Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Quach [2015] NSWCATOD 2 Hearing dates: 10 September, 2014, 8-12 and 15-19 December, 2014 Decision date: 05 February 2015 Jurisdiction: Occupational Division Before: F Marks ADCJ, Principal Member Dr M Giuffrida, Professional Member Dr E Kertesz, Professional Member Dr C Berglund, Lay Member Decision: Each of the Complaints brought against the Respondent is made out. The conduct of the Respondent constitutes both unsatisfactory professional conduct and professional misconduct. The proceedings are stood over to 10 am on 10 April 2015 for further hearing, on which date the Tribunal shall hear evidence and submissions concerning the stage 2 process Catchwords: MEDICAL PRACTITIONER; professional charges excessive in amount and improperly charged constitutes both unsatisfactory professional conduct and professional misconduct. MEDICAL PRACTITIONER; conduct involving a number of patients including misdiagnosis, inappropriate treatment regime, poor communication skills, propensity to diagnose certain conditions and failure to accept advice from peers constitutes both unsatisfactory professional conduct and professional misconduct. MEDICAL PRACTITIONER; respondent found to have a mental impairment, disability, condition or disorder which detrimentally affects or is likely to detrimentally affect his capacity to practice medicine in that he suffers from narcissistic personality disorder and, furthermore, is thereby not competent to practice the profession under section 139 of the National Law as he does not have sufficient mental capacity to do so. Legislation Cited: Health Practitioner Regulation National Law¸ Health Care Complaints Act 1993 Cases Cited: King v HCCC [2011] NSWCA 353 Lucire v HCCC [2011] NSWCA 99 NSW Bar Association v Meakes [2006] NSWCA 340 HCCC v Wingate [2007] NSWCA 326 HCCC v Litchfield [1997] NSWSC 297 Richter v Walton, unreported, NSWCA 15/7/93 Administrative Decisions Tribunal of New South Wales in Legal Services Commissioner v Keddie [2012] NSW ADT 106 The Law Society of New South Wales v Foreman (1994) 34 NSW LR 408 Texts Cited: Good Medical Practice: A Code of Conduct Second reading speech of the Minister for Health, and Minister for Medical Research on the Health Legislation Amendment Bill 2013 DSM IV Category: Principal judgment Parties: Health Care Complaints Commission (Complainant) Dr Michael Quach (Respondent) Representation: Counsel: R Mathur (Complainant) C McKeown (Respondent) Solicitors: Health Care Complaints Commission (Complainant) Barrie Goldsmith (Respondent) File Number(s): 1420086,1420065 Publication restriction: Non publication orders protecting the identity of any patient of the Respondent Judgment Introduction 1. These proceedings are constituted by two notices of complaint made by the applicant the Health Care Complaints Commission ("HCCC"), against the respondent, Dr Michael Quach. The first notice of complaint is now constituted by a further amended notice of complaint. It contains 6 complaints made with respect to 5 former patients of the respondent. The notice of complaint makes allegations inter alia of incompetency, and seeks findings in the alternative of unsatisfactory professional conduct under section 139B of the Health Practitioner Regulation National Law ("the National Law") or professional misconduct under section 139E. The second notice of complaint concerns 4 former patients. This notice of complaint also contains allegations of incompetency but in addition alleges that the respondent has an impairment as defined in section 5 of the National Law in the nature of a narcissistic personality disorder. Alternative findings of unsatisfactory professional conduct or professional misconduct are sought, as well as a finding that the respondent is not competent to practice medicine under section 139 by reason of the alleged impairment. 2. Non-publication orders in the usual terms have been made with respect to all of the patients and former patients of the respondent. A Two-Stage Process 1. It was an agreed position between the parties that these proceedings should be conducted in a two-stage process. Given the nature and extent of the variety of allegations made against the respondent in both notices of complaint, it was appropriate that the Tribunal make such findings concerning each of the complaints brought against the respondent as it deemed fit, before giving the parties an opportunity to address it on what final protective orders (if any) should be made in disposition of the proceedings. The conduct of these proceedings on this basis is consistent with observations made by the New South Wales Court of Appeal in cases such as King v HCCC [2011] NSWCA 353 and Lucire v HCCC [2011] NSWCA 99. We shall proceed accordingly. Some Factual Background 1. The narration which follows contains information which is relevant to either the first notice of complaint, or the second notice of complaint, or both. It is based on a large volume of documentary material which became evidence in the proceedings. 2. The respondent graduated in medicine from the University of Sydney in 1996. He originally commenced an internship in Canberra in 1997 but resigned after two weeks. He then applied in 1998 to the Medical Board of NSW for registration. He was referred to Dr A. Samuels, a psychiatrist nominated by the Board for assessment. Dr Samuels was of the opinion that it was possible that the respondent was suffering from a paranoid psychosis and his application for registration was deferred. Upon further enquiry as to his then mental state, it was determined that he would be eligible for registration as an intern with conditions, including entry into an Impairment Program. He remained in that program until 16 November 2004 when these conditions were removed. 3. The respondent was first registered on 23 September 1999. He gained his fellowship of the RACGP in January 2006. Following a patient complaint, a panel of the Medical Board interviewed him on 22 July 2008 and recommended that he be considered for a Performance Assessment, although it seems that this may not have taken place. Much of the material which follows immediately is taken from a decision of members of an Impaired Registrants Panel following an inquiry under section 173 of the National Law, dated 4 July 2012. 4. Following upon further complaints a Performance Assessment Report was issued concerning the respondent's practice. The extract of the report contained within that decision concludes that although the respondent "has reasonable medical knowledge", he "has created a niche for himself in which he charges excessive fees and therefore feels obliged to dramatically over investigate and provide unusually extensive medical treatment, as evidenced by his practice of administering IV antibiotics and fluids to patients outside a safe medical setting." His treatment was considered to be potentially harmful to patients. Section 66 proceedings were then commenced against the respondent in response to the outcome of the Performance Assessment as well as a further complaint, with which we are not concerned in these proceedings. Based on information given to the delegates who dealt with the section 66 proceedings, as reflected in the decision of 4 July 2012, they were critical of the respondent's clinical judgement, his charging practices and they were concerned about a possible impairment. 5. As a result, they imposed practice conditions on the respondent's registration effective 17 August 2009 and referred the matter to the HCCC. In essence, the respondent was prohibited from administering intramuscular and intravenous antibiotic injections and intravenous fluid infusions. He was placed under level 3 supervision as contained in the New South Wales Medical Board's Guidelines for Supervision. He was also required to attend regular Review Interviews, to attend for treatment by a psychiatrist of his choice and to attend for review by a psychiatrist nominated by the Board. 6. The respondent attended on a psychiatrist nominated by the Board, Dr Jonathan Phillips on a number of occasions. Dr Phillips provided a number of reports to the Board. 7. The first report is dated 20 July 2009. In addition to interviewing the respondent, Dr Phillips had been provided with a substantial amount of material traversing earlier interaction between the respondent and various medical authorities. In particular Dr Phillips had available earlier reports of Dr Samuels. In his report, Dr Phillips said that "(t)his is an unusually difficult case." He noted that potentially there were three matters of concern namely, the possibility that the respondent suffered from an impairment, his performance in the practice of clinical medicine, and his charging practices. He confined his comments to the "possible issue of impairment." Dr Phillips noted that the respondent had had a number of difficulties in the course of his training, including interaction with senior personnel within the Department of Psychiatry, complaints about the respondent made by colleagues, medical administrators and patients especially during his intern years, and allegations made by the respondent about physical assaults upon him by three medical practitioners. He thought that the assaults were unlikely, and that it was possible that the respondent may have interpreted "relatively minor events in a paranoid manner". The reports of Dr Samuels had first indicated that the respondent was suffering from a paranoid psychotic illness, but by 2002 Dr Samuels considered the respondent ready to leave the Impaired Registrants Program. Although complaints made by patients, concern expressed by two medical practitioners who had carried out a clinical audit of the respondent's practice, and concerns about interaction and communication with patients as well as charging practices were "within the performance domain mainly", Dr Phillips was concerned that they may "reflect an inability by Dr Quach to organise a clinical practice within the accepted limits of Australian medicine, and thus possibly reflect issues of impairment." He also highlighted the "probable grandiosity" of the respondent, giving examples of the way the respondent had described the establishment of "an outstanding medical practice" by him. Dr Phillips was unable to conclude that the respondent had any recognisable or diagnosable paranoid or other psychiatric disorder but said; "I believe an underlying paranoid disposition or paranoid illness cannot be ruled out." He concluded that the respondent was "a medical practitioner who may be suffering from an impairment which will put the public at risk." He thought that the respondent should again be incorporated within the Impaired Registrants Program. 8. Dr Phillips next reported on 17 September 2009 following a recent attendance by the respondent. He had the "very strong impression that Dr Quach had no desire to be interviewed and was prepared only to interact with me and in a minimal manner. It was not possible to establish working rapport with Dr Quach in any manner." Dr Phillips remained "deeply troubled" by the mental state of the respondent. He was concerned that the respondent did not have any appreciation that aspects of his medical practice had been unusual "and would not be accepted by peers of good standing as being either appropriate or proper." He thought that either the respondent was correct in believing he was being victimised by a conservative profession or that he had "an underlying health problem which leads him to hold the grandiose view of his practice skill, and leads him to practice in unreasonable isolation." He thought that the most likely reason for the latter conclusion was an underlying paranoid disposition or paranoid disorder. He concluded that "on the basis of the relatively meagre clinical information currently available to me, I am once again unable to safely conclude that Dr Quach has any recognisable or diagnosable…. paranoid disorder or any other….. psychiatric disorder." He did remain concerned that the respondent remained impaired and he believed that it was essential to maintain his practice conditions in the foreseeable future. 9. In a report of 25 November 2009, Dr Phillips thought that there was a mild improvement in the respondent's condition. He presented as being less grandiose than previously although he remained highly guarded in the manner in which he related to him. 10. In a report of 15 March 2010 Dr Phillips noted that interaction between himself and the respondent was becoming easier and he felt "we have a better understanding of each other on this occasion." He thought there would be further improvement. He suggested that his next review could be less frequent, but that the respondent should remain in the health program. This situation was essentially unchanged as related in a report of 15 June 2010. 11. The last available report is 4 February 2011, following a brief interview. The respondent continued to tell Dr Phillips that each of two psychiatrists upon whom he was attending for treatment, namely Dr B. St George and Dr Y. Skinner had not found any diagnosable psychiatric disorder. Dr Phillips agreed with this, although he thought that the poor rapport which he had with the respondent remained an issue. He was unable to determine whether this was a cultural issue or "whether his coolness and distance reflects personality issues." He suggested that the Council might reconsider whether the respondent should continue in the health program. 12. In April 2011, following a Practice Audit completed in October 2010 and which identified a number of "significant concerns" about the practice of the respondent including diagnosis, treatment, ethical boundaries, the use of video and audio recordings etc, proceedings were convened under section 150. The delegates who conducted the proceedings expressed concerns about a number of matters and varied the practice conditions by imposing supervision at level 2, rather than level 3. The respondent sought a review of this decision under section 150A. In a report dated 28 September 2011 the delegates determined to confirm their previous decision. 13. Concurrently, a patient complaint, with which we are not concerned, was referred to a Professional Standards Committee. In a report dated 31 October 2011, the then current conditions imposed on the respondent's registration were modified by requiring him to undertake a course, Foundations of Mental Health Care Assessment. 14. An Impaired Registrant's Panel was convened on 3 May 2012, issuing a report dated 4 July 2012. The Report notes that in March 2012 difficulties arose with the supervision of the respondent at his then current practice where he was engaged, and the availability of alternate supervisors in that practice. 15. The members of the Impaired Registrant's Panel reviewed a large amount of documentation including a number of psychiatric reports and had the opportunity of discussing their concerns with the respondent who attended in person with a legal representative. At the conclusion of the proceedings the members of the panel indicated that in their view the respondent met the criteria for impairment, and they recommended a number of additional health conditions. Dr Quach declined to voluntarily agree to these conditions. In the interim, pending Council's consideration of the Panel's recommendations, Dr Quach's existing practice conditions were continued. 16. By letter dated 5 July 2012 the Medical Council of NSW advised the respondent that because he had failed to agree with the conditions imposed on his registration at the conclusion of the Impaired Registrants Panel proceedings, the Council had resolved to refer the matter as a complaint to the HCCC pursuant to section 152L of the National Law. By letter dated 7 September 2012 addressed to the HCCC, the Medical Council said that its Conduct Committee, having considered a health notification by Dr J. Ellis, and certain supervision reports, asked that proceedings be convened against the respondent under section 150 to determine whether any appropriate action should be taken. The HCCC was advised that the proceedings were to commence on 18 September 2012 and that those proceedings would also consider an application brought by the respondent for review of the practice conditions under section 163B. 17. We have available to us the written decision of the delegates of the Medical Council of NSW in the section 150 proceedings, delivered on 11 December 2012. The delegates determined that the respondent suffered from an impairment as defined in section 5, and further determined that the matter should be dealt with as a complaint pursuant to section 150F, and investigated with other matters then already under investigation by the HCCC. For completeness, we note that modified conditions were imposed with effect from 27 September 2012. 1. It is pursuant, inter alia, to this referral that the HCCC issued the second notice of complaint which is one of the bases of the proceedings before this Tribunal. Supervision Reports 1. As a result of the supervision conditions imposed on the registration of the respondent, a number of supervisors' reports were created. The supervisors concerned gave statements to the HCCC for the purpose of its investigation into the conduct of the respondent. The information provided by the supervisors, and in particular their statements became evidence in the proceedings. Baulkham Hills Medical Centre 1. The respondent was engaged to work in the centre from 4 October 2011 to 8 March 2012. 2. Dr James Jeong agreed to become a supervisor of the respondent from October 2011. He has been registered as a general practitioner since 1995, and has provided supervision to a number of university medical students. In his statement, Dr Jeong said: 1. The respondent told him when he first started working at the centre that he had been the victim of a vendetta by a patient and there had then been a misunderstanding on the part of the registration authority. The result was that he had unreasonable conditions imposed on his registration 2. He became increasingly frustrated with the attitude of the respondent and arranged for Dr Poulos to take over supervision some time in January 2012. The respondent blamed the patients and rejected all clinical advice that he gave him and it was impossible to continue to supervise the respondent. 3. Within about a week of the respondent arriving at the medical centre complaints were received from patients about the respondent's communication and clinical advice. He advised patients strongly and unreasonably that calcium channel blockers and statins were harmful and should not be used, despite documented cardiac conditions and/or high cholesterol. This created anxiety and worry for patients who had to be reassured and convinced that the benefits far outweighed any risks of side effects. 4. The respondent was fixated on certain diagnoses and treatments and diagnosed a large number of patients as having asthma. 5. Without consultation with anyone, he unilaterally ordered nursing staff to remove androgen blockers stored in the surgery because he said they could affect the fertility of men. He did this even though the medication was in sealed packaging and was not a hazard. 6. It was difficult to work with the respondent "because he gave the impression that he was always right and everyone else was wrong." Dr Jeong could not recall a single occasion when the respondent acknowledged that he could have done things differently or that he might be wrong. 7. After providing critical feedback to the respondent, the respondent told him that he had a good relationship with his previous supervisor. Upon questioning, the respondent said that the previous supervisor had "stabbed him in the back" because he wanted the respondent to continue working for him and had therefore given a negative report to the Council. 8. Patients of the practice complained to him that the respondent was rude and arrogant, and was dismissive of their concerns. The respondent told him that he recorded consultations with patients because they complained about him without cause. 9. When told that he was the only one of 10 doctors in the practice about whom patient complaints were received, the respondent said that all those patients had a problem. 10. He arranged to terminate the services of the respondent in consultation with Dr Poulos because the respondent "repeatedly upset our regular patients." In addition he was concerned for the safety of the patients because the respondent "failed to consider a range of possible diagnoses or treatments." He said further "I remain of the opinion that Dr Quach, as he presented to me, was not safe to work as a doctor. He was unable to accept feedback and he was convinced he was right in every case that we discussed. He blamed the patients if they complained, and rejected their version of events." 11. Significantly, in contradistinction to an assertion made on behalf of the respondent, a reason was given for the dismissal of the respondent from the practice. At par 31 of his statement, Dr Jeong said; "I spoke with Dr Quach and explained to him that he had to go, we could no longer have him at the practice. I pointed out that I was telling him to his face and he could not accuse me of "stabbing him in the back" as he had said of his previous supervisor. I stated very clearly that I believed he had a psychiatric problem for which he needed help and that he needed to get treatment before he should try to work as a doctor." 1. Dr Constantine Poulos has been a registered medical practitioner since 1982. He has worked at the centre since 1989 and has provided supervision and mentoring to a number of general practitioners. He supervised Dr Quach from November 2011, initially when Dr Jeong was on holidays or sharing supervision, and provided monthly reports up until March 2012. In his statement, Dr Poulos said: 1. "I found that Dr Quach often made sweeping statements about patients. He had certain set views which were not in line with his peers. For instance he frequently diagnosed asthma in patients who had no previous history of asthma. He rejected certain medications including statins and antihypertensives including calcium channel blockers, without taking into account the person's clinical history. He made comments about the smell or appearance of patients which were not relevant to their clinical situation. This communication style resulted in a large number of patient complaints which had to be dealt with by other doctors at this practice." 2. There were a number of instances where he was concerned about clinical decisions made by the respondent. Some were reported by other doctors and some had been told to him by his patients who had seen the respondent in his absence. He set out specific incidents concerning named patients, which we do not reproduce. 3. He participated in the decision to terminate the services of the respondent, and cease supervision, effective from 9 March 2012. 1. Cindy Watts was the practice manager at the centre whilst the respondent worked there. She has worked in an administrative role at that centre for 15 years. In her statement, she said: 1. During the period that the respondent worked at the centre she received more patient complaints about him than she had received in the whole 15 years she had worked there. 2. After receipt of a complaint she habitually approached the respondent to talk to him about it "in an effort to find a solution." On nearly every occasion that she spoke to the respondent about a patient complaint he responded by saying that he had conducted himself in a particular way because he had "a duty of care." In response he would always say that he was right, and he would sometimes say that the patient was exaggerating the matter. 3. "Michael could be a nice guy and quite charming. He could be very convincing. After he described his version of events to me, I would often start to doubt myself and my concerns." 4. As time went on the number of complaints increased. Often complaints would be received on each day that the respondent worked at the centre. "On the days when no complaints were made about Michael, staff would sometimes comment on the fact." Botany Medical Centre 1. The respondent worked at the centre between April 2012 and July 2012. He was supervised by a principal of the practice, Dr Hoang, and Dr Vyas. 1. In her statement, Dr Hoang said; 2. She has been registered since 1997. 3. At the time of engagement the respondent told her that he required supervision because of only one case in which he had personally been involved and that the issue was not serious. She accepted this explanation without contacting the previous supervisor. 4. While the respondent worked at the practice she received a lot of verbal complaints about him from patients because his mannerism was rude or arrogant and because of lack of empathy. She and other staff noted that his behaviour was erratic and he often appeared to be rude to patients. His patient load was mixed, and complaints were made by a number of different patients with very different backgrounds. "There were a few patients who he saw more than once, but mostly patients didn't want to see him a second time due to his rude manner." 5. His clinical decision-making was not "the problem" and there were a couple of complex clinical matters which he dealt with very well. 6. The respondent did not accept counselling about better communication by way of explanation of diagnosis and treatment. He said the staff at the practice made it hard for him, because he was not "a sweet talker" but the other doctors were and this raised expectations of patients and created difficult patients. 7. In a supervision report she recorded a case of a child who presented with a fever and coughing and yet was diagnosed by the respondent suffering asthma for the first time and treated for that condition. She endeavoured to explain to him that asthma did not explain the reason for the fever, but the respondent rejected this suggestion. "He did not accept that there could be an infection causing the fever." 8. In another supervision report she recorded the case of a teenager who presented with a painful and swollen foot which had not responded to 2 courses of antibiotics. The respondent diagnosed eczema and sent the boy home. It was her clinical opinion that the respondent should have referred him to emergency "because he had a history of hip fracture with nerve damage." 9. She had a large number of regular meetings with the respondent because of the large number of complaints. She said that she tried to get the respondent "to think about the effect of his behaviour on patients. I felt Michael refused to accept the feedback given to him. In each case he argued that he was right and the patient was wrong." He often raised his voice and argued. 10. Because of the number of complaints about the respondent and her concern "about his mental health" his working hours were reduced from 40 to 20 per week. This did not result in any improvement in his doctor- patient relations and in July 2012 "we asked him not to come in any more even though we still needed staff…… I believe Michael needs psychiatric treatment and care…… At Botany Medical Centre we are very flexible and understanding. Based on my experience supervising Michael, it is my impression that Michael is unlikely to last more than about one month in any practice due to his personality issues and poor communications skills." 1. Dr Vyas has been registered since 1997 and has provided supervision and mentoring to many residents at the Sydney Children's Hospital when working as a paediatric registrar. She did not have a principal supervisory function with the respondent, but endeavoured to assist him where possible. In her statement she referred to incidents where she was compelled to deal with patients of the practice who had complained about their interaction with the respondent and in particular his manner and attitude. Newtown Medical Practice 1. The respondent worked at this practice under supervision from 10 September 2012 until 20 February 2013. He was supervised by the principal of the practice, Dr Sara Guirgis. In her statement, she said; 1. When the respondent first started working in the practice he was very "tight" and did not seem comfortable with them. She counselled him about this and said that he listened to her advice and showed a lot of improvement. However, she then went on to say "I tried very hard to help Dr Quach but it was difficult. His clinical skills were average. I repeatedly had to tell him to prescribe antibiotics for patients who reported symptoms of urinary tract infection. He would order testing but he did not want to prescribe antibiotics until the urinalysis results were known. I told him that the patients need to start on the antibiotics without delay. After discussions he finally agreed with me." 2. The practice received complaints about the respondent from patients "every day". The complaints related to his relationship with the patients and he was accused of being rude, and refusing to issue a sick certificate. 3. On 20 February 2013, she learned for the first time that the respondent was bypassing a billing system which she had established and was billing patients whose fees were to be paid by WorkCover directly using his own name and provider number. She terminated his services immediately. Kaleen Medical Practice in the ACT 1. There is in evidence supervision reports from the period March 2013 until September 2013 inclusive issued by Drs Susan Morton and Helen Wessell. These reports indicate that the respondent performed well in this practice throughout this period with no concerns raised about any matter by either supervisor. Weston Creek Medical Practice in the ACT 1. The respondent appears to have worked in this medical practice in the ACT. His nominated supervisor was Dr Stan Doumani who provided supervision reports for June and July 2014. 2. The June report said; "over the period of the last month, the first in which he has worked in my practice we have met to discuss patients three times per week, for the first week I reviewed all of his patient notes and histories and found them to be of exemplary quality. In terms of his planning of investigation and treatment and whilst no (sic) always strictly in accord with what I personally would have done his approach has been medically valid." 3. In response to a question about whether the respondent had encountered any particular difficulties at work Dr Doumani said that the respondent had dealt with 2 difficult patients and had handled them quite well. He thought that he was doing well. However the respondent had encountered issues because a search of his name on the Internet took a searcher into the website of the Council "where a complete and un-redacted version of his hearing is available to all and sundry to read. This is an untenable situation and needs to be redressed forthwith. It is three years now since his indiscretion and I question how long this punishment must last and when it is that punishment becomes the vilification." He thought that there was little or no chance of successful rehabilitation whilst the respondent's history is on the website. 4. The July 2014 report was to similar effect. In dealing with the clinical performance and progress of the respondent over the prior month, Dr Doumani said: "he continues to perform well although there have been a few instances where I have disagreed with his approach. Every now and then he tends to alarm people a bit which I suspect accounts for some of the complaints against him in the past. He does sometimes to fix on a particular diagnosis." 5. There appear to be no further supervision reports from this practice, so it may be assumed that the respondent ceased working there in around August 2014. Comments by the respondent on his supervision experience . 1. In a letter dated 18 September 2012 written by solicitors then acting for the respondent, comments were made concerning the supervision experience of the respondent at some of the practices discussed above. 2. With respect to the Baulkham Hills practice the solicitors said, presumably acting on instructions, that in March 2012 when he was advised by Doctors Poulos and Jeong that they could no longer supervise him, no reason was given. This is in sharp contradistinction to paragraph 31 of the statement of Dr Jeong which we have set out above. For reasons which we shall later develop, we have formed the opinion that the respondent is prepared to fabricate stories and engage in a false reasoning process in order to assist his circumstances. The evidence of this tendency is so widespread that unless we find compelling reasons otherwise, we would prefer to accept the evidence of any person, or which is contained in any document rather than any contradictory evidence of the respondent. 3. With respect to the Botany Medical Practice, the respondent through his solicitor said that he had an ongoing disagreement with the principals of the practice, he indicated that he would be leaving and it was after this that this supervision reports became critical of him. He also disputed a number of the comments and observations made in the supervision reports. Complaints Made by the Respondent 1. A number of complaints have been made by the respondent about persons who have had some involvement with him in the course of his dealings with the Council and the Board. He has also made a complaint about the father of two patients. 2. There is in evidence records of a number of complaints made by the respondent to the Australian Health Practitioner Regulation Agency concerning a number of health practitioners. They were said to have been made pursuant to the "Mandatory Reporting legislation." In summary, the complaints concerned; 1. Dr Don Child who participated in a section 66 hearing on 28 May and 12 August 2009. It was alleged that he was guilty of professional misconduct in misrepresenting his expertise as a clinician. The respondent said "he is in his eighties and not fit to discuss clinical matters." He alleged a significant departure of acceptable standards. 2. Dr Ivor Zetler who also participated in the same section 66 hearing. It was alleged that he was guilty of professional misconduct because he had misrepresented his expertise in dealing with "Hospital in the Home" treatment. 3. Dr Victoria Sutton who had commented on the practice of the respondent which was used in the section 66 hearing. She was alleged to have written a false and misleading report for evidence and misrepresented herself as having expertise in "Hospital in the Home" treatment. 4. Dr Louise King. The same allegation was made against her as was made against Dr Sutton. 5. Dr Jonathan Phillips who gave evidence as a consultant psychiatrist in the section 66 hearing. It was alleged that he was guilty of professional misconduct and corrupt conduct. 