail to maintain proper professional boundaries with Patient A in that she commenced a close personal relationship with him in January 2010, commenced or resumed a close relationship with Patient A in 2010 and exchanged text mobile messages, had telephone conversations with him whilst treating Patient A and also Patient B and C 146Although we find it is impossible to ascertain with precision the number of text messages, phone conversation and Skype communications between the practitioner and Patient A which occurred in this period we are satisfied from the practitioner's own concessions such communication occurred. 147As earlier noted, we are satisfied, based on Patient B's evidence, and Patient A's employment application, that mobile phone registered in the name of Patient B was used by Patient A and was the phone number used by the practitioner to contact Patient A. 148We also find that the practitioner's evidence about the telephone contact between herself and Patient A on 27 January 2010, immediately after the Gold Coast holiday was unreliable, and that the practitioner sought to downplay her ongoing communication with Patient A after the Gold Coast holiday. 149We find that the practitioner's evidence about her contact with and communications between herself and Patient A in April 2010 lacked credibility. The phone records disclose numerous text messages between the practitioner and Patient A on 3 and 4 April 2010 immediately before and on his return to Australia from overseas. The records disclose eight conversations between the practitioner and Patient A on the day he informed Patient B their marriage was at an end and five lengthy telephone conversations the following day. These conversations were followed in close proximity with practitioner and Patient A socialising in a Broken Hill hotel, and travelling together and staying overnight in Canberra albeit, according to the practitioner, in separate hotel rooms at the Hyatt Hotel. 150Even if the practitioner and Patient A's relationship at this point had not become a sexual one, it was an extremely close personal relationship, unknown to Patient B and Patient C. The practitioner should have, by no later than April 2010, told Patient A he should see another general practitioner, and have ceased to treat him. In reaching this finding we accept the submission made by Ms Stern that the practitioner's conduct in providing a range of medical care to Patient A on 28 April 2010 reflected poorly on her, and that her response prepared by her solicitors, and in her oral evidence, she sought to minimise the care she provided to Patient A. It was only when the practitioner was questioned by Dr De Carvalho she conceded the treatment she provided to Patient A (and Patient D) was not "superficial". 151We did not find the practitioner's evidence that she sought to transfer Patient A's care to Dr Hocking after June 2010 credible. It is entirely inconsistent with her ongoing treatment provided to him. 152The evidence about when the practitioner provided a Mental Health Plan for Patient C was subject of dispute. Patient B's evidence, which we have earlier recorded, confirms that she took her daughter to the practitioner in December 2009 when Patient C obtained a prescription for a medication. It is at that consultation the practitioner asserts she prepared a Mental Health Plan for Patient C but it was not charged to Medicare. Patient's B's evidence that Patient C completed a questionnaire for a Mental Health Plan in December. In her statement at [30] Patient B records: [Patient C] had some difficulty adjusting after our move to Queensland, and she spoke of suicide. I called Biljana one night in hysterics, as I didn't know what to do. Biljana rang [Patient C] and did an assessment over the phone. A few weeks later [Patient C] and I went back to Broken Hill and Biljana formally referred her to a psychologist through a 2710 mental health care plan. The approximate date of this consultation was around March 2010. I accompanied [Patient C] to the consultation. 153Patient B confirmed the circumstances of her telephone conversation in her oral evidence. It was not put to her in cross-examination that her evidence about attending the practitioner with Patient C on 26 March 2010 was a mistake. 154Patient C's records produced by the BHMC disclose consultations on 28 August 2009 and 7 December 2009 when she was prescribed a medication. On 14 January 2009 her reaction to the medication was reviewed, and on 26 March 2010 a further prescription for the medication was provided. This evidence does not support the practitioner's explanation that Patient C had lost the prescription provided on 7 December 2009 necessitating her to re-issue it on 26 March 2010. 155The text messages between the practitioner and Patient B support her statement that she returned to Broken Hill about the time of 26 March 2010. However, the Facebook exchanges dated 18 March 2010 between the practitioner and Patient B, and confirmed by Patient B in her cross-examination, demonstrate that Patient C was not to leave the Gold Coast at that time. We find on this evidence that it is unlikely Patient C attended a consultation on 26 March 2010. 156The Mental Health Plan is dated 26 March 2010 and contains handwritten circles. The practitioner's evidence is that she re-printed a plan prepared in December, updated it and changed the date to 26 March 2010. The handwritten circles would not be reproduced in the print out. The practitioner's evidence on how the circles appeared on the printed out plan appeared to be an afterthought. 