Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Marino [2016] NSWCATOD 37 Hearing dates: 10 February 2016, 23 February 2016 and 9 March 2016 (submissions) Date of orders: 05 April 2016 Decision date: 05 April 2016 Jurisdiction: Occupational Division Before: F Marks ADCJ, Principal Member Dr J Davidson, Professional Member Dr A Reid, Professional Member Hon. Prof. P Macneill, General Member Decision: The Respondent is found guilty of unsatisfactory professional conduct and professional misconduct. The proceedings are stood over for stage 2 hearing on 26 April 2016. Catchwords: Health practitioner – statement of patient not called to give evidence admitted- allegations of sexual and other misconduct- findings of unsatisfactory professional conduct and professional misconduct. Legislation Cited: Health Practitioner Regulation National Law (NSW), ss139B, 139E Health Practitioner Regulation (NSW) Regulation 2010 Cases Cited: Briginshaw v Briginshaw (1983) 60 CLR 336 Texts Cited: Good Medical Practice: A code of conduct for doctors in Australia, Medical Board of Australia Category: Principal judgment Parties: Health Care Complaints Commission (Complainant) Dr Giuliano Marino (Respondent) Representation: Counsel: R Mathur (Complainant) P Griffin SC (Respondent) Solicitors: Health Care Complaints Commission (Complainant in person) TressCox Lawyers (Respondent) File Number(s): 1520170 Publication restriction: Non publication order with respect to Patient A REASONS FOR DECISION 1. In these proceedings the Complainant, the Health Care Complaints Commission seeks findings of unsatisfactory professional conduct and professional misconduct against the Respondent, Dr Giuliano Marino. By agreement with the parties, the proceedings are to be dealt with in a two-stage process. This Decision deals only with the stage 1 process, namely whether the Respondent is guilty of the conduct alleged against him. In the event that he is found guilty of such conduct, the nature and extent of consequential protective orders will be determined after a stage 2 hearing, fixed for 26 April 2016. 2. The Complainant brings four complaints against the Respondent, all arising out of his treatment and relationship with a patient known, for the purpose of these proceedings, as Patient A. By the Notice of Complaint the Complainant: HEREBY COMPLAINS THAT Dr Giuliano Marino ("the practitioner") of 15 Burns Street, CAMPSIE NSW 2194 being a medical practitioner registered under the National Law, COMPLAINT ONE is guilty of unsatisfactory professional conduct under section 139B(1)(a) and (b) of the National Law in that the practitioner has: i. engaged in conduct that demonstrates the knowledge, skill or judgment 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; and/or ii. contravened the Health Practitioner Regulation (New South Wales) Regulation 2010. Background In 2013 the practitioner was employed as a locum medical officer in the Emergency Department at Bankstown Hospital. On 1 August 2013 the practitioner had professional contact with Patient A when she presented with vomiting to the Emergency Department ('ED') of Bankstown Hospital. Patient A had a history of borderline personality disorder, depression and substance and alcohol abuse. PARTICULARS OF COMPLAINT ONE 1. On 1 August 2013 the practitioner failed to adequately assess and treat Patient A's clinical presentation in circumstances where he failed to adequately consider or exclude a possible diagnosis of hypovolaemia secondary to fluid or blood loss, possible gastrointestinal bleeding or gastritis, or a cause for the new complaint of shoulder pain. 2. On 1 August 2013 the practitioner inappropriately prescribed oxycodone (20 x 5mg tablets), a Schedule 8 drug of addiction to Patient A, together with a single take home dose of oxycodone 5mg, in circumstances where he, a) failed to adequately assess and treat Patient A's presenting symptoms; b) failed to adequately investigate Patient A's complaint of shoulder pain; c) failed to exercise responsible medical judgment as to whether it was appropriate to issue such a prescription and/or provide a take home dose. 3. The practitioner failed to keep an adequate record of Patient A's presentation to the ED and acted contrary to clause 7 of the Health Practitioner Regulation (New South Wales) Regulation 2010, by not recording, a) an assessment of the reason for the tachycardia or dizziness; b) any inquiry as to the possibility of blood in the vomit; c) any detail of a physical examination of the abdomen or right shoulder. COMPLAINT TWO is guilty of unsatisfactory professional conduct under section 139B(1)(a) and (l) of the National Law in that the practitioner has: i. engaged in conduct that demonstrates the judgment 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; and/or ii. engaged in improper or unethical conduct relating to the practice or purported practice of medicine Background The background for Complaint One is repeated. On the evening of 1 September 2013 Patient A presented with back pain to the waiting room of the ED. Patient A stood outside the waiting room smoking a cigarette when she recognised the practitioner leaving the ED. PARTICULARS OF COMPLAINT TWO 1. Between approximately 11pm on 1 September 2013 and 6am on 2 September 2013 the practitioner failed to maintain proper professional boundaries in that he, a) agreed to drive Patient A home from the ED; b) accepted Patient A's invitation to go inside her home for coffee; c) inappropriately engaged in sexual contact with Patient A whilst at her home. 2. On 2 September 2013 the practitioner failed to maintain proper professional boundaries whilst at Patient A's home in that he, a) disclosed personal details to Patient A, such as his age and the suburb where he lives; b) inappropriately asked for Patient A's mobile telephone number. 