6. Dr Walid Jammal, who, together with Dr Kathryn Hutt was appointed to audit the respondent's practice. The notification stated that this Dr "is largely incoherent and there is evidence of thought disorder in his prepared report…Dr Jammal exhibited signs that are consistent with substance abuse. I must stressed (sic) that I have not witnessed any drug taking." In a letter accompanying the notification of the respondent discusses the occurrence of anaphylaxis and said that Dr Jammal exhibited "concrete thinking." He also criticised the reproduction of a passage from his notes which he said "shows looseness of association." He also said that Dr Jammal had used the word "co-dependency" and he did not know what was meant by this. 7. Dr Harry Nespolon. The respondent alleged that this doctor deliberately misinformed a former patient of his about a particular treatment so as to cause distress to the patient for the purpose of exacting revenge upon the respondent for a contract dispute. This was said to arise out of evidence given in a section 66 hearing. 1. There is also evidence of a complaint made by the respondent on 2 April 2013 to the New South Wales Police against a doctor arising out of the involvement of that doctor in a Professional Standards Committee decision concerning a patient of the respondent. 2. Finally, there is in evidence a complaint made by the respondent to the Department of Family and Community Services alleging inappropriate conduct by the father of RJ and TJ, patients whose circumstances will be discussed in connection with the first notice of complaint. The allegation is that the father provided false information to the respondent in relation to treatment received prior to him seeing his two sons. The complaint was made on 18 October 2012, some considerable time after the father had attended the respondent's practice on 12 January 2008. As will be obvious, when we come to discuss this matter, the complaint is without any factual basis, but the fact that it was made at all, and so long after the consultation, gives rise to some concern about the behaviour of the respondent. Expert Evidence 1. The following gave expert assistance in the proceedings concerning certain aspects of the respondent's practice; Dr Simon John Whitfield Young 1. Dr Young graduated in medicine in 1983. Since 1987 he has been a partner in a general practitioner private practice. He holds a number of teaching positions including an Adjunct Senior Lecturer position in the discipline of general practice, discipline of paediatrics and child health, at the University of Sydney. His CV indicates that he is intimately concerned with the teaching and supervision of medical students and is involved with the continuing education of general practitioners. 2. Dr Young provided a number of written reports in response to a retainer from the HCCC asking him to comment on a number of complaints which it was investigating concerning the conduct of the respondent. Dr Young was provided with a large volume of documentation, some of which concerns patients who are not the subject of these proceedings and we will, of course, not take into account any opinion expressed by Dr Young based on anything which he has said which is not related to the complaints made in these proceedings. 3. We should observe that we have found that the opinions expressed by Dr Young are prima facie based upon the clinical notes of the respondent and other documentary material which is before us in these proceedings, are plausible, and expressed in straightforward terms. Dr Young gave oral evidence and was extensively cross-examined on his reports. He gave his evidence in a direct and straightforward manner without endeavouring to unduly embellish it in any way. We are comfortable in relying on his opinions, to the extent that they are referred to and reflected upon in these reasons. Dr R.G. Beran 1. Dr Rory Gary Beran is a specialist neurologist medical practitioner. He was qualified by the respondent to furnish an expert opinion to the Tribunal concerning the various complaints made by the HCCC against him. Dr Beran provided a lengthy report dated 29 October 2014. 2. The report of Dr Beran was challenged on behalf of the HCCC on the basis that he was a specialist neurologist and he was therefore not qualified to give an expression of opinion concerning the practice of medicine by a general practitioner. During the course of the conduct of a voir dire by counsel for the HCCC it emerged that Dr Beran had practised as a general practitioner in the 1970s, and had sat and passed a fellowship exam conducted by the RACGP. He has also acted as an examiner for the RACGP. Furthermore, he has a commission in the Royal Australian Navy which requires him to perform the functions of a general practitioner if deployed. He said that he has kept himself appraised of general practice for this purpose. Furthermore, Dr Beran thought that in reviewing the work of a general practitioner he would be more likely to set a higher standard than a lower standard as to what constituted acceptable practice. 3. We are satisfied that it is appropriate to receive the expert opinion of Dr Beran in these proceedings. Other Expert Evidence 1. Other expert evidence was given in the proceedings, but it is more appropriate to deal with it in the context of particular complaints because of its confined nature. The Code of Conduct 1. In the course of these reasons for decision we shall refer from time to time to the Good Medical Practice: A Code of Conduct for doctors in Australia. This is a code developed by the Medical Board of Australia pursuant to section 39 of the National Law. It is intended, inter alia, to provide guidance to registered health practitioners. Importantly, for our purposes are the provisions of section 41 of the National Law, which determine that the Code can be used as evidence of what constitutes appropriate professional conduct or practice. Section 41 is in the following terms: 41 Use of registration standards, codes or guidelines in disciplinary proceedings An approved registration standard for a health profession, or a code or guideline approved by a National Board, is admissible in proceedings under this Law or a law of a co-regulatory jurisdiction against a health practitioner registered by the Board as evidence of what constitutes appropriate professional conduct or practice for the health profession. 1. We are assessing the conduct of the respondent as at this date, albeit that some of that conduct may have occurred before the code was published. Nevertheless, we are of the opinion that the principles set out are of general application notwithstanding when the conduct occurred, and would apply in any event as reflecting the general standards expected by the community in assessing the conduct of a medical practitioner. The Failure of the Respondent to Give Evidence 1. At the commencement of the case for the respondent, his counsel announced that he would not be giving evidence. It was said that the respondent had previously given evidence and had provided written information in connection with other proceedings brought against him by relevant authorities arising out of the circumstances of his practice. Furthermore, he had provided 2 written statements which were evidence in the proceedings. Counsel for the HCCC submitted that the respondent, consistent with the privilege bestowed upon him to practice medicine, was obliged to give evidence before this Tribunal, that his failure to do so should be appropriately criticised and that the tribunal should be entitled to draw inferences adverse to the interests of the respondent in those areas of controversy where the Tribunal would have benefited from the evidence of the respondent and he had failed to give it. Reliance was placed by way of analogy to observations at appellate level in cases such as NSW Bar Association v Meakes [2006] NSWCA 340 which concerned proceedings against a barrister. 2. There are statements contained in cases at appellate level which deal with "the public interest in the proper discharge by medical practitioners of the privileges which the community accords to them, and in the dual accounting for the exercise of the influence which the nature of the occupation permits them, and indeed requires them, to exert over their patients." See, for example, the extract from the judgment of Hope AJA set out at [47] of HCCC v Wingate [2007] NSWCA 326. However, the discussion in that and adjoining paragraphs concerns a right to silence or privilege against self-incrimination in the context of an obligation to give evidence, which is to be distinguished from the circumstances of these proceedings. 3. Furthermore, there are some observations of Basten JA, with whom McColl JA and Sackville AJA agreed in Lucire V HCCC (Ibid) which compel the exercise of some caution in pursuing a too broad based approach. At [132] – [134], His Honour said; 132. First, the conclusion which follows from this review of authority is that there is no support for the proposition that a specialist Tribunal (whether a jury or a disciplinary Tribunal) is obliged to draw adverse inferences in the absence of an explanation from the respondent. Such an obligation (at least as expressed in such absolute terms) would be inconsistent with the entitlement of the Tribunal to take into account the circumstances in which the failure to offer an explanation arose, including the importance of the matter in the proceedings and the potential adverse consequences for the practitioner of failing to proffer an available explanation. 133. Secondly, the Commission needed to demonstrate that the Tribunal had in fact held that it was not able to draw adverse inferences, as a matter of law, as distinct from declining to draw such inferences in all the circumstances. 134. Thirdly, to demonstrate that any such error was material, it was necessary for the Commission to identify the kind of inferences which it sought to have the Tribunal draw, which were not properly considered. 1. We intend to proceed having regard to the caution noted in Lucire. We shall restrict any entitlement to draw any inference adverse to the interests of the respondent to those circumstances where his evidence about a particular matter would have been of assistance in prosecuting any particular situation which he had advocated in his interests for the purpose of the proceedings. We are entitled to rely on such evidence as is available about a particular matter in the absence of any evidence from the respondent which is prima facie available to him, assuming, of course, that it is safe and appropriate to rely on the evidence otherwise available. The Validity of the First Notice of Complaint 1. The first notice of complaint, in matter number 1420086 was made on 8 May 2013, amended on 14 February 2014 and further amended on 17 September 2014. Relevantly, for the purpose of dealing with the jurisdictional argument, we note that it commenced in the following form: (Further Amended) NOTICE OF COMPLAINT TAKE NOTICE THAT the Medical Tribunal of New South Wales has received a complaint from the Health Care Complaints Commission following consultation with the Medical Council of New South Wales in accordance with sections 39(2) and 90B(3) of the Health Care Complaints Act 1993 and section 145A of the Health Practitioner Regulation National Law("the National Law"); THAT Dr Michael Quach of 75 Camden St, Newtown NSW 2042 ("the practitioner'), being a medical practitioner registered under the National Law: 1. There then follows material which deals with each of 6 patients, which we will consider later in these reasons. 2. The respondent submitted that because the complaint was initiated by the HCCC, it was not valid because the HCCC was not competent to make a complaint under the relevant legislation in the form that it took at that date. 3. Relevantly, for the purpose of these proceedings, the making of complaints is governed by the Health Care Complaints Act 1993. Section 3 of that Act sets out the object and principle of administration and is as follows; 3 Object and principle of administration of Act (1) The primary object of this Act is to establish the Health Care Complaints Commission as an independent body for the purposes of: (a) receiving and assessing complaints under this Act relating to health services and health service providers in New South Wales, and (b) investigating and assessing whether any such complaint is serious and if so, whether it should be prosecuted, and (c) prosecuting serious complaints, and (d) resolving or overseeing the resolution of complaints. (2) In the exercise of functions under this Act the protection of the health and safety of the public must be the paramount consideration. 1. By section 4, "complainant" and "complaint" are defined as follows: "complainant" means: (a) the person making a complaint, except as provided by paragraph (b), or (b) the client on whose behalf a complaint is made if the complaint is made by a person chosen by the client as his or her representative for the purpose of making the complaint. "complaint" means a complaint made under this Act or a complaint made under another Act that is able to be dealt with by the Commission under this Act. 1. Part 2 of the Act deals with complaints. Sections 7 to 11 are in the following terms: Division 1 – The right to complain 7 What can a complaint be made about? (1) A complaint may be made under this Act concerning: (a) the professional conduct of a health practitioner (including any alleged breach by the health practitioner of Division 1 or 3 of Part 7 of the Public Health Act 2010 or of a code of conduct prescribed under section 100 of that Act), or (b) a health service which affects, or is likely to affect, the clinical management or care of an individual client. (2) A complaint may be made against a health service provider. (3) A complaint may be made against a health service provider even though, at the time the complaint is made, the health service provider is not qualified or entitled to provide the health service concerned. 8 Who may make a complaint? (1) A complaint may be made by any person including, in particular, the following: the client concerned a parent or guardian of the client concerned a person chosen by the client concerned as his or her representative (including an Australian legal practitioner) for the purpose of making the complaint a health service provider a member of Parliament the Health Secretary the Minister. (2) The Commissioner may make a complaint under this Act, but only if it appears to the Commissioner that the matter that is the subject of the complaint: (a) raises a significant issue of public health or safety, or (b) raises a significant question regarding a health service that affects, or is likely to affect, the clinical management or care of an individual client, or (c) if substantiated, would: (i) provide grounds for disciplinary action against a health practitioner, or (ii) be found to involve gross negligence on the part of a health practitioner, or (iii) result in the health practitioner being found guilty of an offence under Division 1 or 3 of Part 7 of the Public Health Act 2010. (3) The provisions of this Part apply to the making of a complaint by the Commissioner, subject to any modifications prescribed by the regulations. 9 How is a complaint made? (1) A complaint is made by lodging the complaint in writing with the Commission. (2) The complaint is to include particulars of the allegations on which it is founded. (3) It is the duty of staff of the Commission to help a person to make a complaint if the person requests assistance to do so. Division 2 – Liaising with registration authorities and professional councils 10 Notifying professional councils of complaints (1) If a complaint made under this Act to the Commission is made against or directly involves a health practitioner who is or has been registered under the Health Practitioner Regulation National Law, the Commission must notify the appropriate professional council of the complaint. (2) The complaint is to be so notified as soon as practicable after it is made. 11 Complaints made to professional councils If, in accordance with the Health Practitioner Regulation National Law (NSW), a professional council notifies the Commission of a complaint made under that Law, the complaint is taken to have been made in accordance with this Act to the Commission. 1. Significantly, for the purpose of this submission, as at the date of issue of the first Notice of Complaint section 8 did not contain subsections (2) and (3). Those subsections were inserted by amendment made to the Act on 14 May 2013. 2. It was submitted on behalf of the respondent that a reading of section 8, confined to the provisions now contained within subsection (1) precluded any complaint being initiated by the HCCC. The HCCC's role was said to be confined to the receipt of complaints, the investigation of those complaints and the prosecution of complaints. To some extent such an approach is confirmed by the provisions of section 9(1) which refers to the lodging of a complaint in writing "with the Commission". 3. The submission of the applicant in rebuttal of the contention of the respondent relied substantially on the provisions of section 80 of the Health Care Complaints Act. It is in the following terms; 80 Functions of Commission (1) The Commission has the following functions: (a) to receive and deal under this Act with the following complaints: complaints relating to the professional conduct of health practitioners complaints concerning a health service that affects, or is likely to affect, the clinical management or care of individual clients complaints referred to it by a professional council under the Health Practitioner Regulation National Law (NSW), (b) to assess those complaints and, in appropriate cases, to investigate them, refer them for conciliation or deal with them under Division 9 of Part 2, (c) to make complaints concerning the professional conduct of health practitioners and to prosecute those complaints before the appropriate bodies, including professional councils, professional standards committees and tribunals, (d) to report on any action the Commission considers ought to be taken following the investigation of a complaint if the complaint is found to be justified in whole or part, (e) to monitor, identify and advise the Minister on trends in complaints, (f) to publish and distribute information concerning the means available for the making of complaints and the way in which complaints may be made and dealt with, (g) to provide information to health service providers and professional and educational bodies concerning complaints, including trends in complaints, (h) to consult with groups with an interest in the provision of health services, including professional associations, health service provider groups, relevant community organisations and private and institutional health care providers, on the complaints process and the dissemination of information concerning the complaints process, (i) to develop, after such consultation with clients, health service providers and persons who, in the Commission's opinion, have an appropriate interest, a code of practice to provide guidance on the way in which the Commission intends to carry out some or all of its functions. (j) (Repealed) (2) The Commission also has such other functions as are conferred or imposed on it by or under this or any other Act. (3) A code of practice developed by the Commission under subsection (1) (i) has no effect unless it is incorporated in, or adopted by, the regulations. (4) The Commission may exercise its functions even though: (a) the Commission has not developed a code of practice in relation to those functions, or (b) a code of practice has been developed but has not been incorporated in, or adopted by, the regulations. (5) Persons may be employed in the Public Service under the Government Sector Employment Act 2013 to enable the Commission to exercise its functions. Section 59 of the Government Sector Employment Act 2013 provides that the persons so employed (or whose services the Commission makes use of) may be referred to as officers or employees, or members of staff, of the Commission. Section 47A of the Constitution Act 1902 precludes the Commission from employing staff. 1. In particular, subsection (1)(c) specifically confers a function of making complaints upon the HCCC. It was submitted that to read the provisions of section 8 in such a way as contended for by the respondent would nullify the function of making complaints bestowed upon the HCCC under section 80 of the Act. This would be an incongruous result. 2. The second reading speech of the Minister for Health, and Minister for Medical Research on the Health Legislation Amendment Bill 2013 said the amendment was made: ...to make clear that a complaint can be made against a health service if the health service affects, or is likely to affect, the clinical management or care of an individual client…. This important amendment will mean that if a health service provider is acting in a way that is likely to affect the clinical management or care of a client, even if there is no identified client who has been affected, then the Health Care Complaints Commission will have jurisdiction to investigate a complaint against the health service provider." The second reading speech made it clear that the amendment was made in response to a decision of the Supreme Court of New South Wales which was to the effect that a complaint could only be investigated by the HCCC under the Health Care Complaints Act if the complaint concerned a particular individual patient. The intention of the amendment, therefore, was to allow complaints to be made and investigated in circumstances where a health service provider was acting in a way "that is likely to affect the clinical management or care of a client, even if there is no identified client who has been affected…… A consequential amendment was also made to section 80 to allow this to occur. 1. The second reading speech then referred to a report made in 2010 by a joint Parliamentary committee. That report: "recommended that the power of the Health Care Complaints Commission should be expanded to allow the commission to conduct "own motion" investigations so as to help safeguard the public. The Government has adopted this recommendation in the bill. The bill amends section 8 of the Act to allow the Commissioner of the Health Care Complaints Commission to make a complaint, and therefore investigate the matter, if it appears to the Commissioner that the subject of the complaint raises a significant issue of public health or safety, raises a significant question regarding a health service that affects, or is likely to affect, the clinical management or care of an individual client and, if substantiated, would be grounds for disciplinary action against a health practitioner or involves gross negligence on the part of the health practitioner. This important amendment will ensure that the Health Care Complaints Commission will be able to proactively initiate its own complaints in respect of serious matters affecting the health or safety of the public." 1. The tenor of the second reading speech would indicate that prior to the amendment being made, the HCCC did not, in the opinion of the Minister have the power to initiate a complaint of its own accord. 2. The factual basis upon which the respondent made this submission is erroneous. There is evidence before the Tribunal that not one of the complaints made with respect to any of the named patients referred to was initiated by the HCCC. For example, it is apparent that one of the patients, AC, wrote a letter of complaint on 7 January 2008 to the Medical Board of NSW complaining about her treatment by the respondent, as was conceded by counsel for the respondent. The complaints with respect to the other patients came to the attention of the Medical Board and the Medical Council as a result of patient audits, practice assessments and other enquiries, not one of which was initiated by the HCCC. As the preamble to the Notice of Complaint indicates, these matters were referred to this Tribunal by the HCCC after consultation with the Medical Council of NSW. Documentary information was tendered to support a submission made on behalf of the HCCC that this is what occurred. In any event, the doctrine of presumed regularity would throw the burden of demonstrating a failure to comply with the provisions of the legislation upon the respondent. No attempt has been made to discharge this burden. 3. The respondent then sought to argue that the Notice of Complaint itself constituted the complaint, and it had been initiated by the HCCC by referring the matter to this Tribunal. Such an argument mistakes the nature of the Notice of Complaint. It is, in effect, a form of initiating process. Instead of filing a document entitled a "summons", the proceedings have been initiated by the filing of this Notice of Complaint. It is not a complaint of a kind referred to in the legislation. All of this is made clear in the preamble to the Notice of Complaint. 4. If authority for such a proposition was needed, we refer to the judgment of Handley AJA in King v Health Care Complaints Commission [2011] NSWCA 353 (22 November 2011) where his Honour said, at [170] and [171]: 170. There was no explicit basis in statute or statutory instrument for treating the Notice of Complaint as a complaint, or the complaints referred. The Tribunal did not have a statutory duty to formulate charges. It was to "conduct an inquiry into any complaint" (s 159), as it thought fit (s 161(1)). Questions of procedure were to be decided by the presiding judge (s 154(1)). If it found "the subject-matter of a complaint ... proved" it could exercise its disciplinary powers. 171The Notice of Complaint was the Director's summary or distillation of the complaints, formulated as an aide memoire for the benefit of the appellant and the Tribunal, but the complaints referred were those made and signed by the patients. Those by B and D contain, as particulars in accordance with s 43(1), allegations that the appellant moved his finger(s) in and out of their vaginas. 1. This submission is misconceived. The Validity of These Proceedings Against the Respondent 1. The respondent also submitted that these proceedings had not been validly commenced under the National Law. In order to deal with this submission, we must first refer briefly to the second Notice of Complaint. 2. There are a number of separate complaints contained within this Notice. The first and second allege respectively unsatisfactory professional conduct and professional misconduct in connection with the treatment by the respondent of a number of named patients. The third and fourth complaints are based on allegations that the respondent is impaired within the meaning of the National Law. 3. As we have already set out, the delegates of the Medical Council of New South Wales, in a decision of 11 December 2012 expressed the opinion that the respondent was impaired as defined in section 5 of the National Law. They recommended that, pursuant to section 150F, the matter should be dealt with as a complaint and investigated with other matters already under investigation by the HCCC. The matters before the delegates of the Council arose out of a health notification made by Dr J Ellis (with which we are not directly concerned) and various supervisors' reports. By letter dated 7 September 2012, the Medical Council had informed the HCCC that a number of concerns would be investigated by it under section 150, as well as the adequacy of the then existing practice conditions operating on the registration of the respondent. It will be remembered that there had been an early referral by the Council to the HCCC as a complaint under section 152L following the failure of the respondent to voluntarily agree to additional practice conditions being imposed on his registration. This is a brief summary of the manner in which the two referrals of complaints from the Council came to the attention of the HCCC. 4. The respondent submitted that because the respondent had been found by the Council to have been impaired, there was some defect in the referral of the matters under investigation by the Council to the HCCC. 5. In order to deal with this submission, we need to refer to a number of provisions of the National Law which are as follows; 150 Suspension or conditions of registration to protect public [NSW] (1) A Council must, if at any time it is satisfied it is appropriate to do so for the protection of the health or safety of any person or persons (whether or not a particular person or persons) or if satisfied the action is otherwise in the public interest- (a) by order suspend a registered health practitioner's or student's registration; or (b) by order impose on a registered health practitioner's registration the conditions relating to the practitioner's practising the health profession the Council considers appropriate; or (c) by order impose on a student's registration the conditions the Council considers appropriate. (2) a suspension of a registered health practitioner's or student's registration under subsection (1) has effect until the first of the following happens- (a) the complaint about the practitioner or student is disposed of; (b) the suspension is ended by the Council. (3) If a Council for a health profession is satisfied a health practitioner or student registered in the profession has contravened a critical compliance order or condition, the Council must- (a) suspend the practitioner's or student's registration until a complaint concerning the matter is dealt with by the Tribunal; and (b) refer the matter to the Tribunal as a complaint. (4) A Council for a health profession may take action under this section- (a) whether or not a complaint has been made or referred to the Council about the practitioner or student; and (b) whether or not proceedings in respect of a complaint about the practitioner or student are before a Committee or the Tribunal. (5) Without limiting the conditions that may be imposed under subsection (1)(b), a Council may impose a condition requiring the registered health practitioner to undergo a performance assessment, but the condition has no effect unless the Commission agrees with the imposition of the condition. (6) A Council must give written notice of action taken under this section to the registered health practitioner or student concerned. (7) If a Council delegates any function of the Council under this section to a group of 2 or more persons, at least one of those persons must be a person who- (a) is not a registered health practitioner or student in the health profession for which the Council is established; and (b) has not at any time been registered as a health practitioner or student in that health profession under this Law or a corresponding prior Act. 150C Power to remove or alter conditions or end suspension [NSW] (1) A Council may, at any time- (a) end a period of suspension imposed by the Council under this Subdivision; or (b) alter or remove conditions imposed under this Subdivision. (2) A Council may, at any time after taking action under section 150 with respect to a registered health practitioner or student ( "the original action" ), take any other action it could have taken under that section at the time of taking the original action. (3) The Council must give written notice of the action it takes under this section to the registered health practitioner or student concerned. 150D Referral of matter to Commission [NSW] (1) A Council must, as soon as practicable but no later than 7 days after taking action under section 150, refer the matter to the Commission for investigation. (2) The Council may (despite any other Act or law) give to the Commission information obtained by the Council in connection with the exercise of functions under section 150 (including information, copies of documents or evidence obtained under section 150J and a copy of a recording made under section 150B) in respect of the matter. (3) The matter must be dealt with by the Commission as a complaint made to the Commission against the registered health practitioner or student concerned. (4) The Commission must investigate the complaint or cause it to be investigated and, as soon as practicable after it has completed its investigation and if it considers it appropriate to do so, refer the complaint to the Tribunal or a Committee for the health profession in which the health practitioner or student is registered. Note : See section 145D which provides that both Council and the Commission have a duty to refer a complaint to the Tribunal if, at any time, either of them is of the opinion that the complaint, if substantiated, would provide grounds for the suspension or cancellation of the registered health practitioner's or student's registration. (4A) Despite subsections (3) and (4), the Commission is not required to investigate the complaint or cause it to be investigated if the matter that is the subject of the complaint is being, or has been, investigated as, or as part of, another complaint to the Commission. (5) This section does not apply if a Council takes action against a registered health practitioner or student under section 150- (a) because, in the Council's opinion, the practitioner or student has an impairment; or (b) that is action of a kind referred to in section 150(5). 150E Special provision-performance assessment [NSW] (1) If the Commission agrees with the proposed imposition by a Council under section 150 of a condition on a registered health practitioner's registration requiring the practitioner to take part in a performance assessment, the matter giving rise to the proposal- (a) must be dealt with by way of a performance assessment; and (b) may, if the Council and the Commission agree, also be dealt with by the Commission as a complaint against the practitioner. (2) If the Commission does not agree with the imposition of the condition, the matter must be dealt with by the Commission as a complaint against the registered health practitioner. (3) The Council may (despite any other Act or law) provide to the Commission any information obtained by the Council in connection with the exercise of functions under section 150 (including any information, copies of documents or evidence obtained under section 150J and a copy of any recording made under section 150B) in respect of the matter. (4) If a matter is to be dealt with under this section by way of a performance assessment, it may be so dealt with despite anything to the contrary in section 154A. (5) If the matter is to be dealt with as a complaint, the Council must refer the matter to the Commission and the matter must be dealt with by the Commission as a complaint made to the Commission against the practitioner concerned. (6) The Commission must investigate the complaint or cause it to be investigated and, as soon as practicable after the investigation is completed, refer the complaint to a Committee for the health profession or the Tribunal. Note : See section 145D which provides that both Council and the Commission have a duty to refer a complaint to the Tribunal if, at any time, either of them is of the opinion the complaint, if substantiated, would provide grounds for the suspension or cancellation of the health practitioner's registration. 