157In view of the conflicting evidence of Patient B and the practitioner on this topic, we have regard to other objective evidence discussed above about when the Mental Health Plan was prepared. The objective evidence is equivocal. We are not satisfied to the requisite civil standard that the plan was prepared at a consultation on 26 March 2010 at which Patient C was present with Patient B. 158Although there is a dispute between Patient B's evidence and that of the practitioner about the practitioner speaking to Patient C, we find that, at some time proximate to March 2010, Patient B did telephone the practitioner in a state of agitation about her daughter's mental health and that the practitioner subsequently spoke to Patient C on the telephone. In making this finding we refer to our earlier assessment of Patient B's credibility. We accept and prefer her evidence to that of the practitioner on this topic. 159We are satisfied that notwithstanding the practitioner conceded a sexual relationship with Patient A from June 2010 she failed to disclose until her oral evidence at the hearing, that she had travelled with him to Canberra in April 2010, and that she did not disclose to Patient B her then close personal relationship with him. She remained in communication with Patient B by text until May 2010, but during that time it is not established, other than the telephone call to Patient C, that she treated either Patient B or Patient C. 160We accept that the practitioner's conduct in concealing from her long-time friend Patient B, from January 2010 up to early April 2010 her relationship with Patient A, may be considered by some as reprehensible, but we are not satisfied it constituted unsatisfactory professional conduct, or professional misconduct. We accept Mr Lynch's submission that the conduct may have been morally wrong, but it is not the Tribunal's function in this matter to determine moral issues. 161We find it noteworthy that on the day Patient A travelled to the Gold Coast to advise Patient B that their marriage was at an end (9 April 2010), the telephone call records unequivocally indicate he had telephone calls with the practitioner of lengthy duration. We infer, by this point in the practitioner's relationship with Patient A, it had become a very close dependent relationship. This finding is corroborated by the admission of the practitioner that Patient A travelled with her to Canberra in April 2010. We agree with Dr Kertesz that the practitioner's conduct at this time was below the standard expected of a practitioner of equivalent experience, and attracts criticism. We are satisfied by this time the relationship had "crossed the line", and the practitioner's ongoing treatment of Patient A in April 2010 does not reflect well on her. 162We accept that it is impossible to be confident of the exact number of SMS messages and calls made by the practitioner to either Patient A or Patient D. Dealing at this point in our reasons only with the records concerning Patient A, we are not satisfied that the SMS messages, Skype contact or telephones demonstrate a sexual relationship commenced between Patient A and the practitioner before the conceded date of June 2010. 163We are accordingly satisfied, based on our findings set out above, that particulars 1 (b) to (d) inclusive in the circumstances set out in (ii), (iii) and (iv) are established to the requisite civil standard. It follows from these conclusions we do not find particular 1 (a) is established. Findings about Patient D's relationship with the practitioner 164We have already noted that Patient D provided a statement, which was not subject of challenge, in which he denied that he had a sexual relationship with the practitioner. 165The practitioner's own evidence is that, during 2009, she was in regular text communication with Patient D,and that they had a close personal relationship and she discussed her own personal affairs, including matters relating to her family law proceedings. They also discussed Patient D's financial affairs and problems associated with the breakdown of his marriage. She also conceded that, in the second part of 2009, after she conducted the genital examination, she was well aware of the possibility of a sexual relationship developing between herself and Patient D. 166We have earlier recorded that we cannot, in light of our findings about Mr Gelfe's evidence, be satisfied that the number of mobile text messages and telephone calls set out in the complaint are accurate. But there were clearly a significant number of text messages, many late at night or in the early hours of the morning. We agree with Dr Kertesz's view that for the practitioner to communicate with a patient to this level was "untidy and messy". 