3. Between 2 and 22 September 2013 the practitioner failed to maintain proper professional boundaries in that he made 1 telephone call and sent 9 text messages to Patient A. COMPLAINT THREE is guilty of unsatisfactory professional conduct under section 139B(1) (a) and (l) of the National Law in that the practitioner has: i. engaged in conduct that demonstrates the knowledge, skill or judgment 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; and/or ii. engaged in improper or unethical conduct relating to the practice or purported practice of medicine. Background The background for Complaints One and Two is repeated. PARTICULARS OF COMPLAINT THREE 1. On 4 September 2013 the practitioner inappropriately prescribed diazepam (25 x 5mg tablets), a Schedule 4D drug to Patient A in circumstances where, a) the prescription was given in response to Patient A's request and without a medical consultation; b) the practitioner sent the prescription by post directly to Patient A's home address; c) the practitioner issued the prescription without appropriate clinical assessment, including a medication history, to determine if Patient A was using a similar drug or abusing benzodiazepines, or had other contra-indications. COMPLAINT FOUR 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 the suspension or cancellation of the practitioner's registration PARTICULARS OF COMPLAINT FOUR 1. Complaints One, Two and Three and the particulars thereof are repeated and relied upon both individually and cumulatively. 1. During the course of the proceedings the Complainant provided further particulars of the complaints, particularly with respect to the narration under (i) in each of complaints numbered 1, 2 and 3. With respect to complaint 1, the Complainant did not rely on any of this material to the extent that it concerned Particular 3. With respect to complaint 3, the Complainant confined these particulars to the Respondent's judgement and his exercise of care. 2. For the purpose of the proceedings, the Respondent made a number of concessions. These are as follows: 1. He conceded the accuracy of the background information with respect to Complaint 1, save that he stated that he was not aware of the history of Patient A set out therein. 2. In connection with Complaint 1, he admitted particulars 2(c), 3(a) and (c). 3. With respect to Complaint 2, he agreed with the background information contained therein. 4. With respect to Complaint 2, he admitted particular 3. 5. With respect to Complaint 3, he asserted that this occurred on 1 September 2013, and admitted on that basis, particulars 1(a) and (c). 1. It will be seen that the Respondent conceded that he assessed, examined and provided certain treatment to Patient A on 1 August 2013 in the Emergency Department of the hospital. He further conceded that he again encountered this patient on 1 September 2013 outside the waiting room to the Emergency Department. The Respondent vehemently denied the allegations that he had driven the patient to her home and engaged in sexual conduct with her. He did concede that between 2 and 22 September 2013, he made one telephone call and sent nine text messages to this patient and, in doing so, he failed to maintain proper professional boundaries. 2. In essence, there were two principal areas of factual controversy in the proceedings. The first covered the nature and extent of the examination of Patient A conducted by the Respondent on 1 August 2013 and the treatment and advice which he proffered to her. The second covered the nature and extent of the Respondent's subsequent relationship with the patient and whether or not all of the allegations contained within the several complaints had been made out to the appropriate standard. The Standard of Proof 1. Before commencing our examination of the evidence given in the proceedings, it is appropriate to set out the relevant principles which will govern our determination of the factual issues. The principles themselves are not controversial, but their application may cause difficulty, as is the case in these proceedings. 2. It is generally accepted that we are required to be "comfortably satisfied" that the matters in the complaints have been established on the balance of probabilities. The well-known principles established in Briginshaw v Briginshaw (1983) 60 CLR 336 apply. At 361 – 363 Dixon J, as his Honour then was, said: Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences. Everyone must feel that, when, for instance, the issue is on which of two dates an admitted occurrence took place, a satisfactory conclusion may be reached on materials of a kind that would not satisfy any sound and prudent judgment if the question was whether some act had been done involving grave moral delinquency. Thus, Mellish L.J. says: "No doubt the court is bound to see that a case of fraud is clearly proved, but on the question at what time the persons who have been guilty of that fraud commenced it, the court is to draw reasonable inferences from their conduct" (Panama and South Pacific Telegraph Co. v. India Rubber, Gutta Percha, and Telegraph Works Co.). In the same way, in dealing with the question in what county the publication of a criminal libel had taken place, Best J. said: "I admit, where presumption is attempted to be raised, as to the corpus delicti, that it ought to be strong and cogent; but in a part of the case relating merely to the question of venue, leaving the body of the offence untouched, I would act on as slight grounds of presumption as would satisfy me in the most trifling cause that can be tried in Westminster Hall" (R. v. Burdett). It is often