150F Special provisions-impairment [NSW] (1) This section applies if a Council takes action against a registered health practitioner or student under section 150 because, in the Council's opinion, the practitioner or student has an impairment. (2) The Council must, as soon as practicable after taking that action and, in any event, within 7 days after taking that action, notify the Commission that it has taken that action. (3) The Council must consult with the Commission to see if agreement can be reached as to whether the matter should be- (a) dealt with as a complaint against the registered health practitioner or student; or (b) referred to an Impaired Registrants Panel. (4) The matter is to be dealt with as a complaint against the registered health practitioner or student only if, following the consultation- (a) the Council and the Commission agree it should be dealt with as a complaint; or (b) either the Council or the Commission is of the opinion the matter should be dealt with as a complaint. (5) If the matter is to be dealt with as a complaint, the Council must refer the matter to the Commission and the matter must be dealt with by the Commission as a complaint made to the Commission against the registered health practitioner or student. (6) The Commission must investigate the complaint or cause it to be investigated and, as soon as practicable after the investigation is completed, consult with the Council about how the matter is to be dealt with, including, for example, by referring the complaint to the Tribunal or a Committee for the health profession in which the health practitioner or student is registered. Note : See section 145D which provides that both Council and the Commission have a duty to refer a complaint to the Tribunal if, at any time, either of them is of the opinion the complaint, if substantiated, would provide grounds for the suspension or cancellation of the health practitioner's or student's registration. (7) If the matter is not to be dealt with as a complaint, the Council must refer the matter to an Impaired Registrants Panel. 1. It was argued on behalf of the respondent that the provisions of section 150D(5) precluded the bringing of these proceedings. This was because the respondent had been found to be impaired, there could be no referral to the HCCC by reason of these provisions, and this precluded referral to the Tribunal. In response, the HCCC pointed out that even though section 150D(5) applied, it was nevertheless competent for a referral to be made under section 150F, and this is what occurred. Section 150 provides an opportunity of dealing with the matter as a complaint or referring the medical practitioner to an Impaired Registrants Panel. The processing of these notices of complaint after the finding made by the delegates of the Council has occurred in accordance with and is consistent with the provisions of section 150F. No invalidity or incompetency attaches accordingly and this aspect of the submissions of the respondent must fail. 2. The provisions of section 150F require consultation between the Council and the HCCC. There was some limited documentary material available to us covering communications between these two organisations concerning the respondent. Whilst it was submitted on behalf of the respondent that the HCCC had not proven that consultation had taken place, we reject such a submission in the context of all the circumstances surrounding these proceedings. The challenge was predominantly made during the course of submissions, it was never raised by the respondent as an issue in the proceedings prior to the hearing commencing, approximately 5000 pages of documentation became exhibits in the proceedings, and the proceedings themselves have been attended by a number of complexities, some of which are reflected in these lengthy reasons. In all the circumstances we prefer to approach this aspect of the matter on the basis of a presumption of regularity, with the burden of establishing a failure of consultation and other mechanical matters falling on the respondent, or at least the respondent drawing the attention of the Tribunal to some matter which might arguably point to some defect or deficiency. There is no hint of any such defect or deficiency raised before us. 3. We note for completeness that the other matters which were the subject of a referral by the Council came to the HCCC, because the Council was compelled to deal with the matter as a complaint by reason of the provisions of section 152L(2). 4. There was a discussion during the course of submissions about the consistency of the imposition of practice conditions on the registration of the respondent with the prosecution of these proceedings. It was suggested on behalf of the respondent that in some way he had been hounded and persecuted by the relevant medical authorities during the course of his practice as a medical practitioner. Reliance was placed on the large number of proceedings before various entities and bodies to which the respondent was subjected over the years. He has had performance assessments, practice audits, enquiries under section 66 of the former legislation and section 150 of the National Law, and has been subjected to practice conditions imposed on his registration of varying degrees of severity. Whilst, naturally, no argument of double jeopardy was raised, it was suggested that it was inequitable that the respondent should be subjected to these proceedings and to be required to give evidence yet again about his conduct as a medical practitioner. 5. Whilst this bare narration of the long and involved experience of the respondent with the relevant entities and authorities may draw some prima facie sympathy for the respondent, what has occurred to the respondent needs to be understood in the context of the totality of the structure created by the National Law to deal with the practice of medicine in New South Wales. It is not necessary that we refer to the provisions of this legislation in any detail. We observe that part 8 of the Act deals with the competency to practice medicine and mandatory notifications concerning certain matters. There are definitions of unsatisfactory professional conduct and professional misconduct. Division 3 of Part 8 deals with how complaints about medical practitioners are made and processed. Complaints can be dealt with through a number of processes including referral to Professional Standards Committees, Assessment Committees, meetings of the Medical Council and referral to this Tribunal. There are specific provisions dealing with Performance Assessment and Performance Review Panels. There are also specific provisions dealing with medical practitioners who are found to have an impairment. The respondent has been the subject of a number of these processes, and in the main adverse findings have been made against him and practice conditions imposed upon his registration at various levels. 6. Having read much of the material which refers to these processes we are unable to conclude that there is any justification for a submission that the respondent has in some way been inappropriately hounded or persecuted by the authorities. What has occurred has been part of a structured legislative process designed for the protection of the public and the profession, whilst affording medical practitioners an opportunity of defending themselves against unjustified complaints, and correcting any inadequacies. We reject this submission. The Standard of Proof 1. Before considering in detail the material contained in the two notices of complaint, and the evidence in the proceedings, we should first observe that in determining whether and to what extent any of the complaints are made out we will need to be comfortably satisfied on the balance of probabilities that the complaints have been proven. These principles have been established at appellate level, their application to the proceedings of this Tribunal are well-known, and it is not necessary that we expand upon them further. Some Definitions and Statutory Provisions 1. As will be seen, the notices of complaint contained allegations of unsatisfactory professional conduct and professional misconduct on the part of the respondent. There is also an allegation that the respondent lacks competence in and suffers from an impairment. A consideration of some of these matters will be governed by certain provisions of the National Law, which we now set out; 2. Section 5 defines impairment as: "impairment" , in relation to a person, means the person has a physical or mental impairment, disability, condition or disorder (including substance abuse or dependence) that detrimentally affects or is likely to detrimentally affect- (a) for a registered health practitioner or an applicant for registration in a health profession, the person's capacity to practise the profession; or (b) for a student, the student's capacity to undertake clinical training- (i) as part of the approved program of study in which the student is enrolled; or (ii) arranged by an education provider. 1. Within section 138 there is a definition of overservicing as follows; "overservicing" , by a registered health practitioner, means the practitioner, in the course of practising the practitioner's profession- (a) provides a service in circumstances in which provision of the service is unnecessary, not reasonably required or excessive; or (b) engages in conduct prescribed by the NSW regulations as constituting overservicing. 1. Other relevant provisions of the National Law are; 139 Competence to practise health profession [NSW] A person is "competent" to practise a health profession only if the person- (a) has sufficient physical capacity, mental capacity, knowledge and skill to practise the profession; and (b) has sufficient communication skills for the practice of the profession, including an adequate command of the English language. 139B Meaning of "unsatisfactory professional conduct" of registered health practitioner generally [NSW] (1) "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. (b) A contravention by the practitioner (whether by act or omission) of a provision of this Law, or the regulations under this Law or under the NSW regulations, whether or not the practitioner has been prosecuted for or convicted of an offence in respect of the contravention. (c) A contravention by the practitioner (whether by act or omission) of- (i) a condition to which the practitioner's registration is subject; or (ii) an undertaking given to a National Board. (d) A contravention by the practitioner (whether by act or omission) of a decision or order made by a Committee or the Tribunal in relation to the practitioner. (e) A contravention by the practitioner of section 34A(4) of the Health Care Complaints Act 1993 . (f) Accepting from a health service provider (or from another person on behalf of the health service provider) a benefit as inducement, consideration or reward for- (i) referring another person to the health service provider; or (ii) recommending another person use any health service provided by the health service provider or consult with the health service provider in relation to a health matter. (g) Accepting from a person who supplies a health product (or from another person on behalf of the supplier) a benefit as inducement, consideration or reward for recommending that another person use the health product, but does not include accepting a benefit that consists of ordinary retail conduct. (h) Offering or giving a person a benefit as inducement, consideration or reward for the person- (i) referring another person to the registered health practitioner; or (ii) recommending to another person that the person use a health service provided by the practitioner or consult the practitioner in relation to a health matter. (i) Referring a person to, or recommending that a person use or consult- (i) another health service provider; or (ii) a health service; or (iii) a health product; if the practitioner has a pecuniary interest in giving that referral or recommendation, unless the practitioner discloses the nature of the interest to the person before or at the time of giving the referral or recommendation. (j) Engaging in overservicing. (k) Permitting an assistant employed by the practitioner (in connection with the practitioner's professional practice) who is not a registered health practitioner to attend, treat or perform operations on patients in respect of matters requiring professional discretion or skill. (l) Any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession. (2) For the purposes of subsection (1)(i), a registered health practitioner has a "pecuniary interest" in giving a referral or recommendation- (a) if the health service provider, or the supplier of the health product, to which the referral or recommendation relates is a public company and the practitioner holds 5% or more of the issued share capital of the company; or (b) if the health service provider, or the supplier of the health product, to which the referral or recommendation relates is a private company and the practitioner has any interest in the company; or (c) if the health service provider, or the supplier of the health product, to whom the referral or recommendation relates is a natural person who is a partner of the practitioner; or (d) in any circumstances prescribed by the NSW regulations. (3) For avoidance of doubt, a reference in this section to a referral or recommendation that is given to a person includes a referral or recommendation that is given to more than one person or to persons of a particular class. (4) In this section- "benefit" means money, property or anything else of value. "recommend" a health product includes supply or prescribe the health product. "supply" includes sell. 1. The provisions of this definition were considered by Basten JA in Lucire v HCCC (Ibid). At [78] and following his Honour pointed out in relation to the legislation which preceded the National Law that the equivalent provisions have a number of subcategories. His Honour said; "although the phrase is said to "include" each of those different categories, there is no reason to suppose that other forms of conduct, not falling within any of those categories, may also constitute unsatisfactory professional conduct, particularly as the final category is open-ended, referring to any other "improper or unethical conduct relating to the practice or purported practice of medicine." In the context of the National Law, His Honour's remarks are relevant to section 139B(1)(l). 139E Meaning of "professional misconduct" [NSW] 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. 1. As is obvious, the determination of whether unsatisfactory professional conduct constitutes professional misconduct under this section will involve the exercise of a value judgement reflecting appropriate legislative, common law and community standards about any conduct found to have been proven and the circumstances in which that conduct has occurred. 2. We also bear in mind that "disciplinary proceedings against members of a profession are intended to maintain proper ethical and professional standards, primarily for the protection of the public, but also for the protection of the profession."(per Gleeson CJ, Meagher and Handley JJA in Health Care Complaints Commission v Litchfield [1997] NSWSC 297) 3. We should state for completeness that we recognise that the mere fact that professional misconduct may be found to have been proven against the respondent does not necessarily determine that his registration should be suspended or cancelled. These are matters which we shall take into account in considering stage 2 of the proceedings. 139F References to "complaint" [NSW] In Subdivisions 1-6 of Division 3 and in Subdivisions 1 and 2 of Division 6, a reference to a complaint includes a reference to a matter arising out of the investigation of a complaint in accordance with this Law or another Act. 1. Provisions contained within sections 149, 149A, 149B and 149C deal with the powers of this Tribunal to make certain orders upon finding that a complaint has been proven. We are currently not concerned with these provisions, which will become relevant only for the stage 2 hearing. The First Notice of Complaint 1. The first notice of complaint, in matter number 1420086 was made on 8 May 2013, amended on 14 February 2014 and further amended 17 September 2014. Relevantly, we note that it commenced in the following form (Further Amended) NOTICE OF COMPLAINT TAKE NOTICE THAT the Medical Tribunal of New South Wales has received a complaint from the Health Care Complaints Commission following consultation with the Medical Council of New South Wales in accordance with sections 39(2) and 90B(3) of the Health Care Complaints Act 1993 and section 145A of the Health Practitioner Regulation National Law("the National Law"); THAT Dr Michael Quach of 75 Camden St, Newtown NSW 2042 ("the practitioner'), being a medical practitioner registered under the National Law: COMPLAINT ONE Is guilty of unsatisfactory professional conduct under section 139B of the National Law in that the practitioner has: (i) engaged in conduct that demonstrates that the knowledge or judgement possessed, or care exercised, by the practitioner in the practice of medicine is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience; (ii) contravened the Health Practitioner Regulation (New South Wales) Regulation 2010, (iii) Engaged in improper or unethical conduct relating to the practice or purported practice of medicine. Background The practitioner first treated Patient AS at the Sebel Pier One Hotel on the 11 August 2008 and continued to treat Patient AS between that date and 25 July 2011. During that time Patient AS was a permanent resident of (omitted) but would frequent Sydney on a regular basis for medical treatment. Patient AS has a complex medical history, including but not limited to, spina bifida, VP shunt, Harrington rods, recurrent urinary and pelvic infections, urinary and faecal continence and lymphoedema with secondary infected ulcers. PARTICULARS OF COMPLAINT ONE 1. The practitioner charged Patient AS improper and/or inconsistent consulting fees for each consultation had between 30 September 2008 and 25 July 2011 inclusive. 2. The practitioner failed to comply with the requirements of the Health Practitioner Regulation (New South Wales) Regulation 2010 Part 2 clause 7 and Schedule 2 in that he failed to keep any clinical records for Patient AS for consultations during the period 26 May 2011 to 25 July 2011 inclusive. 3. During Patient AS's admission at Holroyd Private Hospital between 30 June 2011 and 25 July 2011, the practitioner, on more than one occasion, had a consultation with Patient AS without a sound clinical basis to warrant such consultation. 4. The practitioner inappropriately and without consent audio recorded or threatened to audio record, consultations between the practitioner and Patient AS in 2011. 5. The practitioner failed to maintain appropriate professional boundaries in his treatment of Patient AS demonstrated by the following conduct: i) engaging in conversations with Patient AS regrading her attire on 6 December 2008; 9 December 2008 and 16 April 2009; ii) advising Patient AS on 28 September 2010 and 16 October 2010 how to behave and what to say when dealing with her treating team of specialist Drs. iii) engaging in argumentative conversations with Patient AS during her admission at the Metro Rehab Hospital between 9 June 2011 and 29 June 2011 and during Patient AS admission at Holroyd Private Hospital between 30 June 2011 and 25 July; iv) failing to appropriately respond to Patient AS's concerns about whether her conduct impacted on the feelings of the practitioner recorded in an email sent by Patient AS on 27 September 2009. 1. AS gave oral evidence and a written statement made by her was also admitted into evidence. In addition, the Tribunal had available to it extensive clinical notes recorded by the respondent concerning this patient, records relating to her hospitalisation at three other facilities, and a number of other documents to which reference will be made where applicable during the course of these reasons. The respondent declined to give oral evidence in the proceedings, but statements which he made for the purpose of the proceedings were admitted into evidence. Furthermore, the Tribunal received expert opinion evidence from Dr Simon John Whitfield Young and from Dr R.G. Beran. The narration which follows is based on this evidence. 2. This patient first consulted the respondent on 11 August 2008. He continued to treat her until 25 July 2011. With respect to this patient it is alleged that he charged "improper and/or inconsistent consulting fees", that between 30 June 2011 and 25 July 2011, on more than one occasion he consulted with her without a sound clinical basis to warrant that consultation at the time that she was a patient in a private hospital, that he inappropriately and without consent made an audio recording or threatened to do so during consultations, that he failed to maintain appropriate professional boundaries in his treatment of her by engaging in conversations regarding her attire and by coaching her how to behave and what to say when dealing with her treating specialist doctors, in engaging in argumentative conversations with her on a number of occasions, and in failing to appropriately respond to her concerns about whether her conduct impacted on his feelings. 3. This patient lives out of New South Wales, and has a number of complicated medical conditions. She was born with spina bifida and has a shunt. She was unhappy with the treatment being received from her local treating medical practitioners for a number of conditions, including lack of sensation in her legs, no sense of smell, and problems with her bladder and bowels. At the time that she first came to Sydney and met the respondent she needed re-bandaging of compression bandages which, under medical advice, had been applied to both legs. She arranged for this to be done by a doctor recommended by the hotel where she was staying, and this is how she came under the care of the respondent. 4. She said that when the respondent first saw her at the hotel he told her that a horrible smell was coming from her legs which he described as "gangrenous". He removed the pressure bandages and massaged her legs and checked her heart as well as arranging for blood tests. The respondent gave her intravenous rehydration and intravenous antibiotics every 6 hours for 6 to 10 days. 5. AS paid the respondent with her credit card having filled in a form. At some stage later she realised that she had sometimes been charged twice on the one day. When questioned, the respondent told her that he was making a charge for the time taken to write letters to her local treating doctors. Later, when this patient moved to a private hospital she found that the respondent was charging her about $5000 per week for three weekly visits, including his travel time. 6. The respondent became closely involved with this patient in giving her advice about the eventual partial amputation of her legs, and treatment for continuing problems with her bowels, bladder and vaginal area. He referred her to a number of specialists, and became involved with her in decisions about what form of treatment she should have. 7. Significantly, in her statement AS said that the respondent: …didn't ever send me to a psychologist or counsellor because he said he was my counsellor and my friend and my doctor and my director of surgery. He did a care plan and he used to look after all my needs. He would usually stay between one and two hours when I saw him. 1. At one stage the respondent arranged for AS to attend a rehabilitation facility in Sydney to lose weight and to gain fitness. The respondent visited her there and discussed with her the treatment that she was undertaking and was being offered. There was a continuing discussion about whether she should have an operation to close her vagina. Even though she said that she wanted to have this operation, she said the respondent insisted that she not have it to leave open her ability to have a sexual relationship. She said that she told him that in view of her age, and because she had had some relationships, she wanted to proceed with the operation. The discussions often ended in arguments. 2. AS was an inpatient for some time at Holroyd Private Hospital. In her statement AS said that the respondent used to visit her there about three times a week and he would stay for up to 2 hours. She said he would charge $1600 to travel from his practice in Sydney and to stay for two hours "yelling at me every time". She said there were arguments about whether she should have surgery to seal her vagina. Arrangements were made for staff to be present in her room whenever the respondent visited her. She said that she was so upset by what the respondent had been saying to her that she talked about it with staff at the private hospital and with her treating doctors there. She said that she ended up being assessed by a psychiatrist at the request of a treating doctor who thought that she was "delusional in relation to Dr Quach." 3. AS related an incident where she had a fallen in a hotel room and was lying on the floor when the respondent arrived. She alleged that he refused to help her get up and made her crawl across the floor and use an ironing board which he set up to regain a sitting position. 4. The patient said that she had completely trusted the respondent when "I first consulted him. Over time his behaviour towards me became disturbing. I can remember looking into his eyes and seeing a look I can only describe as being one of evil… His face changed from nice to evil. I was heartbroken." 5. On the last occasion she saw him, on 25 July 2011 at a radiology practice, AS told the respondent that "it's over", referring to her relationship with him. He said "I'll have to record that and he produced a tape recorder." She said she had never spoken to him again. 6. In her statement AS said "in March 2011 Dr Quach asked me to write a letter to his solicitor saying he had never made me undergo any procedure that I didn't want to. At another time, a few years ago, he asked me whether I had ever told anybody about how much he charged me for consultations. When I told him "No" (even though I had told my cousins), he said "There is God"". 7. In oral evidence AS denied ever having behaved in a flirtatious manner with the respondent, and denied ever telling him that she was not wearing underwear. She said that on one occasion he visited her, the chair was wet because her bowels had evacuated. 8. In oral evidence AS was taken to a form which the respondent alleged she had signed dealing with quality assurance and other matters concerning his practice. She had no recollection of having signed that form. Nor did she have any recollection of giving written consent for the respondent to record conversations he had with her. 9. The patient was taken to a letter which the respondent had written to the HCCC, on 1 May 2012 in which he alleged that she would have been grossly disappointed if the surgery had gone ahead. She vehemently disagreed with the statement, denying that she wanted to preserve her womanhood as asserted by the respondent. 10. The patient was taken to a note which she had handwritten. It was addressed to Professor Solomon and stated that she wanted to defer an operation on 8 August to "discuss other options as I would like very much to have a relationship in the future….." She said that she had written this at the request of the respondent. She wrote this to stop any more arguments with him. 11. In his notes of 23 June 2011, the respondent noted that he had written to Dr Cooper referring to the preservation of her self-esteem and the fact that she would feel "castrated" if her vagina had been closed up. The patient denied this. In fact, she said that her bowels opened every time she had previously been intimate with anyone and therefore she did not care if she had the surgery and she wanted to stop the infections which she had been told would kill her. 12. When taken to comments that the respondent had made to her about smartening up her dress sense, she said that this was after she had come back from rehabilitation and that the respondent was trying to get her confidence back. 13. AS did not remember signing a fee agreement with the respondent. She does recall him saying that he would charge for distance and time travelled and that his fees had gone up. She had never demanded that he treat her as frequently as he did. 14. In cross-examination AS said that the respondent was the best doctor she had had over the three-year period. She had had open communications with him and respected him. She had never made a complaint about him and did not want to make any complaint, but had been approached by the HCCC. In fact, she had undergone a long and complex successful operation and her vagina had not been closed up. As it turned out, the respondent's prognosis was correct. 15. There was tendered into evidence a series of texts consisting of messages from this patient expressing, inter alia, gratitude at the care provided by the respondent. 16. In his written statement which concerns patient AS, the respondent denied that he had overcharged her. He said that he was not bound by the schedule of fees published by the AMA. 17. The respondent said that at the time of the first consultation with this patient, in August 2008, he charged her $152 which was the AMA fee for a level C consultation. Later when he was asked by her to continue to attend her hotel for consultations he charged her $280 for a call out charge within business hours and $380 per callout charge after hours. Subsequently, he said that AS demanded to be treated by him in Sydney and stayed in hotels for this purpose. Thenceforth he charged her his hourly charge for "private patients" which he said was $480 during business hours and $580 after hours. Furthermore, when he was asked to consult with her whilst she was admitted as a patient to Holroyd Private Hospital, which is in Guildford, he told her in advance that it would take him at least two hours to travel each way and that he would charge her $800 per hour. He said in his statement that she agreed to this and that she agreed to the payment of all his fees prior to him providing any service. 18. Significantly, the respondent said in his statement that; "It was my practice to obtain from the Patient a signed costs agreement before each consultation is charged." 19. The respondent denied that there was no sound clinical basis for consulting with this patient between 30 June and 25 July 2011. He said that that basis could be seen from his clinical records. 20. In terms of audio recording, the respondent said that he commenced doing so with this patient as from 29 June 2009 because; "I wanted to monitor quality control by consultations. I also have asked the Patient's consent to record all consultations before doing so." He annexed to his statement a form under the heading of his practice name, "Bennelong – first care" which was entitled "check-in for new patients." That form refers to "video recording of the consultation and treatment processes" as an aide to improve the respondent's medical service. It also refers to a "Patient – doctor agreement" in the following terms "By providing consent for treatment and financial consent, you would listen to the advice given and agreed to the charges payable." There is also a general reference to direct billing, but in terms which are irrelevant in determining these proceedings. 21. We have earlier made reference to the evidence of AS to comments made by the respondent about her attire. In his statement the respondent said that he had done so "in the context of managing the significant psychosocial difficulties of the Patient". In the same way any comments which he had made to AS about what she should say to her treating specialist and others were made "to ensure that she appropriately addressed the correct issues to the team I had organised." 22. For completeness, we note that the respondent denied having engaged in any argumentation with AS as alleged. He said the conversations may have been animated, but that he was not arguing. 23. The dealings between the respondent and AS are set out in a number of documents. Firstly there is in evidence before us the clinical notes of the respondent relating to his dealings with this patient. Secondly there are records provided by Medicare of claims made by AS for Medicare rebates concerning the cost of treatment afforded to her by the respondent. Thirdly there are details of payments made by AS to the respondent as disclosed in her MasterCard credit card records, at least for some of the period during which she was treated by him. A schedule of the fees charged by the respondent for each consultation prepared by the solicitor for the HCCC was admitted into evidence, and assisted in the compilation of the material which follows. With these documents in mind, we are able to set out a narrative of the treatment and other dealings between the respondent and AS, and the fees charged by the respondent. 24. The summary does not record every notation contained in the clinical notes of the respondent. There are a number of occasions on which a "surgical consultation" is recorded which relate to telephone conversations or SMS communications with the patient, or communications between the respondent and other treating medical practitioners, for which no charge is made. Accordingly, the narration which follows is not intended to be complete, but is intended to reflect all of the occasions on which the respondent personally attended on AS, and other consultations where a charge was made, either to her personally or to Medicare. 25. We note that in many cases there is no apparent correlation between the services rendered by the respondent to AS and the item number shown in the Medicare documentation which was lodged by AS in order to secure a rebate. No complaint is made in these proceedings about the nature and extent of charges made to Medicare by reference to item numbers as raised, presumably, by the respondent. We shall not take any of these matters into account in determining these proceedings. However, having noted them, we do not wish to be concerned in any way, whether directly or indirectly in condoning or ignoring possible breaches of the relevant Medicare legislation. To this end, we shall direct the Registrar to forward a copy of these reasons for decision to Medicare to carry out such investigations as it may deem appropriate. 