167Ms Stern submitted we should reject Dr Kertesz's opinion that the text messaging between the practitioner and Patient D, in the context of the breakdown of Patient's D's marriage and its attendant stress, and in circumstances where there was a discussions of a sexual relationship between them, did not of itself constitute professional misconduct. Rather she submitted we should find the relationship between the practitioner and Patient D was an inappropriate close personal relationship by reason of the messaging. The Facebook Communications 168Ms Stern further submitted we should not accept the practitioner's evidence that the use of the initial "G" in her communication with Patient B was not at all times to be a reference to Patient D. 169In her oral evidence the practitioner, with an evident degree of embarrassment, said: Q. You gave some evidence about reference to the term "G", capital "G", and you said that "G, in some context, referred to a person called [xx](?)", and you also "G was used to refer to anyone interesting". Leaving aside any embarrassment, Doctor, what did you mean by "referring to anyone interesting"? A. Well, it was a common joke between myself and [Patient B] when - about - about men who - whom we were joking that they were quite sexually active and promiscuous and interesting in terms of sexually. And it was reference to a G-spot. Q. "G" was used to refer to men? A. Men. Q. In connection with the G-spot of women? A. Women, yes. Q. And was that in a serious way? A. No, no. It was - it was a joke. Q. A possibly, some might say, vulgar, flippant-- A. Well, it's a vulgar and flippant thing and it's not something that I would - I would've wanted to come up in public and in this context. Q. Was it used in relation to one person only or more than one person? A. No, to many, many people - few people, whom we both knew. 170The issue of the practitioner's text practices and use of Facebook are woven into the complaints at particular (iv) in complaint 1 and more generally in particular 2. This particular relates exclusively to Patient D. 171The nature of the Facebook communications between the practitioner and Patient B, were of a flippant, and at times, ribald nature. We cannot find, given Patient B's concession in cross-examination, with the requisite degree of certainty that, on each occasion "G" was mentioned, it was a reference to Patient D, although that may have been Patient B's understanding. 172At the same time as the flippant messaging, the practitioner also used Facebook as a medium to provide medical advice, and to provide results of blood tests. Patient B's evidence discloses that the practitioner's use of Facebook to communicate with Patient A after April 2010 in circumstances where she could also read the communications resulted in her trust in the practitioner being breached. 173While Dr Mackey referred to the Code for use of social media, we were not otherwise directed to any policy of the Medical Board of Australia or the Medical Council of New South Wales to guide doctors about appropriate use of social media and texting in a time of rapidly developing technology and changing methods of communication. 174The use of text messaging and the internet to make and confirm appointments, including medical appointments, is widespread and has practical benefits. But as the facts in this case demonstrate, a professional, including particularly, a medical practitioner, should observe in their communications appropriate care. The requisite care must ensure patient confidentiality is preserved. In this regard it is important professionals bear in mind information conveyed by text messages and social media can easily be corrupted or misused. The Tribunal sees a very real need for the Board and/or the Council, and other Health Professional Boards and Councils to provide guidelines for health professionals in this area. The Tribunal discerns any policy implemented by a practitioner that involves disclosure of confidential medical information via email, or social media should be subject of a patient's informed consent. Conclusions - unsatisfactory professional conduct and professional misconduct Patient A 175The practitioner concedes her conduct in respect of Patient A constitutes unsatisfactory professional conduct and professional misconduct from June 2010. Ms Stern submitted we should find her conduct prior to that date was inappropriate. In support of this submission she relied on the decision of the former Medical Tribunal of NSW in Dr Vipal Kumar Mehta and the Medical Practice Act of NSW (29 November 2002). There the Tribunal, in dealing with a complaint a practitioner had engaged in a sexual relationship with a vulnerable patient, who the practitioner asserted was a willing party, said: It is of course not the point that he perceived her to be a willing party. "Mutuality" in the relationship can never truly exist. The position of power occupation by a treating doctor is such that a relationship with a patient can never be truly "equal'. The doctor and not the patient has the ethical and professional obligation to avoid such relationships. As Denning LJ observed in De Gregory v General Medical Council [1961] AC 957 at 966 "even if she set her cap at him, he must in no way respond or encourage her" 176Lord Denning's comment is, of course, equally applicable if the practitioner is female. 177We are independently satisfied that the practitioner's conduct in respect of Patient A from April 2010, given the facts we find established, constitutes unsatisfactory professional conduct and professional misconduct for the reasons earlier elucidated. Patient D 178The practitioner sought to rationalise her conduct with Patient D on the basis he was a close personal friend, with whom she shared matters of a mutual personal nature, and that in a rural setting such a friendship with a patient was not inappropriate. She conceded particular 2 (b) of the complaint, namely that she discussed with him being in a sexual relationship in the second half of 2009. 