11 August 2008 1. The respondent saw AS at her hotel room at 10:15 am. He advised her that he would charge her AMA rates, which were less than his usual charges. He said that at level D these were $210 and C, $152. In all, the respondent saw her three times that day. He removed her compression bandages, administered intravenous antibiotics and applied silvazine to her leg ulcers and bandages. He referred her for pathology. In all, the patient paid $210 that day. 12 August 2008 1. The consultation in her hotel room commenced at 10:15 am. He administered intravenous antibiotics. He said that he would charge at AMA level D. At that level the charge was $220. He in fact charged $310 for the visit. A further charge was made on the patient's credit card that day for $280. 13 August 2008 1. The respondent again administered intravenous antibiotics in the hotel room and dressed ulcers on her legs. On this occasion he charged $220. 14 August 2008 1. The respondent discussed intravenous antibiotics and said that she would need these 4 times that day. He discussed the administration of these antibiotics in hospital but the patient told him she did not want to go to hospital. The patient provided a consent to treatment and financial consent. The clinical notes indicate that she signed a form. No such form was provided from the clinical records of the respondent. The clinical notes recorded a second round of antibiotics between 5 pm and 6 pm, a third round between 11 pm and 12 am and a fourth round between 5 am and 6 am the next day. Because this patient was known to have increased bowel movements with antibiotics she was prescribed flagyl. She was charged $277 that day. 15 August 2008 1. There was a hotel visit at 12 am. The wound was redressed. There were further visits at 6 am, and 11:30 am. The patient was charged a total of $688 that day. 16 August 2008 1. There is a record of a hotel visit, but no record of any payment made. 17 August 2008 1. There was a hotel visit at 1 pm. There is a note of the patient being "stuck on shower bench" because her legs were too heavy, she was unable to get on the wheelchair and the wheelchair slipped. The respondent assisted her back onto the wheelchair. Her ulcers were re-dressed. She gave a credit card debit authority "for the last two consultations". There was a charge of $525. 18 August 2008 1. There is a record of a hotel visit, but no record of any charge. 19 August 2008 1. There is a record of two hotel visits this day. There is a charge of $304. 20 August 2008 1. There is a hotel visit. A wound was redressed, a specimen was taken for pathology and arrangements were made for different antibiotics to be made available. There is a charge of $152. 21 August 2008 1. There was a hotel visit at 11:30 am. There is no record of any charge. 22 August 2008 1. There is a record of a consultation but no record of any charge. 23 August 2008 1. There was a hotel visit at 11 am with a discussion about the use of more antibiotics. Intravenous antibiotics given over 20 – 30 minutes. There is a charge of $407. 24 August 2008 1. Hotel visit 12:30 pm. Respondent administered intravenous fluids for one hour and 20 minutes to counter dehydration caused by diarrhoea. There was a charge of $480. 2. AS then returned home. Whilst there she was hospitalised. The clinical notes record a series of telephone conversations with the respondent concerning her condition and treatment by local doctors. Arrangements were made for the respondent to give her "a second opinion" and to refer her to specialists in Sydney. There is a note of a proposed hotel visit at 7 pm on 13 September 2008, but no charge created. 14 September 2008 1. Although the clinical notes are not clear, it is possible that there was a hotel visit. A charge of $300 was made. 15 and 16 September 2008 1. There is a note that the patient was seen. No charge was made. 17 September 2008 1. A hotel visit. The patient is advised that the respondent has been discounting his fees and there is a note that she is prepared to pay "usual practice fees – standard hotel visit $280, extended consultations at $280 per hour." A charge of $486 is made. 30 September 2008 1. There is a discussion of a proposed partial amputation of both lower legs, and what preparation is needed for surgery. A charge of $537 is made. 1 October 2008 1. There is a hotel visit at 10 am for 30 minutes duration. A charge of $520 is made. 2 October 2008 1. There is no record of any visit, but a charge of $375 is made. 3 October 2008 1. During the course of a hotel visit the respondent has a "long discussion" with the patient's cousin about a number of matters including her forthcoming surgery. There is a charge of $490. 4 October 2008 1. There is a hotel visit between 1 pm and 1:30 pm for which the patient was charged for 25 minutes. There is a note that the respondent obtained consent "for usual after hours surcharge of $100". This visit took place on a Saturday. There is a charge of $495. 5 October 2008 1. A hotel visit commences at 11 am. The patient has complained of shortness of breath. The consultation ended at 12 pm when the spirometer information did not download. The respondent returned between 2 pm until 3 pm. There was a total charge of $1040. 6 October 2008 1. A hotel visit commences at 9:30 am for one hour. The respondent supplied a new tube of silvazine. There is a charge of $690. 7 October 2008 1. A hotel visit commenced at 10:40 am. The patient was distressed because the hotel had complained about the smell in her room caused by problems with her bowels. The respondent left the hotel at 11:40 am. He then made representations to the hotel, and arranged alternative accommodation. She was charged $591.30. 8 October 2008 1. There was a hotel visit at 12 pm and later at 3:30 pm. There is a note that the patient "gave financial consent to be charged 45 minutes." No charge is made that day, but there is a note that the respondent will prepare accounts. 9 October 2008 1. There is a note of a hotel visit. There is a charge of $865 made that day. After this time, it appears that the patient returned home to prepare for hospital admission on 27 October for surgery. There are notes of involvement of the respondent in the preparation of a management plan for her and a further note of postponement of the surgery to 7 November. 27 October 2008 1. There is a note of a hotel visit and a charge of $375. 28 October 2008 1. During a hotel visit the respondent took swabs for a pre-admission report. There is a charge of $420. 6 November 2008 1. There is a note of a visit. The patient is charged $660. 5 December 2008. 1. AS was discharged from rehabilitation following amputations. For a hotel visit at 7 pm, the following notes are recorded; "I advised…. That there is no medical need to see her on a daily basis as she does not have to have daily dressings. However, as I have not held back in my advice and service further I would be happy to see her on a day-to-day basis to medical and assess other things like – lung function, BP, functional assessment – if that what she wishes…… Was keen to be seen daily, she wanted to have her lung function assessed, functional assessment and cholesterol blood tests. I told….. That she is now very (sic) and she look forward to building confidence in the community. Now that she is no longer dogged by infections and compression bandaging, people would not see her as an invalid or sick person." There is no record of any charge that day. 6 December 2008 1. There is a hotel visit. The respondent's clinical notes reveal that the patient said that she had some difficulties with her credit card limit and she was unable to access funds in her bank account. AS indicated that she was unable to get back onto her wheelchair. The respondent's notes indicate that he had to call for help from the hotel staff and that he gave her a panel of wood as a sliding board. The notes indicate that the respondent discussed with the patient the need to her to "build on the good work that she has achieved so far. She will need to smarten up her dress sense…. Hide the things that make her look ill – such as the cather bag." There is a note that he asked her to wear trousers. He also noted "patient will need to have social training – esp for dress sense – improve self-esteem." On this occasion she was charged $660. It is possible that some of this charge relates to the consultation on the previous day. 7 December 2008 1. There is a note of a hotel visit. Previously he had spoken to her by telephone when she indicated that she was short of money. He arranged to cash a cheque for her for $100. The notes indicate "I gave her the receipts to claim back from Medicare in the morning. She can pay $1000 to her credit card debts." A financial consent was obtained for a 20 minute hotel visit and they note that she would settle the account tomorrow during a visit in the afternoon. No charges were recorded that day. 8 December 2008 1. There is a note that the patient has been to Medicare, has $400 in cash and more than $1000 has been paid into her bank account. The consultation ended early. 9 December 2008 1. The respondent arranged for pathology to be carried out. He advised her to go shopping for new clothes. 11 December 2008 1. There is a note of a hotel visit, and the patient having spent $524 on clothes. The respondent purchased certain medicines for her. There was a charge of $1851 that day, which may have included charges for 7, 8 and 9 December for which no charge was recorded. 16 December 2008 1. There is a note of a hotel visit starting at 8 pm. No charges recorded. 17 December 2008 1. There is a hotel visit at 12:55 pm ending at 1:40 pm. There is a note that "patient is well." There was discussion concerning a plan and that the respondent was "treating and counselling her for a mood disorder – not depression." Patient signed the authority for her care plan. There was a charge of $960 that day. 18 December 2008 1. There are no clinical notes for any consultation that day but a charge of $715 was made. 21 December 2008 1. There was a hotel visit of 40 minutes. There was a discussion "about how she should develop a personality that is delightful to be around – rather than "happy go lucky…." There was a charge of $565. 22 December 2008 1. There are no notes about what occurred this day but a charge of $85 was made. 27 February 2009 1. There is a hotel visit from 4:35 pm to 5:30 pm. The opening note is "patient is well." There is a discussion concerning her "new lifestyle". The respondent examined her lower abdomen area and gave treatment for a skin condition. There was a discussion about her "financial circumstances", that she was not in a relationship at the moment and that she would like to get married one day. The respondent wrote "otherwise, she knows that she has a new lease on life. She feels well and healthy, unlike before when she was always sick and depressed." He made a note of follow-up for the following Sunday afternoon, in two days time. There is a further note "patient gave permission to charge the entire amount of $505 on her MasterCard. No charge by hotel." A charge of $505 was made. 2 March 2009 1. There is a hotel visit. The notes commence "patient is well". The respondent recorded regular bowel movements, and examined her skin. The notes show that the patient was "counselled about further developing her persona – should exert influence her immediate environment when staying at a five star hotel – should aim to be pleased." The respondent referred her to a specialist. No amount was charged to her MasterCard that day, but an amount of $475 was charged the following day. 5 March 2009 1. There is a hotel visit and a note that "patient gave financial consent for 25 minutes consultation plus flag fall." The notes show a charge of $90 "plus hotel visit flag fall". The patient was observed to be "well" and blood was taken for pathology. A charge of $370 was made. 14 March 2009 1. Patient is observed to be "well". There is a notation of a significant amount of weight loss, bladder being "in a bad condition" following cystoscopy and complaints of pressure sore over right hip. He said he would provide her with silvazine and follow this up the next morning. There was no charge made that day although two charges are recorded against Medicare, each for $475. One of the items is for a consultation on a public holiday or after hours. It is noted that the consultation took place on a Saturday, and, as is obvious, he had arranged for a follow-up the following day, a Sunday. 15 March 2009 1. Hotel visit 8:40 pm – examination of wound and applied silvazine and gauze. Discussion about suprapubic catheter. There was a charge of $975. This may have included fees for consultation on 14 March 2009. 14 April 2009. 1. No times indicated in notes. No charge made to MasterCard, although $590 charged to Medicare, with a rebate of $485.60. 15 April 2009 1. Hotel visit commence 6:05 pm. Clinical notes state "patient fell onto floor while closing the bathroom door – unable to get back on wheelchair spent almost 90 minutes trying to get her back on the wheelchair – eventually manoeuvre herself from floor onto top mattress when place of the ensemble and onto the floor, – shuffled up to footstool then shuffled onto wheelchair." There then follows; "explained that I cannot help her because of occupation safety concerns." He examined a right hip wound, supplied a non-adhesive dressing. There was a charge of $590. It seems that 90 minutes of this consisted of the respondent watching the patient endeavouring to get back onto her wheelchair without assistance from him. 16 April 2009 1. Hotel visit started at 6:05 pm. The clinical notes record a discussion concerning the patient's general condition and whether she should continue to have treatment in the area where she lives rather than in Sydney. He records the following note; "my role now has diminished in relevance. I am not doing the surgery for her. I explained to her that I am not her nurse. I have told her a number of times and caring for her is like caring for three people. This particular aspect of the management – the SPC and possible surgery for stomal bag has been planned for more that (sic) six months. I have attended to her care to the nth degree. Yesterday, I notified her that my fees have changes to $380 per hour (business hours) and $480 per hour (after hours)". The notes then go on to record the fact that the patient became upset and expressed her admiration for him as a GP. He examined her wound and applied silvazine. Under the heading "impression" the notes record the patient has been "inappropriate" at times and that her behaviour is flirtatious. He thought that her fall the day before may have been an attempt to get him to help her up by holding her. There was also a discussion concerning the emotional interchange between them. The consultation finished at 7:10 pm. There was a charge of $825. There are notes in the clinical records of the respondent preparing certain documentation for AS on 18 May and 10 July 2009. There are also notes of SMS communications with her on 16 July 2009. The next recorded "consultation" occurred on 25 June 2010. 25 June 2010 1. AS observed at her request while undergoing a gym session with a physiotherapist at a rehabilitation hospital. There is a consultation time of 40 minutes recorded, but no charge made. 29 June 2010 1. The notes record that "patient called." Prima facie it is unclear whether or not the one-hour consultation was by telephone or personal attendance. However, there is a reference to "direct billing agreement read and signed costs agreement signed." Presumably, this would only have occurred if there had been a face-to-face meeting. We note, however, that neither agreement has been produced by the respondent despite having been required to do so in previous proceedings. A charge of $660 is made against the patient's MasterCard on 30 June 2010. Of possible significance when considering other matters relevant to these proceedings, we note a comment contained within the clinical notes made with respect to this consultation, which occurs in connection with a contemplated surgical procedure. The notes read; "Initially, she was defensive about her attitude. She stated that I got it wrong about her. I replied saying that I have got her right from the start. That is why she has become better." There are notes of "surgery consultations" on 1 July, 6 July, 15 July, and 6 August, 2010. It is clear from these notes that the respondent has either imported some form of documentation from AS or perhaps her treating doctors from the area where she lives, or has had telephone conversations with her. It is clear from the notes of 6 July that there was a conversation of about an hour in which the respondent purported to give AS a great deal of advice, presumably over the phone, about treatment being afforded to her by her local doctors including advice about a proposed surgical procedure. There are no records of any charges made on these occasions. 7 August 2010 1. The clinical notes refer to the importation of a discharge summary and a telephone call by the respondent to a specialist, Dr Cooper. An amount of $520 is charged that day to the patient's MasterCard. A Medicare charge of $520 purportedly for item 24 level B, was made, with a Medicare rebate shown of $427.70. There are further "surgery consultations" noted on 26 and 28 August 2010, predominantly referring to the importation of certain documents. Included in these documents are said to be a cost agreement and credit card authority. No charges are made for these consultations. 7 September 2010 1. The clinical notes record an SMS to AS advising her that a credit card transaction was declined. A Medicare claim of $660, again for item 24 level B was made that day with a rebate of $539.70. 8 September 2010 1. There are two consultations recorded this day. The first records what can only be assumed is a telephone conversation concerning certain aspects of the treatment of AS by her local doctors, with arrangements made to organise an MRI in Sydney. A consultation duration of one-hour is noted. The second consultation seems to record an SMS from AS saying firstly that money was available for the respondent and secondly referring to the MRI scan and other treatment. A charge of $660 is made against her MasterCard, and the same amount is charged to Medicare again as item 24 level B, with a rebate of $537.70. 9 September 2010 1. The notes record a series of SMS communications from AS. The sum of $660 is charged to her MasterCard. 18 September 2010 1. The notes record a hotel visit. There are no notes of any physical examination, and only brief notes discussing the current state of her treatment. An amount of $520 is charged to Medicare with a rebate of $429.90. 20 September 2010 1. The notes record receipt of an SMS from AS. $600 is charged to her MasterCard. It is possible that this relates to the consultation on the previous day. 27 September 2010 1. The clinical notes refer to a detailed email from AS which discusses a proposed operative procedure and a misunderstanding with the surgeon who was to carry it out. The email concludes with the following: I do hope that it clears the air because you won't tell me why you got so angry with me and I have been very upset ever since our argument. I don't want to fight with you ever again. You really mean such a lot to me and I can't thank you enough for what you have done to me and I am looking forward to seeing you next week. Underneath this, the respondent made the following notation: I did not know the relevance of this matter as it has been resolved that she is having the operation in Sydney. I explained that I will not raise the issue about the consultation when I was relegated from being a doctor to housekeeper by helping her on to the mattress and onto the bed. I would no more than displeased at having to do that. I will need access to further discussion on the matter as it was 18 months ago. If she chooses to continually bring this up, I will have to release her from my care and terminated (sic) the patient doctor relationship. An amount of $520 was charged to her MasterCard. The same amount was charged to Medicare as an item 23 level B consultation. We understand that this applies to a consultation in the rooms of a medical practitioner. A Medicare rebate of $422.90 was paid. 28 September 2010 1. AS sent a number of text communications to the respondent inter alia seeking an appointment, which was arranged for later that day at her hotel. There was a discussion about her forthcoming surgery. In his notes, the respondent recorded: I explained to (AS) that our communications to all involved, the specialist and myself included, have to be clear and in the best manner possible. Theses (sic) are people who are eager to help her and in real terms we are seeking a miraculous outcome from the surgery. She has the best three surgeons (that I know) involved in the case. She must not be seen to be wrestling or antagonising as to cause doubt in the Dr's minds as to whether to help her or not. She must take a passive, learning role." As will be observed later, this cannot be characterised as either counselling or therapy. The duration of the consultation was said to be 30 minutes. A charge of $520 was made to Medicare. The same amount was charged to her MasterCard the following day. 16 October 2010 1. A hotel visit was undertaken. The notes record that the patient was looking "very well", the medication was working and she had no problems with diarrhoea. She was given a referral to an ophthalmic surgeon. There was a discussion about the forthcoming hysterectomy. The respondent makes it clear in his notes that he did not want AS to have a hysterectomy and a resection of the vagina. He thought that she would feel violated …and less of a woman. She would most likely become depressed. This would make the operation not – worthwhile. I have given here another of suggested pharses (sic) to tell the specialist about this aspect of her life. She should not be dismissing the possibility of having relationships in the future…… She should say things like, "I would like to preserve my womanhood", "I do not want to feel less of a woman after the operation" and words to that effect. He noted that he would "write to all Drs concern about preserving her womanhood." The respondent noted that AS had asked him to complete a superannuation form for early access to the funds and that "she agrees to be charged for that." A charge of $860 was made to Medicare shown as item 24 level B, with a rebate of $699.70. 22 October 2010 1. This was a hotel visit. The clinical notes indicate that the respondent signed a Permanent Incapacity Claim form for AS, the duration being 15 minutes. Furthermore, there was a discussion about the forthcoming operation. A charge of $760 was made to her MasterCard, and a Medicare claim was made for the same amount. 1 February 2011 1. A hotel visit was made. The respondent noted that AS was well and in good spirits and had dyed her hair red. She was enthusiastic about the forthcoming operation. There was a discussion about the delayed payment to her of moneys under an inheritance. The respondent arranged an MRI examination. The notes record a consultation of 30 minutes and that AS signed a "financial consent" for $520. That document has not been produced. $520 was charged to her MasterCard, and the same amount was charged to Medicare. 10 February 2011 1. A hotel visit was undertaken The notes record a discussion about the forthcoming operation and her current state of health. A duration of 40 minutes was noted. A charge of $600 was made to her MasterCard and the same amount was charged to Medicare. 7 March 2011 1. A hotel visit was made. The notes indicate that there was a discussion about her inheritance claim. There was also a discussion about the forthcoming surgery for partial amputation of both legs. The consultation took 55 minutes, with a notation that she would be charged for 45 minutes. A charge of $790 was made to her MasterCard with the same amount to Medicare. This is the last date for which MasterCard records are available. 26 May 2011 1. A hotel visit was undertaken. This appears to be the first consultation following the partial amputation of her legs. The respondent took a history of her current problems and arranged a referral to a specialist. He also gave her scripts for medication. He diagnosed infected eczema. The notes record a consultation "and work done involved with this consultation" as more than two hours. He advised AS that the hotel would charge her $220 on its account and that he would write to Medicare to explain that "the $220 is included in her consultation. The extended services will be charged directly by me." A charge of $960 was made to Medicare under item 24 level B, with a rebate shown of $779.90. 27 May 2011 1. There is a notation "time for prep and consultations – more than one hour". The respondent examined the skin on her buttocks and noted that the infected eczema was responding "very well" to medication. He wrote a letter to a specialist. There was a charge for one hour. $480 was charged to Medicare. 28 May 2011 1. AS reported on a review in hospital. She asked questions of the respondent concerning fistulas. He advised that she did not have fistulas. The respondent then noted; "she continued to ask questions which did not make much sense. She said that that she was only doing what she was supposed to be doing, that is asked questions. I responded by saying that it is not possible for me to pass on all my medical knowledge to her. She will not be able to speak about medical issues at my level. I also explained that this process of preparing for this dangerous and complicated operation will require her to be more and more compliant. Asking too many questions, especially about matters that she is not able to comprehend properly will be counter productive." 2. After further discussion the respondent examined her buttocks. He noted that "patient wants me to review her tomorrow." He charged for one hour, after recording that the consultation and work was "more than 1 hour." A charge of $580 was made to Medicare, under item 05020 level B, which is for a consultation on a public holiday or after hours. 29 May 2011 1. Hotel visit noted. The respondent examined the skin on her buttocks. He advised her to lose weight. He said he would try and arrange for medical physiotherapy and that she should join a gym and get personal training. His notes recorded; "I explained (AS) she needs social training like that of a school for ladies. This is the way she can enter society and be less ostracised." He noted a charge as for one hour. A charge was made to Medicare under item 05020 level B for $580. 30 May 2011 1. The notes record that "patient has been to Derm clinic – consultant says that dermatitis has settled…." The respondent examined her skin. The notes record "I explained to (AS) that I do not have to see her every day. As always, I will only review her at her request. Patient says that she would like to see me every day for review of the rash." The notes then state "patient touched her nose immediately after taking her pants off. I told her that this is not ladylike. I will need to provide some social training. I have to school her as a lady." The notes then record a discussion about the advice of the respondent to her to "up skill" and to become independent and productive. He advised her to undergo weight loss and training. A charge of $480 was made to Medicare. 31 May 2011 1. There are no clinical notes for this date. $480 was charged to Medicare. 1 June 2011 1. A hotel visit of more than one hour. The rash on her buttock was noted to be "improving". The notes record "I explained to her that I will become more strict regarding her etiquette and habits. She should be schooled in cleanliness and getting used to clean fresh environment and living conditions…... She has been very admirable to continue to work at being clean, being well and not giving up. I am here to help her do that." The notes indicate a charge for 45 minutes. A charge was made to Medicare of $360 being item 24 level B. 2 June 2011 1. The notes indicate the respondent made a number of calls to secure accommodation for AS in a rehabilitation hospital environment. He went to facilities at Darling House to inspect them. There is a note of examination of the buttock area. There are also notes of detailed communication concerning the appropriate way for the patient to clean up after bowel movements. A charge of $960 was made to Medicare being item 24 level B 3 June 2011 1. The notes indicate that the respondent made attempts to secure respite care accommodation in a number of facilities in Sydney. During the hotel visit the respondent told AS that she may have to extend her stay at the hotel. The notes record "I explained…. that treating her is like treating three people at the one time. The patient –doctor relationship is purely professional. The amount of work involved is equivalent to treating the (sic) people at the one time." There are notes of discussions concerning improving her standard of living by reference to hygiene and cleanliness. Her buttocks were examined. The notes indicate that total time "work" involved in the consultation exceeded 2.5 hours. A charge was made to Medicare of $1200 under item 24 level B. 6 June 2011 1. There are notes of calls to arrange respite care. At a hotel visit AS is told she has an appointment for assessment the next day and that she should try to make a good impression. On examination the buttock rash is seen to be improving. She was informed about procedures to maintain hygiene. There is a note of "time work" on this consultation including contacts for assessments exceeding 1.5 hours, but charged at 1.5 hours. A charge was made to Medicare of $720 being item 24 level B. 7 June 2011 1. There are notes of discussions concerning respite facilities and an ACAT assessment. There is no note of any personal attendance on AS. A charge of $580 is made to Medicare under item 24 level B. 8 June 2011 1. There is a hotel visit. The rash on her buttocks is examined and noted to be healing well. There are notes indicating that the respondent "counselled" AS regarding cleanliness and her future life. She was advised to consider vocational training and get a job to re-enter society or as a receptionist with computer skills. The notes concluded "I has (sic) reassured her that I will continue to care, guide her through the operation." The consultation was said to exceed 45 minutes but charged as for 30 minutes. A charge of $240 was made to Medicare under item 24 level B. 9 June 2011 1. The notes indicate that the respondent made telephone calls to arrange for an ACAT assessment, and for a catheter bag to be taken out while AS is in a rehabilitation hospital at Petersham, an inner city suburb. There is nothing to indicate any personal attendance on the patient. A charge is made to Medicare of $240 being item 24 level B Hospital records indicate that AS was a patient in Metro Rehabilitation Hospital in Petersham between 9 and 29 June 2011, and in Holroyd Private Hospital in Guildford between 30 June 2011 and 10 August 2011. 13 June 2011 1. AS is seen at the Metro Rehabilitation Hospital. She was observed to be doing well with some bowel incontinence problems, and the rash on her buttocks to be much improved. There is a note of follow-up the following Wednesday. A charge of $470 was made to Medicare being item 24 level B. 15, 17 and 20 June 2011 1. There are no clinical notes for these dates. Charges are made to Medicare of $520, $640 and $440 respectively all noted as item 24 level B. Rebates are shown at $427.90, $523.90 and $363.90 respectively. 21 June 2011 1. There is a note of a telephone call of 20 minutes to discuss home assistance for AS. No charge is made that day, but $860 is charged to Medicare on 22 June 2011 under item 24 level B, although there is no record of any attendance in the clinical notes that day. 23 June 2011 1. There is a note of a letter forwarded to Dr Michael Cooper about the forthcoming operation. There is a reference to discussing whether her vagina should be "closed up" and that she would "feel castrated. This may affect her self-esteem and she thinks of herself on par with other women." A time is noted for this letter of one hour. No charge appears to have been made for this day, but on 24 June 2011 there was a charge to Medicare of $1240 being item 24 level B, with a rebate of $1003.90. There is no clinical note recorded for 24 June 2011. 25 June 2011 1. There is a note of attendance at Metro Rehabilitation Hospital at the request of AS to observe her in the gym. There are notes of discussions with various personnel at the hospital in order to extend her stay. There is a note of a consultation of 40 minutes. No charge is recorded for that day. 27 June 2011 1. There is a note of discussions to endeavour to extend her stay at the hospital. The respondent visited AS at the hospital and observed her exercising in the gym. There was a discussion with her about procedures to extend her stay. "Work done" was noted as 1 hour. A charge of $760 was made to Medicare under item 24 level B. 28 June 2011 1. The respondent attended at Metro Rehabilitation. There was a discussion with her about assessment of her independence, and about delaying her surgery until Dr Cooper could be present. There was also a discussion about whether her vagina should be "closed up" and whether she could have a relationship and children. The notes record "During the heated debate, she was sometimes arrogant and rude in her manner. I put her on notice that if the rudeness continues, that I will terminate the patient Dr relationship. I asked her to reconsider the way she speaks to her doctor." The notes indicate a total time for consultation and phone calls exceeding one hour. A charge was made to Medicare of $600 being item 24 level B. 2 July 2011 1. The respondent attended at Holroyd Private Hospital in response to an SMS from AS to see her before her operation. There is a note confirming that the respondent does not have admitting rights to this hospital. The notes indicate a detailed discussion with AS about her negative experience at Metro Hospital, her forthcoming operation, and what is involved in that operation. There was also a discussion about their relationship and how much the respondent means to her. The respondent recorded "I explained to her that I'm trying to mould her and prepare her in the best way possible to have the best outcome. If she could not understand that, I have no business here." The notes also indicate discussions concerning depression, her mood and that AS needs the support of the respondent for the operation. AS requested to see the respondent three times a week. The notes record the consultation was "difficult." Her depression had lifted but she was "spending her energy in a negative way". There is a note of a consultation of 1 hour 52 minutes. A charge of $1480 is made to Medicare under item 24 level B with a rebate of $1195.90. 4 July 2011 1. Visit to Holroyd Private Hospital. There are notes of discussions and counselling about AS as an individual. There is a history of her current situation. There is a note of discussion with nursing staff about her skin condition. 2. The consultation is noted at 1 hour. A charge is made to Medicare of $1080 under item 24 level B with a rebate of $875.90. 5 July 2011 1. There is a note of a discussion with a Dr concerning loss of smell suffered by AS. There is no note of any charge that day. 6 July 2011 1. There is a note of a personal attendance on AS. There is a discussion about her loss of sense of smell and her current circumstances. There is a note "At her request, I would attend her to explain things to her but not to give her medication because I do not have admitting rights." The respondent examined her rash and took "clinical photographs". 2. There is a notation of "work" of 1 hour. A charge of $1080 is made to Medicare under item 24 level B with a rebate of $875.90 8 July 2011 1. There is a note of an attendance on AS. There is a further discussion about the nature of the proposed operation. There is also discussion about her prior sexual experiences. A charge is made to Medicare of $1080 under item 24 level B with a rebate of $875.90. 11 July 2011 1. AS is visited in hospital. The notes indicate that there is a detailed discussion with her about the nature and extent of the proposed hysterectomy operation and his concern that she should not be "closed up" and feel "castrated". He thinks that her goal should be to look for companionship after the operation. A charge of $1080 is made to Medicare under item 24 level B with a rebate of $875.90. 13 July 2011 1. The notes indicate there is a discussion about the proposed hysterectomy operation and conversations that AS has had with one of the doctors involved. The respondent includes in the notes; "I am concern (sic) about (AS) bad attitude about her forthcoming operation. Also, while I understanding that she socialises and talk about her medical condition to others, I think that she is overdoing it. I don't think that it has not dawned on her the magnitude and complexity of this operation. This is not routine and (AS) should not take the attitude that it is routine. She should be in awe of these people who are about to endow her with a miracle." A Medicare charge is made of $1080 under item 24 level B with a rebate of $875.90. 15 July 2011 1. The clinical notes as recorded do not include any entry for this date. The sum of $1480 was charged to Medicare that day under item 24 level B, with a rebate of $1195.90. Mention was made by counsel for the HCCC during the course of the proceedings that there were no clinical notes produced by the respondent for the charge made that day. On 17 December 2014, during the course of the proceedings, counsel for the respondent sought to tender a 3 page document which, on the first page, contained notes of a surgery consultation of the respondent on 13 July 2011, and on the following two pages included what purported to be notes of a surgery consultation on 15 July 2011. The last few lines of the third page contained material purporting to be the commencement of clinical notes for the surgery consultation of 20 July 2011. Consideration of the tender of these documents was deferred until the following day. At that time the Tribunal pointed out to counsel for the respondent that the material purportedly contained within the consultation of 15 July 2011 included material previously contained within the documentation provided by the respondent for 20 July 2011. In submissions, counsel for the HCCC suggested that this new documentation sought to be tendered for the first time in the proceedings might be a fabrication. At that stage counsel for the respondent sought to withdraw the tender and asked for the return of the documents. We refused to return the documents, which have been marked MFI 1 in the proceedings. We have grave concerns about the circumstances in which this documentation was produced on behalf of the respondent, and as to its provenance. We make no adverse inference of any kind with respect to the respondent's counsel. We intend directing the Registrar to forward the document to the DPP with a copy of these reasons for decision. 20 July 2011 1. The notes detail discussion with AS about her forthcoming operation and whether she wishes to have a loving relationship in the future, and whether she had told her treating doctors about this. There was also a discussion about problems with her bowel incontinence. The reason for the visit as noted was "pre-operative assessment." A charge was made to Medicare of $1480 being item 24 level B, with a rebate of $1195. 22 July 2011 1. There are detailed notes concerning a discussion with AS about whether she has any sensation below the waist, her past sexual experiences and her desire for a future relationship. The notes record that AS told the respondent that she wanted him to continue as her doctor. They conclude; "in hindsight, I felt that (AS) was wanting me to comfort her like Professor Solomon comforted with a hug. The consultation was drawn out by her emotions." A charge of $1680 was made to Medicare under item 24 level B with a rebate of $1355.90. 25 July 2011 1. Following a discussion concerning the proposed operation the respondent noted; "I re-it rated to her that there is a doctor-patient contract. I am her doctor. She is required to be compliant to my advice. I will assess and reassess my involvement in her care." There follows notes of discussions between them. The respondent records that he explained that she exhibited signs of psychiatric and mental illness in missing having a partner. "I told her that she is depressed. She lacks insight. She lives in denial." After further discussion the respondent notes: "I will process the payments today. I will leave the receipts and prescription for her at (a radiology practice). In conclusion, I explained to her that because she has depression, I would offer her treatment in the form of counselling, psychiatrist review or medication. It is up to you." A charge of $880 is made to Medicare under item 24 level B with a rebate of $715.90. 26 July 2011. 1. The clinical notes record, inter alia, receipt of an SMS, presumably from AS terminating the relationship. No charge is made. There are no further clinical notes. The Expert Opinion of Dr Young 1. In a report received by the HCCC on 21 September 2012 Dr Young expressed his opinion about a number of the features of the relationship between AS and the respondent. In the course of doing so he referred to a number of provisions of the Code of Conduct to which we have earlier referred. In summary terms Dr Young said; 1. The respondent was a caring advocate for this patient and "displayed empathy for her plight. He referred appropriately, his letters to colleagues were of good standard and complete records of her care…. He displayed supportive counselling about issues such as housing, and her extended family, through medical interventions such as amputation, and finances." 2. On the initial visit the respondent "starts a pattern of frequent visitation, dependency, charging habits and authoritarian approach and displays a surety of his views and the power of his clinical intervention. On that date he visits the patient three times throughout the day, records that "patient wishes me to take over care for the week…." 3. That he found that the treatment of her leg ulcers with intravenous antibiotics was "irregular, impulsive and potentially unsafe." He thought the respondent should have obtained details of her condition from her local treating general practitioner or specialist and that administering the intravenous drug carried a risk of anaphylaxis. It was "best done in a hospital setting where there is continuous observation of the patient." He thought that this displayed an inadequate knowledge and lack of skill in providing safe clinical care and a failure to consider the balance of benefit and harm in the clinical management decision, in breach of provisions 2.2.2 and 2.2.4 of the Code. 4. The respondent did a reasonable job of juggling her complex treatment needs with respect to coordination. 5. The respondent set up an inappropriate dependency state with the patient with frequent visitation beyond clinical needs. The respondent persisted in undertaking daily dressings contrary to the advice of her local specialist. His management of the patient "verges on overservicing; this is no better illustrated than visiting and dressing her wounds the night before she was scheduled to have bilateral below knee amputations…. Often it seems that the visits are more of a social nature then driven (sic) any real clinical need." Instead of visiting the patient in hospital and charging her, the respondent should have liaised through a phone call. He thought that the presence of the respondent "as non-VMO GP seems superfluous during this preoperative time and at times over-involved." 1. In oral evidence, Dr Young said that a therapeutic relationship between a patient in a general practitioner can include counselling. However if this were to occur, he would expect there to be evidence of a mental health plan which included the matters about which counselling would be undertaken, and the goals to be achieved. He would also expect to see some evidence of expertise in undertaking counselling. 2. Dr Young examined the respondent's clinical notes of the period during which AS was in Holroyd Private Hospital. He could see very little therapeutic or clinical basis for these visits. In effect the respondent was duplicating or reflecting upon the work of the hospital staff and visiting medical officers. 3. In cross-examination, Dr Young was asked whether he had ever visited a patient in a hotel. He said that he had not, but had conducted many home visits which were in the same category. He was asked whether it was within the capability and experience of a general practitioner of nine years standing to see patients in a poor state of health. He said that most doctors would see this type of patient before leaving hospital training (at a time prior to qualifying as a member of the RACGP). It was put to him that AS presented as a complex patient with medical and psychological needs. Dr Young rejected any suggestion that a patient of this kind would be beyond the capabilities of a general practitioner with the training and experience of the respondent. He agreed that there might be different approaches to treatment, especially in the psychological realm but each of the complaints and conditions of AS could be broken down into simple segments and dealt with accordingly. 4. In cross-examination, Dr Young repeated his concern that the level of charges raised by the respondent for treatment to AS was "shocking". He had never seen this amount of money charged to one patient in such a short period of time. He said that they were three tiers of charge namely bulk billing, AMA suggested rates and whatever the doctor liked to charge. He thought that in all the circumstances the respondent should have charged AS something of the order of AMA rates, even allowing for the fact that Sydney CBD rates were slightly above the AMA rate. 5. Dr Young expressed concern in cross-examination that these charges were being made by the respondent to a patient who was vulnerable and not fully informed. He thought that the level of charging could intrude into areas of professional misconduct. He was critical of charges made to AS whilst she was in hospital under the care of a hospital team, and that the respondent should have said that he would not charge her at all for these visits. As a matter of "clinical life" general practitioners had to deal with the expectations of their patients and the number of times that the respondent saw AS in hospital showed poor judgement. 6. Dr Young said that the discussion with the respondent about her attire was not socially acceptable. It might be appropriate to talk about the attire if engaging in formal counselling, but based on the respondent's clinical notes his conduct was autocratic and it is easy in this setting to upset patients. Even if the respondent sought to characterise what was occurring as a kind of counselling, there was no evidence of any formal or supportive counselling. 7. Dr Young denied that the respondent had afforded AS holistic care; he described it as comprehensive. Given the experience and training of the respondent, he should be able to practice safely and independently. In giving his opinion Dr Young had set as a standard the experience of his peers. He would have applied the same standard in expressing his opinion about the respondent to a doctor who was a registrar or intern. 8. Dr Beran said in his report that when he first read the documentation provided to him he was quite critical of the respondent. However, upon further reading he became sympathetic to what he described as the "holistic approach" of the respondent in treating a most difficult patient with a complex array of medical problems. Not only did he treat her complaints but he also dealt with her "as a whole, trying to motivate her and trying to give her a new lease of life." He stressed that the respondent had provided psychological and counselling services to this patient "trying to motivate her and trying to give her a new lease of life." He thought that the criticism made of the respondent in particular by Dr Young showed "a lack of compassion for a patient who could not access her resources and Dr Quach was assisting her in a humane way, placing trust in the patient that she would not take advantage of him." Rather than providing a service which fell significantly below the appropriate standard, as was the opinion of Dr Young, Dr Beran thought that the respondent had taken appropriate control of the patient's treatment and was acting over and above what would normally be expected of a general practitioner in his position. 9. In the course of his oral evidence, Dr Beran continually referred to this patient as someone who was difficult and who was, in effect, a social outcast because of her range of medical problems. 10. It was his opinion that in general terms all of the attendances by the respondent upon this patient could be justified because they had some therapeutic value, even when the patient was in a private hospital setting in the overall care of other medical practitioners. 11. It seems to us that the opinion of Dr Beran was motivated substantially by what he regarded as the open-ended nature of the contract between this patient and the respondent. It was not limited to the provision of medical advice and medical treatment per se, because the patient constantly demanded the attention of the respondent and seemed dependent upon him for her overall well-being. In these circumstances he thought there was nothing wrong with the respondent acceding to these demands, and in the circumstances of his relationship with this patient he had not overstepped any relevant boundaries. Dr Beran adopted the same approach to the question of the level of fees charged by the respondent. In his opinion, the respondent could charge whatever he liked provided that the patient was aware of the level of charges and was happy to pay them, as was the case with this patient. 12. It follows that Dr Beran rejected the criticisms levelled at the respondent by Dr Young concerning these matters. 13. Dr Beran agreed that it would be highly irregular for a doctor to record consultations with a patient, but he accepted that the respondent had informed this patient that this is what he intended to do. 14. For completeness, we should add that Dr Beran was critical of the administration by the respondent of an intravenous drip to this patient in a hotel room, and he said he would have admitted the patient to hospital for this purpose. The Respondent's Assertions 1. As we have already said, the respondent declined to give oral evidence. We have set out above the contents of a written statement that the respondent prepared for these proceedings. 2. By letter dated 29 October 2012, addressed to the HCCC, the respondent sought to deal with a number of allegations made against him including those concerning AS. In that letter, the respondent; 1. Denied that it was unsafe for him to administer intravenous drugs to her in her hotel room. 2. Denied that at any time AS was dependent upon him in any way, that he had crossed ethical boundaries by providing non-medical services and by visiting her frequently and that he had failed to understand the possibility that he had developed a co-dependency relationship with AS. 3. Denied that his relationship with AS ended abruptly. 4. Stated that AS was aware of all times that she was being recorded and that written consent was obtained to record the consultation is. 5. Denied that he had engaged in overcharging. 1. In making these statements in this letter, the respondent alleged that an Expert Reviewer, on whose opinions the allegations had been made was inter alia expressing opinions beyond his or her expertise and was therefore negligent, had not kept up-to-date with the progress of general practice, was acting as an advocate for doctors who had audited his practice by "fabricating evidence" and had expressed a personal opinion and not a professional opinion. 2. In discussing the termination of his relationship with AS, the respondent said that this coincided with her visit to Associate Professor Solomon. He said; "after she informed the professor, in writing, that she wished to defer the operation, Associate Prof Solomon "hugged" her. The patient had expected the same from me. I did not hug her. I have never touched the patient without gloves on for the time I provided medical care." Consideration 1. We commence our consideration of this complaint by acknowledging that, as with all other matters concerned in these proceedings, we must have regard to the context of the doctor-patient relationship. There is a succinct statement of the nature of the relationship contained within the dissenting judgement of Priestley JA in the NSW Court of Appeal in Richter v Walton, unreported, NSWCA 15/7/93. It is cited with approval by the New South Wales Court of Appeal in HCCC v Litchfield (Ibid). Priestley JA said: The degree of trust which patients necessarily give to their doctors may vary according to the condition which takes the patient to the doctor. Even in regard to the most commonplace medical matters the trust a patient places in a doctor is considerable. In some cases, of which the present seems to me to be an example, the patient's trust cannot help but be almost absolute. The doctor's power in regard to the patient in such cases is also very great. I do not mean power in an abstract way but as a matter of fact; the extent of the power will vary according to the temperament of the patient, but the doctor with some patients and for limited periods, because of the relationship in which they are temporarily placed, is in a position to do whatever the doctor wants with the body of the patient. This is one of the reasons why doctors are subject to correspondingly great obligations and are expected to maintain very high standards: all this being very much in the public interest. 1. We would comment that in Litchfield the Court said that the: …gravity of professional misconduct is not to be measured by reference to the worst cases, but by the extent to which it departs from proper standards. If this is not done there is a risk that the conduct of the delinquents in a profession will indirectly establish the standards applied by the Tribunal. 1. In considering what are the proper standards, we bear in mind that in the context of the definition of unsatisfactory professional conduct contained in section 139B, there is a reference to conduct "that demonstrates the knowledge, skill or judgement possessed, or care exercised, by the practitioner…..is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience." Obviously, it would be difficult to measure in a quantitative sense conduct which is significantly below the standard referred to. However, impressions can be gained in a qualitative sense from the expert evidence of others and from the general understanding and experience of this Tribunal, which is a specialised tribunal having specialised knowledge, one of whose members is a general practitioner of long-standing experience. All of us have, from time to time, had dealings with general practitioners and have some understanding of matters such as the level of charges which are generally encountered by their patients. It may generally be assumed that the AMA level of fees provides a reasonable benchmark from which to assess fees charged by a general practitioner. 2. There are some general observations in the decision of the Administrative Decisions Tribunal of New South Wales in Legal Services Commissioner v Keddie [2012] NSW ADT 106 concerning professional standards, and what constitutes unprofessional conduct as they apply to members of the legal profession. The decision contains a comprehensive review of many of the relevant authorities, particularly at appellate level, both in respect to professional misconduct generally and with respect to professional charges. We acknowledge the assistance that we have derived from the material contained in that decision. Rather than reproduce extracts from that decision, we have taken the liberty of extracting some relevant principles which, in our opinion, can be appropriately applied to the medical profession generally, and in particular to our assessment of the conduct of the respondent. In doing so we have not attributed the source of the principal to any particular judicial pronouncement, but the relevant sources are available within the decision. 3. These principles are; 1. Unprofessional conduct includes "conduct which may reasonably be held to violate, or to fall short of, to a substantial degree, the standard of professional conduct observed or approved of by members of the profession of good repute and competency." 2. In applying the general concept of unprofessional conduct in disciplinary proceedings, any orders made "are directed not to the punishment of the practitioner but to the protection of the public…. The protection (of the public) extends beyond protection against further default by the particular practitioner to protection against similar defaults by other practitioners." In this way, such orders will enhance the protection of the profession generally. 3. In general terms patients will "ordinarily or at least frequently" place their trust in their medical practitioner. They are ordinarily not in a position to know about the efficacy, necessity and appropriateness of advice given and treatment recommended and afforded to them. They will ordinarily assume that a medical practitioner will have their reasonable best interests in mind. 4. Medical practitioners are in a position of "advantage and trust is placed in them. Clients are entitled to be protected against the abuse of such an advantage…… The fact that that advantage has been misused may warrant that conduct being characterised as professional misconduct." 5. For conduct to be characterised as professional misconduct "it is enough that it amounts to grave impropriety affecting his professional character and is indicative of a failure to either understand or practice precepts of honesty or fair dealing" in relation to patients. 1. Although Keddie was concerned with a legal practitioner, there are observations contained within the decision about the level of professional charges which in our opinion are appropriate to be applied to the respondent medical practitioner in these proceedings. It will be remembered that it was submitted by the respondent that he was not a member of the AMA, was not bound to apply AMA level of fees, and could charge whatever he liked provided that he had the consent of the patient. Indeed, this argument was embraced by Dr Beran in his expert evidence. We disagree with this submission, but in order to do so it is necessary that we discuss in some general terms the nature of the contract entered into between a medical practitioner and a patient. 2. If a medical practitioner raises a charge against a patient on his or her letterhead for a service rendered, prima facie the medical practitioner is asserting that the charges are for a therapeutic service rendered to the patient. This is more so, and extends beyond a prima facie situation if the doctor facilitates or encourages the submission of a claim to Medicare by the patient for a rebate for that charge. 3. The doctor–patient relationship and its boundaries are set in general terms by a contract, which takes the form of an agreement between the doctor and the patient. Theoretically, that agreement may extend to any number of therapeutic and other services and may make provision for the payment of a range of fees. However, if a doctor by the terms of an agreement imposes conditions which are beyond generally accepted community values and standards, the law will provide a remedy to a patient in appropriate circumstances. This takes the form of consumer protection legislation and, at common law, the equitable principles applying to unconscionable conduct. Reference has earlier been made to the position of advantage that a medical practitioner holds over a patient, and the trust that patients generally place in their medical practitioners. This trust extends not only to the nature and extent of any advice and treatment afforded, but also to the circumstances in which the advice and treatment will be given, and the charges made. 4. The existence of the advantage of the medical practitioner, which we have described, and the trust placed in the medical practitioner by the patient creates an obligation on the medical practitioner to restrict his or her services to those which are reasonably necessary in the provision of therapeutic services to patients. Of course, what is reasonably necessary will depend very much upon the circumstances of the patient. Some are more stoic and understanding than others; some are less dependent than others; and some are less questioning than others. However, even making allowances for the particular characteristics and idiosyncrasies of a patient, there will be boundaries which will set the outer limits of what is reasonably necessary and appropriate in the context of the doctor-patient relationship. Because the medical practitioner is in a position of advantage, the obligation will rest on him or her to set those boundaries. As will be seen, it is our opinion that the respondent trespassed beyond this boundary in his dealings with patient AS. 5. Medical practitioners are held to account under the regime established by the National Law for misconduct and incompetence in the practice of medicine. We instance the various provisions of section 139B and the definition of overservicing contained within section 138, which we have earlier set out. In the same way, there is no reason why the level of charges imposed by a medical practitioner cannot also be characterised as misconduct in appropriate and relevant cases. Just as the terms of a contract between a medical practitioner and a patient cannot preclude a medical practitioner from being guilty of overservicing as defined, and therefore guilty of unsatisfactory professional conduct, the contractual terms will not necessarily preclude a finding of unsatisfactory professional conduct by reason of the level of charges imposed on a patient whether because they are excessive or because they cannot properly be applied to the patient. 6. Keddie involved allegations of overcharging against a legal practitioner. There are some observations contained in that decision concerning professional charges which in our opinion can appropriately be applied to medical practitioners generally, and the respondent in particular. Again, we will not set out extracts from the decision but will attempt to summarise the general principles which can be extracted. These are: 1. In determining whether there has been "gross overcharging constituting professional misconduct" a court or tribunal is to be "guided by experience and a broad sense of what is reasonable and fair." 2. Whether and to what extent the charges contained within an agreement as to the level of fees will constitute unprofessional conduct will be "a question of degree dependent upon the facts of the case." It will be necessary to determine "what, in the particular circumstances, would be a reasonable sum to charge." In the context of a medical practitioner this would involve matters such as the complexity of the condition of the patient, the novelty of any such condition, the difficulty in treatment, the quality of the work undertaken by the practitioner, the amount of time spent and the responsibility involved, all in the context of any agreement which might have been reached as to the level of charges. 3. In each case, the relevant enquiry is whether the medical practitioner "has charged fees grossly exceeding those that would be charged by (medical practitioners) of good repute and competency." It is enough that the conduct "amounts to grave impropriety affecting his professional character and is indicative of a failure to either understand or practice precepts of honesty or fair dealing" in relation to patients. 4. Patients will ordinarily rely solely on the medical practitioner to determine what treatment needs to be afforded and under what circumstances, how frequently they need to attend on the medical practitioner, and that they will be charged appropriately but not grossly excessively. 5. "No amount of costs agreements, pamphlets and discussion with vulnerable clients can excuse unnecessary over-servicing, excessive time charges and over-charging where it goes beyond the bounds of professional propriety." (Per Kirby P, as His Honour then was, in The Law Society of New South Wales v Foreman (1994) 34 NSW LR 408 at 423. 1. We now come to consider the circumstances of this patient, AS. It is patently clear from the narrative in the respondent's own notes and the other evidence that she was dependent to a very large degree on the respondent. It is equally clear that he originally initiated that dependency and that he continued to encourage it throughout the course of their relationship. Furthermore, much of the interaction that the respondent had with AS was of a dubious therapeutic nature and outside the realms of treatment usually afforded by a general practitioner to a patient. The respondent manipulated the patient and took advantage of her in such a way that he was able to derive fees from her which can only be described as reprehensible in all the circumstances. Furthermore, he unnecessarily and inappropriately interfered with and intruded into decisions which could only properly be made by her, based upon medical advice being given to her by a range of specialists, and which should have been properly given to her by the respondent if he had been conducting himself in an appropriate and responsible manner. The conduct of the respondent as we have described it, and as we shall examine in greater detail is not only so removed from the standard of the practice of medicine which should have been applied in the circumstances of these proceedings, but it is of such a nature that it warrants, in the interests of the public and for the protection of the public a finding not only of unsatisfactory professional conduct, but also of professional misconduct. We shall now deal with these matters in some greater detail. 1. In terms of the charges levelled by the respondent, as is obvious from the narration which we have earlier set out, they are inconsistent and vary as to amount. In discussing them we are prepared to give the respondent the benefit of the doubt where a charge is created on a particular day, but arguably might also apply to an attendance on a previous day. 2. Some of the charges are obviously excessive. For example on 24 August 2008 there is a charge of $480 for a consultation of one hour and 20 minutes whilst administering IV fluids. Presumably this would equate with a level D comprehensive service as contained within the AMA rates for a consultation other than in consulting rooms. The fee at the time was $210. On 30 September 2008 there is a discussion about the proposed partial amputation of both lower legs and preparation for surgery. $537 is charged. On the following day there is a charge of $520 for a 30 minute consultation. $490 is charged on 3 October 2008 and $495 for a 25 minutes consultation the following day. On 5 October 2008, a Sunday, $1040 is charged for two consultations each of one hour. The following day there is a charge of $690 for a one-hour consultation. On 7 October there is a charge of $591.30 for a 1 hour consultation and, presumably, also making representations to the hotel and arranging alternative accommodation. On 9 October 2008 there is a charge of $865. There are many other charges of a similar nature. From our reading of the clinical notes it is hard to justify consultations of the order of one hour in length on many of these occasions, and it seems that much of the time was taken up in discussions between the respondent and AS about her condition without affording any significant treatment. This is not surprising because she was obviously under the care of a number of specialists at the time. Even allowing the respondent some measure of doubt in terms of the reason for and subject matter of the consultations, the charges are considerably in excess of the AMA rates. The respondent said that he had a signed costs agreement on each occasion. AS denied this but did in general terms agree that the respondent had indicated a general level of charges and that she was prepared to pay them. Nevertheless, his charges exceeded the AMA rate, exceeded in some cases his quoted rate, and, in our opinion, far exceed what was reasonable in all the circumstances. 