179Ms Stern submitted that, given that concession, it is open to us to find that the relationship between practitioner and Patient D had reached such a stage of intimacy that it was an inappropriate close personal relationship in circumstances where Patient D was married, and had told the practitioner in a consultation in 2008 that he was stressed. Ms Stern highlighted the fact that the practitioner readily conceded she and Patient D had discussed their respective family law issues prior to discussion between Patient D and his wife that their marriage was at an end. She referred to the discussion in Health Care Complaints Commission v Howe [2010] NSWMT 12 at [54 -55] in support of her submission. There the Tribunal said: The conclusion of the experts ...that the conduct of the practitioner did not warrant criticism was based on a view that because sexual intercourse had not occurred, therefore the practitioner had not engaged in a sexual relationship and/or misconduct. The Tribunal is not attracted to such a narrow definition of a sexual relationship. It is at odds with the conclusion reached by Dr Phillips and that of the practitioner. Furthermore, in the Tribunal's view, in reaching a conclusion in respect of whether a practitioner has engaged in a sexual relationship with a patient, or how a relationship between a doctor and patient should be characterised, each case will turn on its own factual circumstances. 180 Mr Lynch, by contrast, submitted that while the practitioner's conduct in circumstances where she felt a romantic relationship was looming or possible, and told Patient D he should transfer to another general practitioner, was entirely appropriate conduct. He went on to submit "the fact she didn't succeed in terminating the relationship as time went by because circumstances altered and she resumed treating him following his motor bike accident does not in any circumstance make it inappropriate". He further submitted that the text messaging was explicable because of the practitioner and Patient D's friendship. 181Mr Lynch emphasised that the practitioner's conduct in respect of Patient D could not amount to conduct which, of itself, justified suspension or cancellation of her registration. The gist of his submission was, at its highest, we could only find the practitioner's conduct constituted unsatisfactory professional conduct. 182The Tribunal found the practitioner's conduct in respect of Patient D, in particular her failure to refer him to another practitioner in the second half of 2009, and to cease the doctor/patient relationship was inappropriate. We also found the level and timing of the text messaging was in 2008 and 2009 was, as Dr Kertesz opined, "untidy and messy". 183We are, however, not satisfied that the evidence before us established this conduct was of such a serious nature that it would justify the cancellation or suspension of her registration and thus constitute professional misconduct. Rather we accept Dr Kertesz's opinion that her conduct in discussing the possibility of a sexual relationship and referring him to another practitioner, but not following through on this, was below the standard expected of a practitioner of an equivalent level of training and experience, but did not attract strong criticism. In reaching this finding we take into account the unchallenged evidence of Patient D that he and the practitioner never had a sexual relationship. We also take into account the unchallenged evidence of Mr RS that on 17 July 2009 the practitioner stayed overnight in his house. 184Dr Kertesz, as we have earlier set out, agreed in cross-examination that he accepted that the practitioner's conduct in engaging in multiple text messaging did not, of itself, constitute a significant departure from accepted standards of a practitioner of equivalent experience such that it was professional misconduct. We accept his opinion. But each aspect of the practitioner's conduct in respect of Patient D cannot be construed in isolation. This conclusion is consistent with Dr Kertesz's view that the three aspects of the practitioner's conduct did fall below the standard and attracted his strong criticism. 185As the former Medical Tribunal made plain in Howe "each case will be characterised by its own facts". Here the practitioner conceded her relationship with Patient D was such that she discussed him attending another practitioner when they thought the relationship might develop into a sexual relationship. If Patient D had not been a patient the relationship between the practitioner and him, including their significant late night and early morning texting, may have been regarded by many in the community as inappropriate in circumstances where Patient D was actively contemplating divorce and property settlement and discussing this with the practitioner without his wife's knowledge. But absent any doctor/patient relationship it would not be unsatisfactory professional conduct or professional misconduct. 186The differing factor here is that the Patient D was the practitioner's patient at the relevant time. That distinction created, whether or not the practitioner perceived it, a power imbalance. Although the practitioner disputed a power imbalance the clinical notes disclose, as early as 2008, Patient D reported he was stressed. The practitioner could easily have refused to continue the doctor/patient relationship in 2009 and insist that Patient D saw another practitioner. It is relevant to note that the Code in force at the relevant time refers to observing professional boundaries with patients by not engaging in personal relationships or sexual behaviour with patients. 187We are satisfied that, on the established and admitted facts in this case, the practitioner's relationship with Patient D during the relevant period had "crossed the line" from a social relationship or casual friendship where it would be appropriate, particularly in a rural setting, to treat the person, to one where the maintenance of the doctor/patient relationship simultaneously with a close relationship where intimate personal emotional and financial matters were regularly discussed was inappropriate. 188We find that the practitioner engaged in improper conduct in the practice of medicine in continuing to treat Patient D particularly in 2009 whilst she maintained an intimate personal relationship with him even if that relationship had not became "sexual". We agree with Mr Lynch that the conduct, of itself, is not of sufficient gravity to warrant the suspension or cancellation of the practitioner's registration. But it accords with Dr Kertesz's view, which we accept, that relevant matters when considered "collectively" constitute a significant departure from accepted standards and invite strong criticism. Thus we are satisfied the practitioner's conduct in respect of Patient D constitutes unsatisfactory professional conduct as defined in s 139B (1) (a) of the National law. Protective orders 189Ms Stern submitted that, in determining appropriate protective orders, we should have regard to the fact that the practitioner attempted in her evidence before us to limit or minimise the type of care she provided to both Patient A and Patient D. She further submitted that we should reject the practitioner's explanation that answers provided to the HCCC in her solicitors' letter were unreliable because of her pregnancy and stress she was suffering at the date of that letter. 190Ms Stern further submitted we should find the practitioner's explanation of why it was inappropriate for a practitioner to have a close personal and/or sexual relationship with a patient demonstrated a lack of insight. Her lack of insight was also referred to in her assertion there was no power imbalance between herself and Patient D. 191Ms Stern also drew our attention to the fact that the practitioner did not acknowledge that both Patient A and Patient D could be, or were, vulnerable in circumstances of their respective marriage breakdowns. We find merit in these submissions. 192Further we accept that public perceptions of the medical profession may be tarnished by the type of conduct engaged in by the practitioner. 193In Health Care Complaints Commission v Do [2013] NSWCA 307 Meagher JA with whom Basten and Emmett JA agreed said: The objective of protecting the health and safety of the public is not confined to protecting the patients or potential patients of a particular practitioner from the continuing risk of his or her malpractice or incompetence. It includes protecting the public from the similar misconduct or incompetence of other practitioners and upholding public confidence in the standards of the profession. That objective is achieved by setting and maintaining those standards and, where appropriate, by cancelling the registration of practitioners who are not competent or otherwise not fit to practise, including those who have been guilty of serious misconduct. Denouncing such misconduct operates both as a deterrent to the individual concerned, as well as to the general body of practitioners. It also maintains public confidence by signalling that those whose conduct does not meet the required standards will not be permitted to practise. 194The discussion of the Court of Appeal in Health Care Complaints Commission v Litchfield [1997] NSWSC 297 including the reference by the Court of Appeal to the comments of Priestley JA in Ritcher v Walton is apposite to the matters in issue in this case. 195Mr Lynch carefully referred to the nature of the protective orders made in a vast number of cases coming before the former Medical Tribunal involving "boundary" issues. We accept in many cases cancellation or suspension of a practitioner's registration has not been ordered. But each case turns on its own facts and circumstances. 196The practitioner's demeanour in cross-examination, and a number of her answers demonstrated to us a lack of insight into the seriousness of her conduct. She did not appear to recognise the trust Patient A, B, C and D placed in her as their medical practitioner and any power imbalance between herself and them. Her evidence sought to minimise care she provided to Patient A and D. She relied on a technical or naïve definition of a patient. She steadfastly maintained it was not inappropriate to maintain a doctor patient relationship with Patient A until that relationship involved their acknowledged sexual relationship in June 2010. Her evidence caused us considerable reservations about her insight into issues raised by these proceedings. 197While the practitioner had notice of the proceedings for a considerable period of time, she had not endeavoured to make any enquiries about ethics courses or to engage in such a course, but rather had limited her enquiries to reading some Tribunal decisions and some literature. We do, however, take into account the practitioner is a very busy general practitioner in an area of need. We accept she has in relatively recent times established her own practice with other general practitioners. She has responsibility for the care of her elder son and a toddler. 198The practitioner said that she had not engaged in any ethics studies in her undergraduate studies, and that on obtaining registration in an area of need her supervisor had been Dr Rolleston. She explained that, by reason of her clinical experience in Macedonia, Dr Rolleston provided little by way of supervision. We accept the practitioner's evidence on this topic. It partly explains, but does not excuse, her lack of insight. 