3. We conclude that in all the circumstances the level of charges imposed by the respondent on AS, and the circumstances in which those charges were raised are such as to constitute unsatisfactory professional conduct, and because of the severity of the situation and because they are so far removed from our understanding of charges which would normally be made, and, significantly not made, that they are indicative of and represent professional misconduct. In so concluding it follows that we do not accept any argument that there was an agreement between the respondent and AS that would have allowed him to make charges at this level, and even if there were such an agreement, that it would preclude us in reaching this conclusion, for reasons which we have previously advanced. It follows also that we reject the opinion of Dr Beran about this matter. 4. On 5 December 2008 the respondent notes his advice to AS that there is no medical need to see her on a daily basis but that she was keen for him to do so. As we have observed, it is the responsibility of the medical practitioner to set the boundaries of his relationship with the patient. He could have refused to have attended on her daily as she requested because there was no good therapeutic reason at that stage that him to do so. If he was concerned about the welfare of AS or her psychological state, he could have arranged counselling through a psychologist or other health professional. It is clear from a reading of his clinical notes that the respondent thought himself to be confident and capable of affording counselling to AS. If so, and if he had appropriately embarked upon treatment of her by counselling, it would be expected that he would have created an appropriate care plan with designated goals and a treatment regime, as referred to in the opinion of Dr Young. He did not do so, and we agree with Dr Young that this represented a deficiency in the standard of care. This must, therefore, call into question the charges made by the respondent on those frequent occasions where his notes reveal that he had discussions with AS which can only be justified as being in the nature of counselling. 5. We agree with the opinion of Dr Young that there can be no justification for the respondent to have attended on AS whilst she was an inpatient at Holroyd Private Hospital under the care of medical and nursing staff whilst there, and whilst he had no visiting rights. This is also indicative of the failure of the respondent to set appropriate boundaries in his relationship with this vulnerable patient, and his exploitation of her by levelling charges in an amount which, in all the circumstances, are grossly unreasonable and unnecessary. 6. We could continue to discuss the nature and extent of the charges levelled by the respondent as set out in some detail in the summary which we have earlier reproduced, but they would only indicate "more of the same" inappropriate and inexcusable conduct on the part of the respondent. We do refer however, to the continuing, almost obsessive discussions which the respondent had with AS about her hysterectomy. It may have been appropriate to discuss with her on a few occasions whether her vagina should have been "closed up", but the clinical notes are replete with repeated discussions about the subject, perhaps because there was little else for the respondent to talk about with this patient given the nature and extent of her treatment by others. 7. The notes also indicate that the respondent maintained an overbearing position in connection with his relationship with AS and her obvious dependence upon him. There are several references to his threats to terminate the relationship, and he questions from time to time her right to request information from him. 8. The clinical notes reveal that the respondent had made audio recordings of at least some of his consultations with AS. He said that he had written consent to do so. She denied this. The respondent has not produced from any of his records relating to this patient any consent form indicating permission to record consultations. The only form which is arguably relevant contains a reference to video recording but not audio recording, and then only for a specific purpose. 9. We state for completeness that we agree with the observations of Dr Young that the respondent overstepped his professional boundaries with AS in terms of his discussion with her about her attire, the necessity to change her lifestyle and similar matters. We acknowledge that it is often within the purview of a general practitioner to discuss matters of this kind in a general way, but only if relevant to the patient's condition and ancillary to treatment. 10. We are comfortably satisfied that each and every one of the particulars of this complaint has been made out to the requisite standard, and that in their totality they constitute unsatisfactory professional conduct, and, for the purposes of complaint six below, in the aggregate they constitute professional misconduct. COMPLAINT TWO Is guilty of unsatisfactory professional conduct under section 139B of the National Law in that the practitioner has: (i) engaged in conduct that demonstrates that the judgement possessed, or care exercised, by the practitioner in the practice of medicine is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience; (ii) engaged in improper or unethical conduct relating to the practice or purported practice of medicine. Background On 26 September 2009 the practitioner first met Patient VK through mutual friends. On 1 January 2011 the practitioner and Patient VK married. Between 8 October 2009 and 7 January 2011 the Patient VK consulted the practitioner in a clinical setting for treatment, including but not limited to, the cessation of the oral contraceptive pill for pregnancy, providing hormonal and pregnancy testing and making referrals to specialist doctors. PARTICULARS OF COMPLAINT TWO 1 Details suppressed.. 2 On 12 January 2010 the practitioner exercised poor clinical judgment in his treatment of Patient VK in that he: i) Administered adrenalin in circumstances where it was not warranted; ii) Allowed Patient VK to drive unaccompanied after administering adrenalin. 3 The practitioner exercised poor clinical judgment in his diagnosis of a urinary tract infection in Patient VK based on the history recorded in the clinical notes on the following dates: i) 27 November 2009 ii) 13 March 2010 iii) 10 June 2010 iv) 21 June 2010 1. The evidentiary material with respect to this patient consists primarily of the respondent's clinical notes and certain information which he has provided during the course of certain investigations. We also have available the expert opinions of Drs Young and Beran. 2. The clinical notes cover a period of at least 8 October 2009 to 26 August 2010. On 12 January 2010 the patient attended his surgery after informing him that she had numb swollen lips from 10:30 the prior evening. He had advised her to come to the practice "ASAP". On her attendance he formed the impression that she might be suffering from a food allergy. The notes record that she was given adrenaline, having been advised that she would experience a fast heart rate. Less than five minutes after the injection she complained of dizziness and began to faint while hyperventilating. She blacked out intermittently and complained of difficulty in breathing. She was then administered prednisone. She was observed to "normalise" and orientated to time and place and person. She was given an antihistamine, observed for more than one hour and then allowed to drive home. He followed up this episode five days later. 3. Dr Young said that the respondent's management of this episode was "extremely unsafe." There was no evidence that her symptoms were more than a mild allergic reaction and she did not show progressive allergic symptoms "nor any symptoms or signs of impending anaphylaxis such as respiratory, abdominal, tongue or laryngeal symptoms or signs." He said that the respondent had demonstrated poor clinical judgement and knowledge and displayed risky overtreatment. He was also critical of allowing the patient to drive after the administration of adrenaline. 4. There was in evidence a referral letter from Dr Rod Lovett, of the RPAH allergy unit which said that the administration of Prednisolone and adrenaline "seemed appropriate at the time." Dr Young rejects this as an informed opinion because this Dr would only have had a referral from the respondent available to him and not the primary documentation. 5. Dr Young is also critical of the diagnosis of UTI in this patient made by the respondent. Such diagnoses were made on 27 November 2009, 13 March 2010, 10 June 2010 and 21 June 2010. On each of these occasions Dr Young is unable to ascertain any appropriate clinical basis for a diagnosis of UTI. Importantly, there is no justification for such a diagnosis in any MSU report. Nevertheless the respondent prescribed Keflex for treatment of UTI in circumstances where this could not be warranted. Dr Young said that this was another example of diagnosis, investigation and treatment of UTI in circumstances where there was no urological basis. 6. Dr Beran thought that the administration of adrenaline "is an emergency intervention and it is unclear that such an emergency did exist, in which case the clinical judgement would be suspect." He thought that as Dr Young had excluded "more serious potential consequences of adrenaline" as having occurred, it might well have been appropriate to let this patient travel home. He said that he could not be sure of this. Dr Beran agreed with Dr Young that the basis upon which a diagnosis of urinary tract infection was made was "far from convincing" and that Dr Young's comments appeared "reasonable." Dr Beran thought that the fact that this patient had made no complaint against the respondent was, in some way, relevant. 1. We have omitted particular 1 of this complaint. It is based upon an allegation of a particular relationship between the respondent and this patient during a period from 26 September 2009 and 1 January 2011. There is no evidence before this Tribunal of a relationship of the kind alleged that would allow us to be comfortably satisfied that it existed between those dates. There is ample evidence that it existed from January 2011, but this is outside the period specified in the complaint. Accordingly, we decline to find that this particular has been made out. 2. However, based on the expert opinions of Drs Young and Beran we are comfortably satisfied that particulars 2 and 3 have been made out. We find that each of them constitutes unsatisfactory professional conduct, and by reason of the serious nature of the inadequacies and deficiencies of the clinical knowledge of the respondent we are of the opinion that, for the purposes of complaint six below, in the aggregate they constitute professional misconduct. COMPLAINT THREE Is guilty of unsatisfactory professional conduct under section 139B(1)(e)of the National Law in that the practitioner has contravened section 34A(4) of the Health Care Complaints Act 1993. PARTICULARS OF COMPLAINT THREE 1. On 7 May 2012 the practitioner was issued with a notice under s34A of the Health Care Complaints Act 1993 requiring him to provide certain information and documents to the Health Care Complaints Commission on or before 5 pm on 18 May 2012. The practitioner without reasonable excuse failed to comply with this notice. 1. In his statement filed in these proceedings the respondent conceded that he had received the notice which is the subject of this complaint. He said that he did not produce the documents "because I was advised that the Notice to Produce is invalid" allegedly on the advice of someone from the Attorney General's Department. He asserts that he was told that such a notice had to be issued by a court or by a tribunal. We do not know what information the respondent gave, to have received such advice. 2. In mitigation, the respondent said that he had produced, at least, one document of the patient records of one nominated patient, he had disposed of certain other records and had declined to produce the remainder because the HCCC was "fishing" or "merely exploring the issues against me in the absence of specific complaint." He had not taken independent legal advice. 3. In all the circumstances, we conclude that the respondent was in contumelious disregard of his obligations to produce the documents, and this constitutes unsatisfactory professional conduct. COMPLAINT FOUR Is guilty of unsatisfactory professional conduct under section 139B of the National Law in that the practitioner has: (i) engaged in conduct that demonstrates that the judgement possessed, or care exercised, by the practitioner in the practice of medicine is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience (ii) engaged in improper or unethical conduct relating to the practice or purported practice of medicine. PARTICULARS OF COMPLAINT FOUR 1. The practitioner exercised poor clinical judgment in his treatment of Patient AC in that he: i) Diagnosed a urinary tract infection on 22 June 2007 without a proper and sufficient clinical basis; ii) Diagnosed a urinary tract infection on 27 June 2007 without a proper sufficient clinical basis; iii) Administered intravenous ceftriaxone for treatment of a urinary tract infection on 22 June and 27 June 2007. 2. Between 2 July 2007 and 13 July 2007 inclusive Patient AC consulted the practitioner with a symptom of diarrhoea. The practitioner exercised poor clinical judgment and management of Patient AC symptom in that he: i. Failed to order stool microscopy and culture and blood celiac screening; ii. Failed to take a full medical history and/or obtaining previous medical records prior to the 'urgent' referral to the colorectal specialist Professor Solomon on 9 July 2007; 3. On 13 July 2007 the practitioner exercised poor clinical judgement in recommending the vaccination Gardisil in circumstances where the appropriate vaccination for a patient of AC's age, based on the current clinical guidelines, was Cervarix. 4. On 10 November 2007 the practitioner improperly terminated the patient doctor relationship with Patient AC following the receipt by the practitioner of two emails sent by Patient AC dated 9 November 2007 requesting information regarding the cervical cancer vaccination he had administered. 1. This patient gave oral evidence by telephone on 11 December 2014. She had written to the New South Wales Medical Board on 7 January 2008 expressing concerns about services provided to her by the respondent. She said in oral evidence that the details contained in that letter were correct. In the letter she stated that she had seen the respondent nine times during the period 21 June to 11 September 2007. She had responded to an advertisement and consulted with him on the basis that she would be bulk billed if she made appointments through his website. She said that during her first consultation she explained that she had felt run down and tired. The respondent took blood which he referred for pathology. During a number of follow-up consultations the respondent sold her or administered a number of medications. She found it unusual that she was not given a prescription for medication to be dispensed at a pharmacy and enquired at a local pharmacy where she found out that the drugs were about 25% cheaper than charged by the respondent for the same drugs he had provided to her. Thereupon she expressed concern to the respondent about this and thenceforth was given prescriptions. On the last occasion that she saw the respondent she said that he tried to charge for the consultation. He explained that he had changed his charge system. However he eventually charged her on a bulk billed basis. 2. In her letter, AC detailed the medication given to her by the respondent. She said that she was "upset and disgusted" by having being given a Gardisil injection. As she was aged over 27, she said in the letter that she should have been given another drug namely Cervarix. She said in evidence that she had been told this by her friends and had sought advice from another general practitioner. In her letter she said that she contacted the respondent to ask why she had been given Gardisil. She said he ignored this request but posted off a letter to her stating that he had terminated the patient–doctor relationship. She then requested a copy of the records which he sent to her by mail. 3. She complained in her letter that she had been "taken advantage of emotionally and financially. I feel I have wasted money on a variety of medications (for some of which Dr Quach was charging me substantially more than pharmacies and not providing a prescription until I questioned this.)" 4. In oral evidence, this patient conceded that she had limited recall of the details of the treatment given to her by the respondent. She was referred by him to a Dr Michael Solomons, a colorectal surgeon. She thought that this referral was for her coeliac condition, and she said that upon attending on Dr Solomons he indicated that he was unable to assist her for that condition because it was not within his specialty. She expressed disappointment at this. There is on the file of this patient provided by the respondent a letter from Dr Solomons which sets out the details of her consultation with him, and in view of her inability to recollect any specific detail of that consultation, we shall rely on the contents of that letter. 5. In oral evidence, this patient was adamant that at the time that she saw the respondent she was aged 29, nearly 30. She denied telling him that she was aged 27. 6. This patient was also adamant in the course of cross examination that she had been told by the respondent that she could have injections of both Gardisil and Cervarix, having injections of Gardisil first. She denied being given a choice by the respondent of which of these two medications should be administered to her. 7. This patient was adamant also that it was the respondent who terminated the patient relationship with her, once she had questioned him about the administration of Gardisil. It was at that stage that he sent her the letter of termination. At no stage did she ever tell him that she wanted to terminate the relationship. 8. The patient explained why she had felt that the respondent had taken advantage of her both emotionally and financially. She said that she had attended on him because she was feeling unwell and that he had manipulated her to extract money from her especially by providing medication at an inflated price. 9. A letter to the HCCC from solicitors, Tress Cox, then acting for the respondent, dated 25 February 2008 sets out a number of matters in response to the notification of the complaint by this patient. Attached to that letter is a complete clinical record of the treatment given to her by the respondent. 10. The respondent referred this patient to Dr Solomon by letter dated 9 July 2007. He said she had a family history of colitis, and had been experiencing bleeding from the rectum and diarrhoea. He thought she may have coeliac disease. Dr Solomon reported by letter dated 26 July 2007. He thought that this patient had suffered from a bout of gastroenteritis which had then completely resolved. He referred her to a gastroenterologist if she required further assistance with her coeliac condition. 11. There was attached to the letter from the solicitor's documentation concerning the use of Gardasil. 12. The solicitor's letter also referred to an injection of Ceftriaxone given on 27 June 2007, stating that it had an "immediate positive effect." We have in the evidence in these proceedings the Performance Interview Report of members of the interview panel constituted by the Medical Board following an interview with the respondent on 22 July 2008. The respondent had been asked about his treatment of "an afebrile patient diagnosed with a lower urinary tract infection (cystitis) with intravenous ceftriaxone." He informed the members of the panel that that drug was an intravenous form of the orally prescribed cephalexin which was often used in treating UTI. The members of the panel pointed out to him the possibility of an immediate anaphylactic reaction, that ceftriaxone is not an intravenous form of cephalexin but a third-generation cephalosporin reserved to treat severe infections, usually in a hospital setting, and that it was not a prudent practice to treat any common infection with the strongest available antibiotic. In response the respondent told the members of the panel that the patient had accepted the intravenous injection. He was reminded that she had done so only because of the advice that the respondent had given to the patient as to the medical need for that injection. For completeness, we note that the panel recommended that the respondent be considered for a Performance Assessment. 13. There is detail contained within the respondent's clinical notes concerning the circumstances in which the termination of the relationship with this patient occurred. On 9 November 2007 at 10:48 am the patient forwarded an email to the respondent asking whether she had received either Gardisil or Cervarix as a vaccine for cervical cancer. He replied by email at 3:21 pm that day that it was Gardisil. She responded one hour later by stating that "my Dr (regular GP) has informed me that I should have had Cervarix, as I am over 27 years old..?" On 10 November 2007 the respondent forwarded a letter to this patient under heading of "termination of patient –Dr relationship" in which he informed her that "it would be in your best interest to transfer your care back to your "regular" doctor. The doctor-patient relationship relies on mutual trust. You have expressed a lack of confidence to me…." 14. Based on the totality of the evidence available to us, and having regard also to the fact that the respondent declined to give evidence about this matter, it is inescapable that in all the circumstances the termination of the relationship between this patient and the respondent was initiated by the respondent. 15. Dr Young had available to him the respondent's clinical notes. In his written report, Dr Young questioned the diagnosis of UTI based on urinalysis alone and "without any apparent urinary symptoms" and said this was evidence of poor judgement and knowledge. The respondent had failed to exclude any other condition. He was also critical of the use of IV ceftriaxone which was "completely inappropriate and risky and not in keeping with any guidelines." This treatment was repeated a few days later. Dr Young was cross-examined at some length about the "impression" recorded by the respondent in his clinical notes that the patient was suffering from a UTI. The notes indicate that on examination made 21 June 2007 there was "abdominal tenderness – suprapubic." Dr Young said that the suprapubic is the bladder area, and that most of his peers would not include a physical examination of the bladder when testing for a UTI. Furthermore, there had to be some doubt about whether the patient had a UTI given her age, and a diagnosis based on a "dipstick" alone. The patient did not present with classic symptoms of a UTI. One of the samples of urine sent for pathology was contaminated and there was no evidence of a UTI. The diagnosis was incorrect on the basis of the urine testing which showed a mixed growth more commonly a coloniser with no white cells. He said that in all, the approach to this matter taken by the respondent was of a standard below what would normally be expected of a general practitioner of his experience and training. 16. Dr Young was also critical of the repeated tests for coeliac for this patient carried out within a short interval, both recording "weak coeliac." He thought that the respondent had failed to refer back to his earlier notes. 17. Dr Young also commented on the "grandiose statements" made in his notes about his treatment of this patient including "patient felt significantly better after injection". Dr Young said that it was impossible that IV antibiotics would clinically relieve the patient of symptoms so instantaneously. 18. In the same way Dr Young said that the respondent's management and investigation of this patient's diarrhoea condition disclosed evidence of poor judgement and knowledge. He failed to order a stool microscopy and culture including cysts ova and parasites and viral tests, nor sought to order a blood coeliac screening although his notes indicate that he considered that diagnosis. He thought that the referral to Professor Solomon in all the circumstances was "precipitous" and that it was significant that the diarrhoea had resolved completely by the time the patient saw that specialist. 19. The letter from the respondent's solicitors had sought to justify the use of Gardisil for patients over the age of 27 on the basis of a medical report to the effect that that drug might offer protection for women up to the age of 45. Dr Young commented that; "safe doctors are not early adopters; they follow guidelines of the day." 20. Finally, Dr Young was critical of the circumstances in which the respondent had terminated the relationship with this patient. 21. Dr Beran thought that the diagnosis by the respondent of a urinary tract infection was questionable as was the aggressive treatment with antibiotics before the diagnosis was confirmed. He also agreed with Dr Young that the suggestion by the respondent of an immediate response to intravenous antibiotics reflected poor clinical judgement. Likewise, he agreed with the criticism made by Dr Young that a number of tests should have been carried out. He thought that the respondent should have had the insight to inform this patient about the use of Gardasil. 22. In dealing with the circumstances of the termination of the relationship with this patient, Dr Beran seems to have assumed that it was terminated in effect by the patient by returning to her previous general practitioner for a second opinion, and he further commented that the termination may have occurred at the suggestion of or at least the support of the respondent's indemnity insurer. We observe that there is no factual basis for either of these assumptions. 23. In all the circumstances, there is sufficient evidence available to us on which we can be comfortably satisfied that each of the allegations made against the respondent has been made out, and we so find. We are also of the view that each and every one of them and in their totality constitute unsatisfactory professional conduct. COMPLAINT FIVE Is guilty of unsatisfactory professional conduct under section 139B of the National Law in that the practitioner has: (i) engaged in conduct that demonstrates that the judgement possessed, or care exercised, by the practitioner in the practice of medicine is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience (ii) engaged in improper or unethical conduct relating to the practice or purported practice of medicine. Background On 12 January 2008 the practitioner treated Patient TJ and Patient RJ aged 9 and 14 respectively. Both patients were visiting Sydney with their parents and had been referred to the practitioner by the Sebel Pier One Hotel where they were staying. On the morning of 12 January 2008 both patients awoke complaining of earaches. PARTICULARS OF COMPLAINT FIVE 1. On 12 January 2008 the practitioner exercised poor clinical judgment in his treatment of Patient TJ in that he: i) Failed to take a full history of Patient TJ regarding allergies, vomiting or diarrhoea; ii) Failed to take a swab of Patient TJ's left ear discharge; iii) Administered an intra-muscular injection of Cilicaine to treat otitis externa in the left ear and otitis media in the right ear; iv) Prescribed an adult dose of Augmentin Duo Forte in addition to prescribing Keflex. 2. On or about 12 January 2008the practitioner: (a) wrongly recorded that Patient TJ: "was put on penicillin orally yesterday- no effective" or in the alternative; (b) falsely recorded that Patient TJ: "was put on penicillin orally yesterday- no effective" 3. On 12 January 2008 the practitioner improperly charged the amount of $80.00 for the cost of the IMI Cilicaine (penicillin) administered to Patients TJ and RJ in circumstances where the actual cost of the medication was significantly less or nil if obtained from the practitioner's emergency drug supplies. 4. On 12 January 2008 the practitioner exercised poor clinical judgment in his treatment of Patient RJ in that he: i) Failed to take a full history of Patient TRJ regarding allergies, vomiting or diarrhoea; ii) Failed to take a history of or examine Patient RJ's febrile status; iii) Failed to examine Patient RJ's chest iv) Administered an intra-muscular injection (IMI) of Cilicaine to treat otitis media in the right ear; v) Prescribed an adult dose of Augmentin Duo Forte. 5. On or about 12 January 2008 the practitioner: (a) wrongly recorded that Patient RJ: "was put on penicillin orally yesterday- no effective" or in the alternative; (b) falsely recorded that Patient RJ: "was put on penicillin orally yesterday- no effective" 1. These matters were the subject of a written complaint by the parents of the patients made to the Medical Board by letter dated 3 March 2008. They complained of an excessive charge of $494 for a combined appointment of about half an hour at the Sydney surgery of the respondent for a condition of "swimmer's ear". In a written statement which became evidence in the proceedings the father said that on 11 January 2008 he had driven to Sydney from the regional area where the family lived with his wife and two sons to attend a family wedding. The wedding was to take place the following afternoon, a Saturday. He could not remember when his sons first complained about an earache. It was either around bedtime on the Friday night or first thing Saturday morning. The hotel staff arranged for them to see the respondent at 9:15 am on the Saturday. He accompanied his sons and was seen by the respondent after waiting 10 or 15 minutes. There was no discussion about how much the consultation would cost. The respondent checked the throat and ears of each of his sons and took their temperature. He cannot recall what was said during the consultation. He is aware, however, that the son, T had no allergies and had never suffered from asthma. The son, R does have asthma and uses Ventolin when required. Each of his sons was given a penicillin injection. 2. They attended the wedding and discussed the respondent's charges with a family member. They were told that the codes shown on their invoice would mean that the respondent had spent half an hour with one son and three quarters of an hour with the other. This was longer than the consultations had lasted. 3. A receipt issued for treatment to RJ is for a level C charge of $164 being a "surgery after hours AMA". In addition $40 is charged for the penicillin injection. The charge for TJ is $250 for a level D surgery after hours AMA together with the sum of $40 for the penicillin injection. Evidence tendered in the proceedings is to the effect that the cost of these injections to the respondent was less than this amount. 4. The condition of the boys did not improve and after returning home, they attended their local general practitioner. The father said that he had never spoken with the respondent other than when attending the surgery with his sons and denied speaking with the respondent by telephone informing him that they were better because firstly he had not done so, and secondly their condition had not in fact improved. 5. The father gave oral evidence. He referred to documentary evidence of details of his credit card payments and receipts. These, in conjunction with the records of the respondent show that TJ was seen at 9.38am and the bill was paid at 10.07 am. He was charged at a level D for item 44 which under the MBS schedule is for a consultation in excess of 40 minutes. 6. RJ was seen at 9.57 am and the bill was also paid at 10.07 am. He was charged at a level C, item 36 which is for a consultation between 20 minutes and 40 minutes. 7. To justify an item 44 fee, the schedule states that a history must be taken, plus a clinical examination, investigations to be arranged as required, and a management plan implemented in order to provide appropriate preventative health care. 8. In cross-examination, the father was adamant that neither of his sons saw a GP on the Friday, and denied that either of them had been given penicillin. It took between seven and eight hours to drive from the country town where they resided to Sydney. He did not recollect any conversation with the respondent about fees being charged at AMA rates. 9. The father said that neither son was given any apparatus to breathe into by the respondent and he did not discuss asthma with them. He was not given any documentation by the respondent about asthma. He said that neither son had symptoms of asthma at the time of their consultation with the respondent. RJ does suffer from asthma. There was no discussion with the respondent about the cost of the penicillin. 10. He denied that TJ improved significantly just after the injection. He denied phoning the respondent on the Sunday. He denied TJ looked "toxic". He was adamant that he did not spend a total of 60 minutes with the respondent. He was given no explanation nor was there any exploration of any strong family history of asthma. He also denied that he specifically asked for injections to be given. He said he had no opinion about the appropriate treatment and thought that his sons were suffering from swimmers ear. 11. In cross-examination the father also said that he had no recollection of his sons suffering from sore ears in the last three months. He also had no recollection of the respondent asking that his sons be brought back the next day. He said that he must have been given a prescription for more penicillin, because on the way back home the next day they stopped and had it filled. 12. It was put to the father in cross-examination that the time that he saw the respondent he had a beard. He denied this. 13. The father confirmed that the contents of his letter of complaint of 3 March 2008 were correct. 14. The mother of these patients also gave evidence. She said that they all travelled to Sydney on the Friday. Neither of her sons had seen a GP the day before and they were definitely not taking penicillin. She denied ever seeing the document about asthma which in cross-examination it was said that the respondent had given to the father. She said the first complaint of earache made by the boys was on the Saturday morning. She said that they were taken to see a doctor in Sydney because the boys were complaining of earache and they wanted it treated correctly to avoid the possibility of hearing loss. 15. She said that the boys were not too sick to go to the wedding. However they were miserable and she took them back to the room early. Their hotel was also the venue of the wedding. 16. The mother was not asked in cross-examination whether her husband had a beard at the time of his visit to the respondent. 17. The clinical notes of the respondent for each of these patients are in evidence. In the case of RJ, there is a note of OM (otitis media), and that he "has been using oral penicillin – no helping." There is note of a strong family history of asthma. On examination the throat and right eardrum were red, but the left eardrum was not red. There is a note of a peak flow of 400 recorded. It was noted that the father had Ventolin in his bag. There is note of a discussion about devices and that the father was given information on asthma and an asthma action plan. The patient was given a prescription for Augmentin Duo Forte tablets. 18. The clinical notes for TJ state that there is a persistent middle ear infection and sore throat. There is also a note that the patient was put on penicillin orally yesterday which was not effective. On examination the patient was said to have a red throat and right eardrum, an inflamed left ear canal and a left ear discharge. The notes state that he was prescribed both Augmentin Duo Forte and Keflex. There is also a comment that "patient should take Ventolin." 19. We have in evidence a Performance Interview report by members of an interview panel appointed by the Medical Board following an interview on 22 July 2008 concerning the respondent's treatment of these patients. In explaining the 40 minutes taken with T and 20 minutes with R, the respondent said that he had provided a "premium" service "by adequate explanation and exploration of the strong family history of asthma." He said that his notes did not reflect the content of such long consultations because he was "busier than usual on that particular day." He confirmed having described T as "toxic" in the absence of fever because this was his clinical impression. 20. The members of the panel concluded that the administration of the antibiotics by injection was not warranted. The respondent insisted that the father wanted the injections to be given and was reminded by the panel that this was only because of his advice as to the medical need for those injections. In terms of his charges the respondent said that there was a sign at his practice advising that he charged at AMA rates. The panel concluded that the respondent be considered for a Performance Assessment. 21. The respondent provided, through his solicitors, a response to the complaint made concerning these patients by letter dated 10 April 2008. In that letter the solicitors said; 1. The father was advised at the commencement of the consultation that a charge would be made at the recommended AMA rate and that he raised no objection 2. The history taken included a worsening middle ear infection for which oral penicillin had been prescribed 24 hours earlier with no effect plus a strong history of asthma. Because of this both patients had their peak flows measured by him. 3. The respondent provided the father with educational material regarding a Ventolin inhaler and management of asthma. The father was also given information about alternative treatments including the use of intramuscular injections of penicillin. 4. The respondent recommended intramuscular injection because of its "fast action, quicker absorption and metabolism" in the best interests of the health of the children. There was a significant improvement in each of the patients after administration of the injection. 1. Opinion evidence from Dr Young was available to the Tribunal, and he gave oral evidence and was cross-examined concerning the treatment by the respondent of these patients. 2. With respect to TJ, Dr Young was critical of the brief nature of the notes taken by the respondent concerning this nine-year-old patient. In particular there was no record of any pain relief having being used, whether the patient had been swimming or in a spa, of any allergies, vomiting or diarrhoea and of the dose type, frequency of use and total doses to date of the penicillin recorded. In making his diagnosis the respondent failed to perform any swab on the ear discharge and then prescribed a prescription for an adult dose of Augmentin, but does not explain in his notes why he changed this to Keflex. There was no attempt at correspondence with the usual GP about his intervention. 3. Dr Young was critical of the use of IMI penicillin, which he thought should only be used for a child who was vomiting and cannot absorb medication orally. He thought that for this patient's condition pain relief alone was all that was needed initially. Furthermore, "IMI penicillin does NOT cover the common causative organisms of otitis media." Even accepting that the patient had been seen by a GP within the previous 24 hours, it was possible that he had been prescribed Amoxyl, and therefore pain relief and another 24 hours on that medication would have been a safer, more prudent and less interventionist approach. 4. In the solicitor's letter to which we have earlier referred, the decision to change the script to Keflex was made because the respondent thought it was more effective in the treatment of skin infections, being what he thought was otitis externa suffered by this patient. Dr Young said that this condition can only be comparable to a skin infection when the causative organism is Staph Aureus and there is no notation as to whether the respondent was considering this. In fact, topical antibiotics or ear toilet with topical preparations are more appropriate for such a condition. He thought that the explanation proffered in the letter from the solicitors was "untenable" because there was no record of any evidence of pain on that side, modalities can be used to deliver painless topical treatment and the infection is the cause of the pain so that treating the infection would relieve the pain. 5. In all the circumstances, Dr Young said that the clinical care provided by the respondent to this patient fell significantly below the standard expected of a practitioner of an equivalent level of training and experience. 6. With respect to RJ, aged 14, Dr Young again found significant omissions from the clinical notes, of the same kind as noted earlier with respect to his brother. He was critical also that an adult dose of Augmentin was prescribed for this young patient without considering his weight and size. 7. As with TJ, Dr Young was concerned that there had been no attempt at correspondence with the usual GP about his intervention, and with the poor history and unsafe practices demonstrated by the respondent. He also found it improbable that there would be instant relief with an injection of penicillin as noted by the respondent. 8. In cross-examination Dr Young was adamant that there would never be any cause to inject either patient with intramuscular penicillin. If the respondent had appropriately concluded that any existing antibiotic was not working, he should have chosen a broad spectrum antibiotic. He would expect that the respondent should have been aware of the appropriate guidelines for treatment of these patients because they have not changed for decades, nor have the organisms involved. 9. Dr Beran thought that the history taken of RJ was inadequate, and he criticised the administration of an intramuscular injection. He agreed generally with the criticism of Dr Young. 10. Dr Timothy Peter Makeham is a specialist Otolaryngologist Head and Neck Surgeon practising in the ACT. He was retained by the respondent to give an expert opinion concerning the treatment of these patients. The preponderance of Dr Makeham's opinion as expressed in a report of 1 December 2012 is based on the supposition that each of these patients had attended on their local GP the day before consulting the respondent and had been administered penicillin. We reject this supposition, because it is clearly inconsistent with what is known, and is clearly inconsistent with the evidence of the father about what he told the respondent, which we accept in preference to that of the respondent who, it will be remembered, did not give evidence. 11. In oral evidence Dr Makeham was asked to assume that the patients had not consulted any GP the day before and had not been administered oral penicillin before consulting the respondent. In the circumstances he said that it was not appropriate to administer intra muscular antibiotics. He was asked whether he had ever seen a general practitioner administer intramuscular penicillin. He said that he had not, and that it was not competent to do so. 12. After carefully considering all of the evidence concerning this complaint, and having regard to the expert opinions of Drs Young, Beran and Makeham, which we accept, we are comfortably satisfied that the particulars of the complaint other than 4 (ii) and (iii) have been proven, and that each of them constitutes unsatisfactory professional conduct. We are also comfortably satisfied that, for the purpose of complaint six below, in the circumstances, the treatment afforded to these patients by way of intramuscular injection of penicillin constitutes professional misconduct. It demonstrates an inappropriate and unsafe approach to the treatment of a common condition, a lack of clinical knowledge and a poor approach to diagnosis. COMPLAINT SIX Is guilty of professional misconduct under section 139E of the National Law in that the practitioner has: (i) engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration, or (ii) engaged in 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. PARTICULARS OF COMPLAINT SIX The Particulars for Complaints One to Five above are relied upon and repeated, both individually and cumulatively. 1. For reasons which we have previously given we have expressed the opinion that some of the conduct of the respondent which we have found to have been proven to the requisite standard has constituted professional misconduct. Moreover, when we consider the totality of the findings which we have made in connection with each of the complaints 1 to 5, we are comfortably satisfied in the aggregate that the respondent is guilty of professional misconduct. The Second Notice of Complaint 382 This notice of complaint was in the following form: Take notice that the Medical Tribunal of New South Wales has received a complaint from the Health Care Complaints Commission following consultation with the Medical Council of New South Wales in accordance with sections 39(2) and 90B(3) of the Health Care Complaints Act 1993 and section 145A of the Health Practitioner Regulation National Law (NSW)("the National Law"); THAT Dr Michael Quach of 75 Camden Street, NEWTOWN NSW 2042("the practitioner'), being a medical practitioner registered under the National Law: COMPLAINT ONE Is guilty of unsatisfactory professional conduct under section 139B(1)(a) of the National Law in that the practitioner has: (i) engaged in conduct that demonstrates that the knowledge or judgement possessed, or care exercised, by the practitioner in the practice of medicine is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience PARTICULARS OF COMPLAINT ONE Background The practitioner was employed as a general practitioner at the Railway Street Medical Centre, Baulkham Hills ('the Medical Centre') between October 2011 and 8 March 2012. Patient KM Patient KM (aged 68 years) had a history of hypertension, coronary heart disease, dyslipidaemia, chronic obstructive pulmonary disease ('COPD'), asthma and gastro oesophageal reflux disease ('GORD'). Patient KM was taking the medication Lipitor to reduce his low density cholesterol. He also suffered from stiffness and joint pain. The practitioner saw Patient KM on multiple occasions between 14 October 2011 and February 2012. 1. During a consultation on 17 October 2011 the practitioner reviewed Patient KM's GORD treatment and subsequently examined his knee. The practitioner a) inappropriately and without sufficient clinical basis related stiffness and muscular pain in Patient KM's right knee to the Lipitor; b) inappropriately and/or without proper and sufficient clinical reasons ceased Patient KM's Lipitor. 2. The practitioner failed to perform an assessment of Patient KM's lung function during his consultations with Patient KM after 4 November 2011 in circumstances where he had checked peak flow technique on 4 November 2011 and given the patient an asthma action pain; or in the alternative, he failed to record the results of the assessment/s in Patient KM's medical records, in breach of Clause 7 and Schedule 2 of the Health Practitioner Regulation (New South Wales) 2010; 3. On 4 November 2011 the practitioner inappropriately referred Patient KM to an orthopaedic surgeon for a long-standing asymptomatic popliteal (Baker's) cyst, a condition which is usually managed conservatively. 1. In addition to the clinical notes of the respondent, we have available to us the expert opinions of Drs Young and Beran. 2. With respect to the first matter, Dr Young noted that the respondent recorded that the x-ray of the knee showed severe degenerative changes in the medial and lateral compartments. After an examination of the knee, the respondent recorded as his impression that Lipitor caused right knee muscular pain and limitation of knee flexion. On this basis he took the patient off Lipitor and substituted Ezetrol. Dr Young described the reasoning of the respondent as "bizarre." This was because a side-effect of Lipitor is generalised muscle aches, often proven by a raised CK disclosed on a blood test. However, this patient had been on Lipitor for many years. It could not have caused the patient's joint restriction. 3. Dr Beran agreed that there was no "cogent clinical relevance" to change this patient from Lipitor to Ezetrol. However he thought this was irrelevant because it did not impact upon the patient's' condition. 4. Although Dr Young agreed that the patient suffered no harm from the substitution of the new medication, the fact remains that there has been demonstrated a failure by the respondent to appreciate the nature and effect of possible side-effects of a drug which is widely prescribed in the community and a lack of appropriate reasoning process. 5. With respect to the second matter Dr Young noted a failure to record any assessment of the lung function of the patient. Even though he checked "peak flow technique" in November 2011, the respondent did not record a value. Dr Young said that good care of a patient with these lung conditions and asthma "would include regular spectrometry to assess baseline function, optimise function, and measure severity of acute lung episodes. Dr Quach is not following guidelines in his management of (the patient's) lung conditions. Treating asthma and CAL without measuring lung function is akin to treating hypertension without ever taking a blood pressure." 6. Dr Beran said that there was no basis to perform a lung function test. He thought that the respondent's conduct was consistent with his supervisors in the same practice. We prefer the opinion of Dr Young on this matter having regard to the care and detail which he has used in making this assessment and expressing his opinion. 7. With respect to the third matter, Dr Young thought that there was no necessity to refer this patient for a specialist opinion. He noted that an x-ray and ultrasound demonstrated the existence of a popliteal cyst with demonstrated calcification, indicating that it was long-standing. There was no record of this patient being bothered by the cyst. Dr Young said; "Most GPs know that a long standing asymptomatic (as this seems) popliteal…. Cysts (sic) is managed conservatively, NOT surgically by an orthopaedic surgeon." Hence there was no need for a referral. 8. Dr Beran was not critical of the respondent seeking a second opinion about the knee joint, given that he was a general practitioner. This was because not only did the patient have a Baker's cyst, but also had marked pain, and a degenerative condition. However, we note that the marked pain was muscular in origin, and that the degenerative condition was in the medial and lateral compartments of the knee. There was no indication that the cyst was responsible in any way for any symptoms being suffered by this patient. We prefer the opinion of Dr Young in this matter. 9. We find that each of these matters has been proven to the requisite standard and that each of them is indicative of unsatisfactory professional conduct. Patient AE On 3 March 2012 Patient AE (aged 13 years) presented with his mother to The Childrens Hospital Westmead ('CHW') where testing of pertussis ('whooping cough') was performed. The testing was not successful. Patient AE and his mother were informed by CHW that the relevant test could be performed by a general practitioner. Patient AE and his father consulted the practitioner on 5 March 2012 and requested the relevant testing. On 5 March 2012 the practitioner: 1. Refused to perform the correct nasopharyngeal PCR swab for whooping cough on Patient AE, preferring to conduct a throat swab test; 2. Failed to listen and appropriately respond to the parents' concerns when told that Patient AE had previously tested negative for asthma; 3. Inappropriately argued with Patient AE's father during the consultation and in doing so, failed to give adequate consideration to the father's wishes and/or respond to his concerns; 4. During the consultationdisagreement particularised above at [6], inappropriately threatened to audio record the consultation; 4. Formed a diagnosis of asthma without a proper or sufficient clinical basis including consideration of Patient AE's previous medical history and an assessment of Patient AE's lung function; 5. Failed to consider and communicate to Patient AE's father possible differential diagnoses such as 'post viral post pertussis cough receptor hypersensitivity' and 'psychogenic cough'. 1. The father of this patient gave evidence. When he attended with his son the respondent said that he might video or record the consultation, but this did not occur at the commencement. He was adamant that the respondent had said that it was impossible for his son to be suffering from whooping cough but gave no other explanation. It was straight after this that he had said that his son did not have asthma. He then rang his wife, spoke to her and confirmed from her that his son did not suffer from asthma. He then told the respondent this and it was then that the respondent said that he wanted to record the consultation. He said he was confused and angry and simply walked out of the consultation. 2. The father denied that he was ever told by the respondent to see a specialist, that he was given an inhaler and shown how to use it, given a prescription, told that he should decide whether to use the inhaler and his son given a lung function test. 3. The respondent made him feel uncomfortable. His son had had whooping cough twice and he wanted to make sure this did not happen again. He denied asking for referral to a specialist for asthma testing. He denied receiving any form from the respondent or his practice concerning billing. 4. Under cross examination the father said that his wife had complained the next day to the person in charge of the general practice, Dr Poulos. He was adamant that the respondent had refused to give any test for whooping cough and to take a swab. He said that the respondent looked down his son's throat but did not take any material. He said that he had later found out that his son did not have whooping cough, but was suffering from allergies. 5. He felt that the respondent's attitude to him was "arrogant". 6. This patient's mother also gave evidence. She is a registered nurse and practices in the area of respiratory conditions. She confirmed that she had taken her son to a paediatrician who confirmed that her son did not suffer from asthma. It was she who took her son to Dr Poulos in the same practice a few days later who conducted immunology and allergy testing which confirmed that her son did not have whooping cough and that his condition was most likely caused by allergens. 7. The controversy concerning asthma arose because the respondent, as is detailed in his notes, informed the father of the patient that it was unlikely that he would get whooping cough annually or recurrently but that he was likely to have asthma which would cause his coughing. The respondent strongly advised referral of the patient to a specialist. The clinical notes say that he was given symbicort and shown how to use it. 8. The patient records disclose that the respondent did, in fact, perform a throat swab on 5 March 2012, which was negative for whooping cough. 9. Dr Young was critical of the conduct of the respondent with respect to this patient. It appeared that the respondent had not taken a thorough history to establish exactly which swab was done at the hospital, he did not enquire about what testing had been undertaken for asthma when the father disagreed with his diagnosis, he failed to request any notes from the treating specialist about the asthma condition, and he failed to make any differential diagnosis such as post viral, post pertussis cough receptor hyper sensitivity and psychogenic cough. 10. In impulsively diagnosing asthma, the respondent did not ask about exercise or nocturnal symptoms, did not consider any lack of wheeze on examination and ignored the advice from the parents that previous testing for asthma had been negative. He did not perform a spirometry to measure lung function or consider a skin prick or allergy testing. Dr Young thought that from reading the clinical notes the respondent lacked empathy and that his tone seemed "authoritative and not particularly patient centred." 11. Dr Beran thought that it did not matter whether the respondent performed a nasal swab or a throat swab. He hypothesised about the diagnosis of asthma in a way which we do not find relevant or helpful. 12. We find each of these five particulars proven to the requisite standard. Individually and cumulatively they constitute unsatisfactory professional conduct. Patient MJ Patient MJ had a history of chronic mental issues including bipolar disorder and Asperger's syndrome. Patient MJ had recently experienced a fracture and subsequent surgical repair of his hand. On 19 January 2012 Patient MJ consulted the practitioner about pain in his hand and sinusitis. The practitioner demonstrated poor clinical judgement when he: 10. Failed to appropriately communicate, or attempt to communicate with Patient MJ during the consultation; 11. Formed an opinion that Patient MJ was at 'risk of self harm or harm to the public', based on a relatively brief interaction with Patient MJ and without carefully reviewing Patient MJ's notes and history, speaking to family members/friends of Patient MJ, consulting his practice colleagues and/or Patient MJ's treating psychiatrist. 12. Failed to consult his practice colleagues and/or Patient MJ's treating psychiatrist who were familiar with the patient's condition, demeanour and presentation, prior to calling the NSW Police requesting that the patient be found and scheduled under the Mental Health Act 2007; 13. Inappropriately left Patient MJ alone in the treating room in circumstances where Patient MJ had become upset and responded aggressively during the consultation and the practitioner was concerned that Patient MJ was seriously mentally unwell. 1. It appears from the clinical notes of the respondent that this patient, during the course of an interchange, began to act in a manner which the respondent thought was aggressive. Whilst other medical practitioners in the same practice no doubt had had some dealings with this patient, this was the first time that the respondent had seen him. Based on the evidence available, we are unable to conclude to the requisite standard that any conduct whether by way of act or omission of the respondent is deserving of criticism, because the incident appears to have occurred within a brief period of time, and the respondent could be justified in leaving the patient alone, albeit temporarily, whilst he sought assistance from the practice manager. Whilst Dr Young was critical of the respondent for having impulsively called the police, and for the way in which he handled this matter generally, we are of the opinion that the conduct so criticised cannot be constituted as unsatisfactory professional conduct. Patient IP Patient IP (aged 20 years) presented with her mother on 6 March 2012, complaining of vomiting and a sore throat. The practitioner 14. Told Patient IP and her mother that a sore throat was a sign of a smoker, despite Patient IP informing the practitioner that she had never smoked; 15. Incorrectly diagnosed Patient IP with a middle ear infection, linking this diagnosis to the patient's exposure to cigarette smoke four days prior; 16. Ordered pregnancy testing in circumstances where Patient IP had informed him that she was a virgin; 17. Failed to consider an alternative diagnosis such as a 'gastro' virus; 18. Failed to listen, communicate, understand and/or appropriately respond to Patient IP during the consultation. 1. A statement from this patient is evidence in the proceedings. She said that she had been a patient at the Railway Street Medical Centre for most of her life. When she first saw the respondent complaining of a sore throat, he asked whether she was a smoker. She said that she had never had a cigarette in her life. The respondent responded that "these are signs of a smoker." When she told the respondent that her father smoked, he said that that was probably why she had a sore throat. She said "I felt like he didn't believe me and he thought I was a smoker." 2. On 6 March 2012 the patient went to the centre because she was vomiting and feeling very sick. She later went into the respondent's consulting room and told him that she had been vomiting for roughly the last 12 hours. The respondent asked her mother to leave the room. When the patient protested he insisted that the mother leave. The respondent then told the patient that he thought she was pregnant. She replied that she could not be because she was a virgin. He said "do you come from a Christian family?" She said that she did not but "I just don't believe in sex before marriage." She thought that it was a strange question for a doctor to ask her. 3. The respondent wrote out a blood test form and handed it to her and told to go to the practice nurse for a blood sample to be taken. The referral also included a request for pregnancy testing. She discussed this with the mother and decided to leave the practice. 4. She attended another general practitioner later that day, Dr Judy Watt. Dr Watt told her that there was a gastro bug going around. Dr Watt's clinical records noted that this patient was menstruating. The patient was given some tablets to calm her stomach and she recovered within a few days. 5. In his clinical notes of 6 March 2012 the respondent confirmed that the patient had denied that she was pregnant and said that she was a virgin, and then he recorded "own belief." Having examined her throat and eardrums he also noted his impression that cigarette smoke exposure had caused a middle ear infection. 6. We have already referred to the statement of Dr Jeong made in connection with his supervision of the respondent. It will be recalled that he said that in the course of a conversation with the respondent about this patient that the respondent denied that he accused her of being sexually active or that he had suggested she was not telling the truth. Dr Jeong then pointed out to him that he had made reference to her denial of pregnancy in his clinical notes and that he had ordered a pregnancy test. 7. Dr Young thought that a conclusion that exposure to cigarette smoke could cause an ear infection was "odd and non-conventional". He thought that the respondent showed little evidence of insight into the patient-doctor relationship, and into the complexities and delicacies of discussing the sexual proclivities of a young patient. 8. Dr Beran could not see any basis for any connection between a middle ear infection and exposure to smoking. In the same way, he would not have advocated a pregnancy test. He thought that "it would seem" that the respondent did not trust the patient. No explanation is given as to any basis for this mistrust. 9. Dr Beran said that "it is impossible to explain" why gastroenteritis and gastrointestinal infection were not considered by the respondent. Nevertheless, Dr Beran thought that the conclusion by Dr Young that the respondent had failed to listen, communicate, understand and/or appropriately respond to this patient during the consultation was "unduly harsh." We do not share this opinion of the conclusion of Dr Young. We find to the requisite standard that all of these matters in connection with this patient have been proven, and each of them, and all of them cumulatively can be characterised as unsatisfactory professional conduct. COMPLAINT TWO is guilty of professional misconduct under section 139E of the National Law in that the practitioner has: (iii) engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration, or (iv) engaged in 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. PARTICULARS OF COMPLAINT TWO The particulars for Complaint One above are relied upon and repeated, both individually and cumulatively 1. We have found in connection with a discussion of complaint 1 that in a number of significant situations that the respondent was guilty of conduct significantly below a reasonable standard as explained in section 139B(1)(a). They cover a variety of circumstances including a failure to diagnose and mis-diagnosis of a number of common conditions, a misunderstanding of the side effects of medication commonly used, a failure to carry out appropriate testing and a failure to display empathy and understanding of the needs of patients and to communicate with them appropriately. All of these matters in the aggregate are indicative to us that the respondent has serious failings and inadequacy in the practice of medicine and is guilty of professional misconduct. COMPLAINT THREE Has an impairment with the meaning of section 5 of the National Law in that the practitioner has a mental impairment, disability, condition or disorder which detrimentally affects or is likely to detrimentally affect his capacity to practice medicine in that he suffers from: (a) Narcissistic personality disorder PARTICULARS OF COMPLAINT THREE 19. The matters alleged in a Complaint signed by the Director of Proceedings on 8 May 2013 are relied upon in support of the complaint of impairment. 20. Additionally, the Particulars for Complaints One and Two above are relied upon and repeated, both individually and cumulatively. COMPLAINT FOUR Is not competent to practice the profession under section 139 of the National Law as the practitioner does not have sufficient mental capacity, knowledge and skill to practice the profession PARTICULARS OF COMPLAINT FOUR 21. The practitioner suffers from an impairment as particularised in Complaint Three above. 22. The practitioner's impairment is of a sufficient nature and degree to impair the practitioner's mental capacity to practice the profession. 23. The matters alleged in a Complaint signed by the Director of Proceedings on 8 May 2013 are relied upon in support of this complaint. 24. Additionally, the Particulars for Complaints One and Two above are relied upon and repeated, both individually and cumulatively. 1. Complaints numbers 3 and 4 are each based on an alleged impairment, specified as a narcissistic personality disorder. In order to consider these matters it is first necessary to have regard to expert psychiatric evidence and certain other evidence given in the proceedings. Dr Andrew Pethebridge 1. Dr Pethebridge is a qualified practising psychiatrist. He was initially retained by the Medical Council of NSW to furnish an opinion and gauge the relevance of a recent Practice Assessment and reports that Dr Quach had made to AHPRA on the abilities of a number of other medical practitioners, in the context of his potential exit from the Health Program. Dr Pethebridge had been supplied with a number of documents. He first met with Dr Quach on 20 May 2011, for a period of three hours and 15 minutes. He prepared a report on 27 May 2011, although the date on the report is mistakenly noted as 27 March 2011. 2. In his discussions with the respondent Dr Pethebridge noted that he "minimised some of these behaviours, avoided talking about other aspects of his history until he was directly asked and he was unable to explain some of his behaviours and concerns as they were "so long ago" and he had "forgotten" significant aspects of his history. The nature of these minimisations and forgetting were to create an image of a personal history in which his behaviours were coherent and not related to paranoid ideation." He found no evidence of current paranoid delusions. 3. Dr Pethebridge questioned the respondent, inter alia, about the report that he had made concerning Dr Jammal, accusing him of speaking gibberish and other matters. The respondent said that on the basis of these observations and his obesity, he came to the diagnosis of substance use. He said that he had seen lots of marijuana patients like this and was not able to consider any alternative diagnosis. Dr Pethebridge was concerned that this was evidence that the respondent may come to premature diagnoses in his day-to-day clinical work. 4. Dr Pethebridge thought that in his concerns about the conduct of Dr Nespolon, about whom he had already made a complaint, the respondent exhibited some paranoia but this did not reach "delusional intensity." He thought there was some history of a number of incidents which possibly met the criteria for a brief psychotic disorder when the respondent's paranoia clearly became delusional but there was no evidence of symptoms of paranoid illness during the interview. In reaching this conclusion Dr Pethebridge relied in part on the earlier reports of Doctors Samuels and Phillips. 5. In considering the respondent's premature diagnostic conclusions, Dr Pethebridge thought that there were two explanatory characteristics. The first was an inability to self reflect and the second his narcissism. He thought that the respondent expressed narcissism around his clinical practices and abilities that were greater than mere pride in his work. In this he agreed with comments of Dr Phillips. An inability to self reflect feeds into an inability to move beyond an initial clinical impression. He thought that narcissism could also explain the respondent's strong negative response to the Practice Assessments and the reason why he reported a number of doctors following the release of the report. Narcissism could explain some of the unusual clinical practices of the respondent and his charging practices and could make the respondent a difficult person to work with in a group practice. As a solo practitioner he thought the respondent was "likely to develop diagnostic and therapeutic practices that are unusual if not unique." Notwithstanding this, he did not believe that at that stage the respondent was impaired as defined in the National Law. 6. The next report from Dr Pethebridge is dated 29 April 2012 and results from a 30 minute interview conducted on 26 March 2012. Dr Pethebridge had received a number of additional documents. Dr Pethebridge noted that there was limited rapport established with the respondent. He was told that the respondent had ceased working in his solo practice in the Rocks in September or October 2011 and started working under level 2 supervision at the Railway Street Medical Centre, Baulkham Hills. He nominated his supervisors as Doctors Jeong and Poulos. The respondent described his time with this practice in positive terms. He denied any personal or professional complaints or difficulties in the practice or with supervision. Dr Pethebridge records; "He believed that his relationships with staff and the other doctors were good and that there had been no patient complaints. The only reason that Michael was aware of for the termination of his supervision was that one of the supervisors had over committed himself." 