199We have taken into account the references provided by other practitioners and members of the Broken Hill community in support of the practitioner. Those references demonstrate she is a regarded by specialists, her peers and patients as a diligent, caring and competent doctor. Other referees refer to the high regard in which she is held in the Broken Hill community. None of the referees however are able to comment, except in the most general manner, on the issues involved in these proceedings. We have given careful regard to the fact that Broken Hill is an area of need, and that the practitioner's practice looks after the medical needs of a substantial cohort of the community. 200We are satisfied that, given the practitioner's involvement in these proceedings and the effect of them on her, that she is unlikely to engage in a sexual relationship with a patient in the future. We are however concerned that she presently demonstrates a lack of insight into aspects of her conduct. 201The practitioner's conduct as found by us is a serious breach of the standards the public have a right to expect of a practitioner. We are satisfied, because of the practitioner's lack of insight, and her attempts to minimise her conduct she is not presently fit to practise, and that her registration should be suspended for a period of three months. In this regard we are cognisant of the comments of Ward JA in Prothonotary of the Supreme Court v Da Rocha [2013] NSWCA 151 at [12]. 202In reaching this finding and in our determination that of a period of suspension of three months is an appropriate order to reflect our findings, we have carefully considered the concessions made by the practitioner, the views of her referees, her expressed willingness to engage with a mentor, and the effect of the loss of a practitioner to the local community in an area of need. Absent those factors, we are satisfied a longer period of suspension would have been appropriate. 203Because it will be necessary for the practitioner to make appropriate alternative arrangements for the care of her patients we propose to stay the operation of the suspension order for a period of three weeks from the date of our orders. Costs 204The relevant provision of the National Law dealing with costs is found in Schedule 5D (Clause 13). It provides as follows: (1) The Tribunal may order the complainant (if any), the registered health practitioner or student concerned, or any other person entitled to appear (whether as of right or because leave to appear has been granted) at an inquiry or appeal before the Tribunal to pay costs to another person as decided by the Tribunal. Relevant principles 205The relevant principles to be applied in respect of costs applications in disciplinary proceedings are subject of well established appellate authority including the decision of the NSW Court of Appeal in Ohn v Walton (1995) 36 NSWLR 77. The decisions emphasise the discretionary nature of a decision to award costs, and the fact that the discretion must be exercised judicially. 206The principles are summarised with reference to authority in Health Care Commission v Cieslak (No 2) [2013] NSWNMT23 at [23] 207In HCCC v Do Meagher JA cited as relevant the decision of HCCC v Philipiah [2013] NSWCA 342 at [42-45]. There the Court of Appeal re-affirms the relevant principles as follows: The discretion to be exercised in the award of costs is one to be exercised judicially ... As noted in the HCCC's submissions, unlike earlier legislation, the statutory provision in respect of costs in the National Law does not include a restriction on making a costs order unless there are special circumstances. Rather, the authorities now direct the Tribunal to generally order that costs should "follow the event" unless there are disqualifying circumstances from making an order in favour of the party seeking costs. Hardship of the losing party is not a relevant consideration. However, disqualifying factors may include matters such as the failure of the HCCC to establish professional misconduct if alleged in a complaint, to establish all the particulars of the complaint, or if the HCCC conducts proceedings in an oppressive manner, including taking procedural steps which unnecessarily increase the expense of the hearing. An early admission of a complaint may invoke the discretion (see Health Care Complaints Commission v Rolleston [2013] NSWMT 12). Discussion and Findings - costs 208There was a single issue in dispute between the parties in respect of costs. Mr Lynch submitted that the Tribunal should take into account that the HCCC had effectively, at the last minute, indicated it did not propose to rely on Dr Mackey's evidence. It was indeed unfortunate that an initial decision was made at the ninth hour by the HCCC not to rely on Dr Mackey's report or tender it in proceedings. It is not in doubt aspects of the report supported the practitioner's conduct. However, shortly before the hearing the HCCC agreed to tender Dr Mackey's report as part of the documents in the proceedings. Thus the practitioner had, as she had expected, the right to rely on the opinions expressed in his report which were favourable to her. 209It is relevant to note that the practitioner was aware for some considerable time prior to the hearing that the HCCC had obtained a second report dated 2 September 2013 from Dr Kertesz and that reliance was placed on that report. It was at all times thereafter open to the practitioner's legal representatives to confer with either Dr Mackey and/or Dr Kertesz. It is further relevant to note that the practitioner's legal representatives did not, on the evidence before us, confer by phone with Dr Mackey until 3 April 2014, and then sought and obtained an adjournment on 8 April 2014 obviating any possible prejudice to the practitioner by not having the opportunity to have Dr Mackey examine all the material provided to Dr Kertesz, to confer with him, and to adduce any additional evidence from him. As the matter proceeded after the adjournment, the practitioner did not adduce any evidence from Dr Mackey. 210In summary, the position remained as it was at 28 March 2014. 211We are not satisfied in the circumstances we have outlined that there is any special circumstances which justifies departure from the usual course namely that the practitioner pay the costs of the HCCC as agreed, and failing agreement liberty to restore before the Tribunal. ORDERS (1)The registration of Dr Biljana Nikolova-Trask (the practitioner) on the register of medical practitioners maintained by the Australian Health Practitioner Regulation Agency (AHPRA) in conjunction with the Medical Board of Australia is suspended under s 149C(1)(b) of the Health Practitioner Regulation National Law (the National Law) for a period of three months. (2)The operation of Order 1 is stayed 21 days from the date of these orders. (3)On the expiration of the period of the practitioner's suspension her registration shall be subject of the following orders and conditions: (d)The practitioner shall for a period of three years from the expiration of her suspension not engage in practice as a sole practitioner. (e)Within 12 months of the expiration of her suspension, or such further time as may be agreed with the Medical Council of NSW (the Council) complete at her own expense the distance education course "Medical Ethics" conducted by the Department of General Practice, Monash University, Victoria provided however if such a course is not available in 2015/2016 such other course as nominated by the Council. (f)Within 2 months of the expiration of her suspension, or such further time as may be agreed in writing with the Council, provide evidence in writing to the Council of her enrolment in the course referred to in Order 3 (b) of these orders. (g) (Within two weeks of completing the course referred to in Order 3(b) of these orders provide documentary evidence to the Council of satisfactory completion of such course. (h)Within 21 days of the expiration of her suspension the practitioner's shall: (i)provide for approval by the Council the name and professional address of a registered medical practitioner specialising in general practice, other than a practitioner practising in the same practice as the practitioner, who has agreed to act as her professional mentor. The nature and frequency of contact with the practitioner's mentor is to be determined by the mentor in accordance with the Council's Guideline for Mentors (the guidelines) but shall be not less than monthly; (ii)the practitioner shall provide to the mentor a copy of these reasons and a copy of the guidelines; (iii)meet with the approved mentor on a monthly basis, or on such more frequent basis as determined by the mentor within 14 days of the mentor being approved by the Council. If the practitioner remains practising in Broken Hill such contact may if necessary be by Skype or video-link; (iv)authorise the mentor to report to the Council if there is any concern about her professional conduct; (v)authorise the mentor to notify the Council of any failure to participate in any mentoring session, or to do any act or thing contrary to the advice of the mentor or any other matter the mentor considers appropriate; and (vi)continue to meet with the mentor for a period of not less than 18 months from the date of her first consultation with the mentor. (4)In the event that the approved mentor is no longer willing or able to continue as mentor the practitioner shall nominate another mentor for approval by the Council within 28 days of the termination of the original mentoring relationship. (5)Order 3 (e) (i) to (vi) shall apply in respect of any substitute mentor. (6)The practitioner shall be responsible for all costs associated with her mentoring pursuant to these orders. (7)The mentor is requested to include in discussions with the practitioner her personal and professional development as a registered medical practitioner and in particular any issues that may arise relevant to the matters identified in the Further Amended Complaint. (8)The Medical Board of Australia in conjunction with the Australian Health Practitioner Regulation Agency is requested to note the practitioner's suspension and the orders and conditions on the practitioner's registration to come into effect on the expiration of her suspension. (9)In the event that the practitioner seeks to review these orders and/or conditions under s 163A of the National Law and her principal place of residence is in NSW such application shall be heard by the Council as the appropriate review body. If the practitioner's principal place of residence is other than in NSW s 125 to s 127 of the National Law shall apply and the review body shall be the Medical Board of Australia. (10)The practitioner shall pay the costs of Health Care Complaints Commission of and incidental to the proceedings as agreed and failing agreement liberty to restore before the Tribunal. I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar Amendments 18 December 2014 - deidentify personal details Amended paragraphs: Coversheet and Paragraph 137 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: 18 December 2014