7. We observe that even though the supervision reports and the letter confirming termination of supervision may not be replete with the details contained in the statements made by each of the supervisors, to which reference has been made earlier in these reasons, it is clear that the version given by the respondent to Dr Pethebridge is at odds with what Dr Jeong said to the respondent at the time that the relationship was terminated, as disclosed in his statement. For reasons which we have earlier advanced, we do not accept the version proffered by the respondent to Dr Pethebridge as being true. 8. In his report Dr Pethebridge gives some insight into the frequent meetings that the respondent had with his treating psychiatrist, Dr Yvonne Skinner. He said that together they were looking at his communication skills. 9. On this occasion Dr Pethebridge noted that the respondent was less forthcoming with information. He said that; "Despite this I did not feel that this was driven by any paranoid ideation but rather an acute awareness of the fact that we were meeting to provide this report." Dr Pethebridge was also cognisant of the stress which the respondent had experienced in recent times including participation in the section 150 hearings and changes in the nature of his clinical practice. He thought that the respondent remained at risk of a further episode of clinically significant paranoid illness but felt that this risk alone was not sufficient to identify the respondent as an impaired practitioner. 10. The third report is dated 27 December 2012 and follows an interview of 30 minutes one week prior. By that stage, Dr Pethebridge had received copies of some of the supervisors reports. 11. Dr Pethebridge was only able to establish minimal rapport. He said that there was "no evidence of overt paranoid ideation. There was no evidence of any risky or aggressive ideation." The respondent described the circumstances of his termination from the Botany medical practice as arising out of a dispute about guaranteed minimum salary. The respondent told Dr Pethebridge that he then joined the practice at Newtown where he then currently worked and which overall he enjoyed. 12. The final report from Dr Pethebridge is dated 16 June 2013 and was provided to the HCCC by way of an independent expert report in relation to complaints made against the respondent. For the purpose of providing this report Dr Pethebridge had been furnished with additional documentation. At the time of providing this further report Dr Pethebridge had also given oral evidence in the section 150 proceedings against the respondent. 13. In the course of this further report, Dr Pethebridge expressed the following opinions; 1. He believed that the respondent would only participate in supervision if he were compelled to do so. The benefit of that participation was limited because the same "problematic themes emerge" across three practices over a period of months of supervision. He thought that on this basis the respondent's behaviour would not change with a further period in similarly structured supervision. In coming to this conclusion Dr Pethebridge noted recurrent themes of poor communication skills with patients, including a lack of empathy, the high likelihood of diagnosing asthma even when the clinical situation or history did not support this, a tendency to blame the patient if a complaint was made, and significant difficulty in accepting or acknowledging negative feedback from supervisors. 2. Some of the clinical practices of the respondent were idiosyncratic, as disclosed in patient audits. It was possible that his clinical behaviour might improve with supervision, particularly if he acknowledged the supervisor as having specialist expertise. However "the repetitive pattern of supervisor comments indicates that some of his other behaviours…. are less likely to respond to further supervision." 3. The respondent had a Narcissistic Personality Disorder based on a number of criteria. These were a grandiose sense of self-importance, interpersonal exploitation, a lack of empathy, a belief at times that others are envious of him and his achievements and his arrogant and haughty behaviour. 4. At times the respondent may have met diagnostic criteria for a brief psychotic disorder, based solely on the documents provided. 5. The respondent is impaired within the meaning of section 5 of the National Law. There were 3 ways in which his narcissistic personality structure "has and will detrimentally affect his capacity to practice medicine." Firstly he is likely to make premature diagnostic decisions and not consider any differential diagnoses. This was based on particular instances contained in the statements of supervisors and others. Secondly "he has and will be likely in the future to ignore or neglect patients that disagree with him." This was based on a statement of a supervisor. Thirdly "His interpersonal manner will be significantly disruptive to the doctor-patient (and doctor-carer) relationship." He instanced the high frequency of patient complaints, and his reported use of derogatory comments about patients in file notes and conversations with staff. 6. "While not per se impairing, Dr Quach has shown himself to have difficulties accepting negative comments from peer supervisors and auditors. He frequently responds by attacking those who make negative reports of his abilities." He instanced the reports of misconduct made by the respondent to AHPRA. 7. "If Dr Quach were to experience a further episode of brief psychosis his behaviour would without doubt place patients at risk". 8. There is no evidence that over time there has been any positive behavioural response to the support and psychiatric treatment provided to the respondent. 9. A change in the clinical behaviour of the respondent in the medium to longer term "is highly unlikely". He cited a US authority to the effect that narcissistic patients provide "enormous challenges to therapists." It is necessary that through treatment they achieve some degree of empathy, can partially replace their envy with admiration, and begin to accept that others are separate individuals with their own needs. 10. The respondent is impaired and is likely to continue to be impaired "for a considerable period of time." It is apparent from the statements of the supervisors that the respondent "has no insight into his behaviour and limited clinical abilities. Without insight, change is unlikely to develop." 11. He had no concerns about the respondent's academic capabilities. But, "I do have concerns about Dr Quach's ability to consider differential diagnoses before he fashions a diagnosis and management plan…. his inability to respond constructively to complaints or direction from peers and his underdeveloped skills in the doctor-patient…. relationship." 12. He believed that the respondent lacks competence to practice medicine. "Given his limited response to the supports and treatments that have been in place for some years it is clear that the minimum requirement has not yet been achieved." 1. Dr Pethebridge gave oral evidence, including cross examination. He was initially taken to the transcript of the section 150 Proceedings heard on 18 September 2012 in which he had given oral evidence. At page 45 of that transcript the following response was given by Dr Pethebridge to a question asked of him as to whether the respondent suffered from a personality disorder: "Yes – well, no, I don't believe that he has a narcissistic personality disorder. I do think that he has a very strong narcissistic personality structure, which is a technical difference between a personality – with a personality disorder, in that a personality disorder would make it even harder for him to function. I think he has enough self-knowledge that he is able to function in very tightly-controlled environments, environments that he has control over." 1. In evidence before us, Dr Pethebridge said that he wanted to correct this passage. He referred to the circumstances at the practice at Newtown when the respondent was discovered privately billing all of the WorkCover patients. Up to that time, Dr Pethebridge thought that the respondent had narcissistic traits, but the termination of that employment moved the respondent to being characterised as suffering from a disorder. A disorder is indicative of difficulties with relationships. 2. It was put to Dr Pethebridge that the supervision reports from the Kaleen practice, which were more sympathetic to the respondent might alter his opinion. Dr Pethebridge was of the opinion that the supervision reports from the three previous practices disclosed serious difficulties and inadequacies, and that a period of a few months at this latest practice was not sufficient indication of any marked improvement. He also took into account that the supervision was conducted as part of a tightly controlled practice. 3. Dr Pethebridge denied that Dr Skinner had modified the respondent's ability to interact with patients, even though she had said that she was taking him through that process. In order to achieve modification there needs to be acknowledgement by the patient of a difficulty in relating to others and a willingness to engage in therapy. With Dr Skinner the respondent had undertaken behavioural therapy but he had not undertaken dynamic therapy. 4. Dr Pethebridge was asked to explain why he thought that some aspects of the respondent's practice were dangerous or could be dangerous. He pointed to problems identified in the various practice audits, which had been made available to him. He mentioned in particular the patient the VK who had travelled alone with an allergy condition, and patient AC who have arguably been given the wrong vaccination. Furthermore, the respondent had no respect for the abilities of the practice assessment panel as shown by the complaints that he had made about each of the doctors. 5. Dr Pethebridge was asked a number of questions by Dr Giuffrida concerning the elements of a narcissistic personality disorder. He said this occurred when there was a breakdown in behaviour which adversely affects the patient. In the case of the respondent this went to his impairment and his capacity to practice. The condition is more than eccentricity, it is a dysfunction. His diagnosis had evolved over time after he had an opportunity to interact with the respondent and consider a number of episodes. It was the termination at the Newtown practice that first made him think that the respondent had a disorder. This caused him to look again at the reports of the supervisors with respect to the respondent's interactions with them and with patients. Elements of the dysfunction include the way someone communicates. Most relationships evolve and change over time and we develop patterns of behaviour. However, there is no flexibility in this development with a person who has a personality disorder. Such a disorder is enduring and inflexible and because of its rigidity and structure it can be resistant to intervention. The disorder impacts on the perception of a person about situations and about how he or she comes to conclusions. The personality itself will cloud a person's world view. Therefore such a person is apt to make incorrect interpretations, and will always be suspicious. This creates an impairment of cognition and in logical reasoning. Such a person will always be suspicious that others will want to cut them down, and they will be jealous. They jump to early conclusions and remain fixated on these. This is a function of their cognitive impairment. For example, "I think the patient has illness A – I am such a great doctor – the person must have illness A". All of these observations made by Dr Pethebridge as set out above are, in our opinion, of critical importance in evaluating whether complaints 3 and 4 are made out. 6. Dr Pethebridge also said that such a disorder could be part of a larger constellation and there could be an overlap with paranoia. Someone with a narcissistic personality disorder can perceive the world as glorifying them, or as a threat with ulterior motives and such a person may start to become paranoid. This is the originating source of paranoia. Anyone who has complained about such a person or has been critical of him is clearly inferior and not worthy of the criticising conduct. Such a person will have an adverse effect on others, for example a particular patient critical of the respondent would be seen as unworthy. He would create a defence by reason of his personality disorder. 7. Dr Pethebridge gave a number of examples of the respondent's narcissistic personality disorder. He instanced the allegation made to the young girl that she was pregnant. He thought that the behaviour of the respondent was bizarre. 8. Dr Pethebridge was uncertain about whether the respondent would recover from such a disorder. He would need to be willing to become involved in intense therapy and he would need to be under very close supervision. Dr Pethebridge would have expected some improvement over the last five years. However, there has been no significant change and he has not responded to any treatment given to date. Dr Jeff Bertucen 1. Dr Bertucen is a consultant psychiatrist. He was retained by AHPRA to express an opinion about the respondent's capacity to practice medicine in the ACT. He saw the respondent on 7 March 2014 and furnished a report of 17 March 2014. 2. We note with interest that in the history taken, the respondent "works as a medical General Practitioner, most recently in Kaleen ACT however has applied to work in a new practice in Weston Creek". He stated that "the doctors there, (in Kaleen) supported the removal of my conditions but nonetheless I outstayed my welcome." It seems that Dr Bertucen did not pursue with the respondent the circumstances in which his engagement at Kaleen came to an end. 3. Dr Bertucen had available to him documentation and took a history from the respondent. The report of Dr Bertucen does not set out any details concerning the circumstances in which the engagement of the respondent in the three Sydney practices came to an end, although we understand that he had information about this. He thought that he was able to establish rapport with the respondent who "was in some respects a competent historian" although he noted that there were several instances where the respondent was deliberately evasive and was perhaps withholding information under the guise of poor recall. He was unable to detect any formal thought disorder, evidence of psychosis, self-harming ideation and features of elevated mood/hypomania. 4. Dr Bertucen did not consider the respondent to be suffering from any psychotic disorder and disagreed with the opinion of Dr Pethebridge. He relied on the opinion of Dr Skinner. He thought that the respondent "has elements of a narcissistic, somewhat immature and sheltered personality style…. His irritability with patients and dislike of being "challenged"…. Is more suggestive of the hyper defensiveness of narcissism rather than a paranoid phenomenon." 5. He did not think that the respondent still constituted a professional risk and relied heavily on the supervisor reports of Doctors Morton and Wessel at Kaleen. He was prepared to recommend that all restrictions be removed and that the respondent be allowed to resume unsupervised general medical practice within the ACT. 6. In oral evidence, Dr Bertucen said that the respondent had certain shortcomings but did not suffer from a psychiatric condition and was not impaired. He was not impressed by the "sweeping statements" of Dr Poulos, and preferred to rely on the more positive statements of the more recent supervisors reports. 7. However, Dr Bertucen stated firmly that his opinion was based solely on his impression that the respondent could practice medicine "safely". He did not take into account the relationships that the respondent had with his patients. Even though the respondent was deliberately evasive, had narcissistic personality traits, was irritable with patients and resisted challenges this did not constitute a disorder because they lacked the degree of disruption that a disorder creates in aspects of a person's life. He said that in other areas, the respondent's relations with his family and his partner seemed okay. Therefore he was not suffering from a generalised disorder because any impact on his functions do not extend beyond his patients. We understand this observation concerning his family relationships to have been a significant matter in the formulation of his opinion. There is no reference in the report of Dr Bertucen to any attempt to ascertain the nature and extent of the respondent's family relationships, and it may be that Dr Bertucen accepted the respondent's bare assertion at face value. 8. Dr Bertucen agreed that the 90 minute episode with patient AS when he refused to help her to her wheelchair showed lack of empathy. He agreed that the respondent was vulnerable and sensitive to criticism, for example in the case of patient AC. He agreed the respondent was interpersonally exploitative in the manner in which he had charged patient AS. Nevertheless, Dr Bertucen stressed that before a diagnosis of a disorder could be made it was necessary to identify five of the traits listed in the DSM manual, and he was unable to do so. 9. Dr Bertucen was able to express this opinion having seen the respondent once only for a period of 90 minutes. 10. Dr Bertucen conceded that Dr Pethebridge was in a more privileged position than he having seen the respondent on three occasions, but he relied on the more recent favourable supervisors reports which to him suggested a benefit from recent criticism. 11. In response to some questions from Dr Giuffrida, Dr Bertucen agreed that in making an assessment in psychiatry, it was necessary to rely heavily on corroborative evidence, particularly in the case of this respondent. He was asked about the instances referred to in his report about whether the respondent was being either deliberately evasive or unable to recall events. Dr Bertucen said that these were "relatively infrequent." It was also put to Dr Bertucen that other psychiatrists had encountered the same areas of difficulties with the respondent and that there seemed to be a consistent pattern of him trying to minimise or colour events. This was particularly so in the circumstances where he had left a number of practices. However, Dr Bertucen denied that this tendency of itself could be the manifestation of a personality disorder. He relied on the opinion of Dr Skinner that there was no evidence of any psychotic disorder. 12. It was put to Dr Bertucen that there was a pattern of difficulties on the part of the respondent in working in practices, in his dealings with supervisors and individual patients, particularly as he appeared to have lost a number of patients. This was indicative of a practitioner unable to form a therapeutic relationship with patients and treat them. Dr Bertucen agreed with this, agreed that this was indicative of an impairment as defined but rejected this notion because he relied on the more recent supervision reports. Even though the respondent had certain inappropriate traits, they did not impact upon his ability to practice safely. Finally, Dr Bertucen rejected any suggestion that there was a pattern of the respondent leaving practices after a short period of time in circumstances where he had encountered difficulties. Dr Yvonne Skinner 1. Dr Skinner has been the treating psychiatrist of the respondent from 31 August 2009 and up to at least 28 March 2013. The handwritten clinical notes had been made available as part of the evidentiary material in these proceedings. We have read them. They are brief, consisting of a few lines only covering what we assume were substantial consultations. They consist of notes of what the respondent has told her during the course of the consultation. We do not detect any attempt on the part of Dr Skinner to evaluate the behaviour and conduct of the respondent, particularly in terms of any difficulties encountered by him in the course of the conduct of his practice. Whilst we appreciate that there may be constraints on what Dr Skinner can appropriately reveal to third parties so as to protect the integrity of her relationship with her patient, nevertheless there is nothing contained in the clinical notes and only the brief opinion expressed by Dr Skinner which will assist us in evaluating or understanding any psychiatric or other condition experienced by the respondent. 2. Dr Skinner never appears to have addressed her mind to the possibility of whether or not the respondent suffers from a narcissistic personality disorder, nor whether he displays narcissistic traits. Her focus of attention for the purpose of reporting to any relevant authority is whether or not the respondent suffers from a psychosis. 3. We do note, however, that in the course of giving evidence in the section 150 proceedings Dr Skinner agreed that personality disorder by definition is very difficult to treat and a paranoid personality disorder is probably almost impossible to treat. The Position of the Respondent 1. The respondent conceded that he was impaired, having so been found during the course of the section 150 proceedings. He denied, however, that he was impaired by reason of a narcissistic personality disorder. The Use of the Supervisors' Reports 1. The reports of the supervisors of the respondent were all admitted into evidence without objection. As will have been seen from the discussion of the expert evidence of a number of witnesses, including Doctors Young and Beran, and Doctors Pethebridge and Bertucen the material in these reports and other ancillary material dealing with matters pertaining generally to the respondent's background and his practice of medicine have all formed part of the general matrix of evidence against which expert opinions have been expressed. Those expert opinions have in turn been assessed by us in determining the outcome of these proceedings. 2. When the proceedings commenced we raised with counsel for the HCCC the fact that the various complaints contained within each of the notices of complaint made no reference at all to the content, in particular, of the supervisors reports which have formed such an integral part of the basis upon which each of the psychiatric experts has expressed an opinion. The complaints, and in particular complaints numbers 3 and 4 with which we are presently dealing refer back to the circumstances of each of the named patients contained in both notices of complaint. We were informed that the content of the supervisors' reports was relied upon by way of background information and corroboration of the evidence adduced with respect to each of the named patients. No objection was raised to this response by counsel for the respondent. 3. In a strict sense, the material contained within the supervisors' reports is not specifically referred to as justifying any of the findings adverse to the respondent which the HCCC seeks in these proceedings. However, the proceedings have been conducted on the basis that the contents of the supervisors' reports have been admitted into evidence and have been fully debated by both parties, without objection. Indeed, in submissions, the respondent relied heavily on the supervisors' reports from the last two practices in the ACT in which the respondent worked. They have formed an integral part of the proceedings. There could have been no doubt in anyone's mind that the contents of the reports of all of the supervisors were matters that were taken into account by the several experts whose opinions became evidence in the proceedings and would therefore be taken into account by us in determining the outcome of these proceedings. See King v Health Care Complaints Commission [2011] NSWCA 353 (22 November 2011). Consideration Narcissistic Personality Disorder 1. We reject the opinion of Dr Bertucen that the respondent does not suffer from a narcissistic personality disorder. His emphasis on the ability of the respondent to practice "safely" places undue emphasis on recent brief supervisors' reports over a period of a few months, and ignores the serious concerns for the safety of patients reflected in the more detailed supervisors reports from the first three practices, the circumstances in which the respondent's services were terminated, and the comprehensive criticisms of Dr Young concerning the inability of the respondent to practice medicine safely. 2. We prefer the methodical, structured and cautious manner in which Dr Pethebridge set out an evolving discussion which ultimately pointed to a diagnosis of narcissistic personality disorder. We accept the reasoning process of Dr Pethebridge and his diagnosis. For completeness we also accept the establishment of the factual basis upon which Dr Pethebridge came to his conclusion as having been established to the requisite standard in the course of these proceedings. 3. We are comfortably satisfied that the respondent suffers from a narcissistic personality disorder. The nature and extent of that disorder has been described in the evidence of Dr Pethebridge which we have previously set out. 4. DSM IV sets out a number of diagnostic criteria for narcissistic personality disorder. Those which have been identified by Dr Pethebridge as applying to the respondent are as follows; "Has a grandiose sense of self-importance (e.g. exaggerates achievements and talents, expects to be recognised as superior without commensurate achievements) Is interpersonally exploitative, i.e., takes advantage of others to achieve his or her own ends Lacks empathy: is unwilling to recognise or identify with the feelings and needs of others Is often envious of others or believes that others are envious of him or her Shows arrogant, haughty behaviours or attitudes" Impairment 1. It is next necessary to consider whether the respondent has an impairment as defined in section 5 of the National Law which we have earlier set out. Relevantly, the finding incorporates a determination that the respondent has a mental impairment …..that detrimentally affects or is likely to detrimentally affect his capacity to practice in the medical profession. By reason of section 150F of that legislation, a finding of impairment is dealt with as a complaint, and comes before this Tribunal accordingly. The power to suspend or cancel registration consequent upon a finding of impairment as defined in the Act must be based on the Tribunal being satisfied that the respondent is not competent to practice as a medical practitioner (see section 149C(1)(a)). Although Dr Pethebridge has expressed the opinion that the respondent is impaired, it is necessary for this Tribunal to make that finding for itself. 2. The manner in which the respondent's capacity to practice medicine has been affected by his narcissistic personality disorder has been described by Dr Pethebridge in his evidence, which we have summarised above, but which we set out below for easy reference; 3. There were 3 ways in which his narcissistic personality structure "has and will detrimentally affect his capacity to practice medicine." Firstly he is likely to make premature diagnostic decisions and not consider any differential diagnoses. This was based on particular instances contained in the statements of supervisors and others. Secondly "he has and will be likely in the future to ignore or neglect patients that disagree with him." This was based on a statement of a supervisor. Thirdly "His interpersonal manner will be significantly disruptive to the doctor-patient (and doctor-carer) relationship." He instanced the high frequency of patient complaints, and his reported use of derogatory comments about patients in file notes and conversations with staff. 4. We accept these observations and adopt them for the purpose of our findings concerning complaints 3 and 4. There are many instances in the evidentiary material which support these observations, and the five nominated indicia of a narcissistic personality disorder. The evidence reveals that the respondent has had a consistent pattern of problems in communicating with patients and with his peers, and especially his supervisors. There is also demonstrated a clear inadequacy in his flexibility in dealing with others, especially concerning queries about diagnosis and appropriate treatment raised by patients, supervisors, practice auditors and even delegates of the Council who discussed a number of matters with him in the course of formal enquiries. It is clear on the evidence that the respondent has perceived that his diagnosis and the treatment regime which he formulated was always correct. He consistently rejected any suggestions to the contrary made by patients, supervisors (with some minor exceptions), practice auditors and Council delegates. We instance his advice given to patients generally that calcium channel blockers and statins were harmful, and his incorrect understanding of the effect of Lipitor on patient KM. He has demonstrated an overly authoritarian and disparaging approach to the treatment of AS. This is abundantly clear from his own notations and comments contained within his own clinical notes concerning this patient. (eg not the nurse of AS, AS is required to be compliant to my advice). His level of charges for this patient, and the circumstances in which they were raised is indicative of a view of his own self-importance which cannot be justified. There was also a tendency to distort the truth when explaining to supervisors the circumstances in which he came to cease work at the last practice, and the circumstances in which practice conditions had been imposed. (See, for example, the statements of Drs Jeong and Hoang and the advice through his solicitors that Drs Jeong and Poulos could no longer supervise him, and that the termination at Botany came from an ongoing disagreement). He clearly lacked empathy for a number of his patients, and was dismissive of their concerns. Evidence of this can be seen from the statement of Dr Jeong, his many interactions with AS, and his termination of the relationship with AC. His behaviour in making complaints to AHPRA concerning the many medical practitioners with whom he became involved, and to DOCS about the father of TJ and RJ, was bizarre. 1. We emphasise that the material set out above is not intended to represent an exhaustive examination of all of the evidence. For example, the respondent has given evidence and made explanations in the course of earlier enquiries and performance assessments which corroborates the material set out above. We have already set out the effect of this evidence earlier in these reasons. Overall, the evidence is indicative that the respondent suffers from an impairment in his cognitive and logical reasoning ability that is likely to detrimentally affect his clinical practice, and the capacity to be supervised effectively over a period of time longer than a few months to maintain him in safe clinical practice. 2. Having regard to the particular matters referred to above as well as our general understanding of the effect of the totality of the evidence given in these proceedings, we are comfortably satisfied to the requisite standard that the respondent is detrimentally affected and likely to be detrimentally affected in the practice of medicine by reason of his narcissistic personality disorder. His ability to practice medicine has been severely compromised, weakened and damaged because of the impact of his narcissistic personality disorder on his ability to diagnose appropriately, create appropriate treatment regimes, relate appropriately to patients, relate appropriately to his peers, and otherwise conduct himself in a manner appropriate to standards of behaviour expected within the community of medical practitioners. 3. We therefore conclude that complaint 3 has been made out. Complaint 4 1. As we understand the particulars given in connection with this complaint, it is confined to the mental capacity of the respondent to practice medicine. In broad terms the complaint asserts a lack of competency to practice medicine because the respondent does not have sufficient mental capacity, knowledge and skill to do so. However the particulars contained in paragraphs 21 to 24 seems to confine the extent of the complaint. Para 21 alleges an impairment as particularised in complaint 3. That impairment is therefore confined to a narcissistic personality disorder. By para 22 the impairment is alleged to be of a sufficient nature and degree to impair the mental capacity of the respondent to practice medicine. Confined in this way it excludes any consideration of the knowledge and skill of the respondent as impacted upon by the impairment. Accordingly, the reliance on the matters alleged in the first notice of complaint, and complaints 1 and 2 in this notice of complaint, seem to be confined to a consideration of the impact of the narcissistic personality disorder on the mental capacity of the respondent to practice medicine in terms of whether this constitutes an impairment. 2. In these circumstances, it seems to us that the matters that fall for our consideration in determining whether this complaint has been made out are the same matters that we considered in connection with complaint 3. Having been comfortably satisfied that complaint 3 has been made out, it must follow that we reach the same conclusion concerning complaint 4, for the same reasons. We find that this complaint has been made out. Order 1. The proceedings are stood over to 10 am on 10 April 2015 for further hearing, on which date we shall hear evidence and submissions concerning the stage 2 process. I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar 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 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: 05 February 2015