said that such an issue as fraud must be proved "clearly", "unequivocally", "strictly" or "with certainty" (Cf. Mowatt v. Blake; Kisch v. Central Railway Co. of Venezuela Ltd.;Lumley v. Desborough). This does not mean that some standard of persuasion is fixed intermediate between the satisfaction beyond reasonable doubt required upon a criminal inquest and the reasonable satisfaction which in a civil issue may, not must, be based on a preponderance of probability. It means that the nature of the issue necessarily affects the process by which reasonable satisfaction is attained. When, in a civil proceeding, a question arises whether a crime has been committed, the standard of persuasion is, according to the better opinion, the same as upon other civil issues (Doe d. Devine v. Wilson; Boyce v. Chapman; Vaughton v. London and North Western Railway Co.; Hurst v. Evans; Brown v. McGrath;Motchall v. Massoud; Nelson v. Mutton; Gerder v. Evans; sed quœre as to the statement of Swift J. in Herbert v. Poland see, further, Wigmore on Evidence, 2nd ed. (1923), vol. v., p. 472, par. 2498 (2) (1)). But, consistently with this opinion, weight is given to the presumption of innocence and exactness of proof is expected. (citations omitted) 1. Briginshaw involved a consideration of the proof of adultery in family law proceedings. We find the following observation of Dixon J of assistance, albeit that it is applied to considerations of adultery at 368-369: Upon an issue of adultery in a matrimonial cause the importance and gravity of the question make it impossible to be reasonably satisfied of the truth of the allegation without the exercise of caution and unless the proofs survive a careful scrutiny and appear precise and not loose and inexact. Further, circumstantial evidence cannot satisfy a sound judgment of a state of facts if it is susceptible of some other not improbable explanation. But if the proofs adduced, when subjected to these tests, satisfy the tribunal of fact that the adultery alleged was committed, it should so find. 1. We shall return to these matters when considering what weight is to be given to the statement of patient A, admitted as evidence in the proceedings. The Factual Background The hospital investigations 1. These proceedings have their genesis in a complaint made by Patient A to a clinician at the hospital where she had attended the Emergency Department and had met the Respondent. An investigation was carried out by an investigation officer employed by the Local Health District, who interviewed a number of staff, and reviewed records from the Emergency Department. 2. The matter was ultimately reported to the Complainant in these proceedings. Statements were obtained by the Complainant's investigating officer from: * Patient A, and her mother and neighbour; * Dr A. Amiano, a Psychiatric Registrar of the hospital who was familiar with Patient A and her medical condition; * Theresa McMahon, a nurse manager at the hospital. 1. The Complainant also had available to it statements and other documentation obtained by the Local Health District investigator and records of interviews conducted by that investigator with Rachel Heffernan, a clinical nurse specialist employed at the hospital and Dr Sue Ieraci, a Senior Staff Specialist in the Emergency Department at the hospital. 2. The above documentation became evidence in these proceedings. 3. In addition, there were also in evidence a number of letters and other written material furnished by the Respondent to the Complainant. 4. The Complainant retained Dr Sally McCarthy, a specialist Emergency Physician, to provide an expert opinion concerning certain aspects of the conduct of the Respondent in providing treatment to Patient A. Her report became evidence in the proceedings and, in addition, she gave oral evidence and was cross-examined on behalf of the Respondent. 5. In addition to the above material, there was made available to us other documentation which, to the extent relevant, we shall describe during the course of these reasons for decision. 6. The Respondent gave oral evidence including cross examination by the Complainant. The Statement of Patient A 1. Patient A gave a written statement to the investigator employed by the Complainant which is dated 13 March 2014. That statement contains significant details covering the circumstances in which she first encountered the Respondent, a subsequent meeting with the Respondent, and the alleged sexual encounter. There are additional details concerning an exchange of telephone numbers, and further communications between them by text and by telephone. She said that a few days after that encounter a prescription for 25 diazepam tablets written out by the Respondent on hospital letterhead was sent to her in the mail. 2. The mother of Patient A also gave a written statement to the Complainant. This statement is dated 12 August 2014. She said that about a year previously she was driving past her daughter's house when she noticed a "nice looking car parked in the driveway." In the course of a conversation with her daughter, Patient A is alleged to have said that the car belonged to a doctor working in the Emergency Department at the same hospital. The mother said that she saw the same car in the driveway "on one other occasion soon after this, maybe a few days later." 3. At the commencement of the hearing, counsel for the Complainant stated that Patient A would not be available to give oral evidence concerning the statement which she had given. She sought to have the statement admitted into evidence for the purpose of the proceedings notwithstanding the unavailability of the witness. In support of this application, there was tendered a medical certificate of the treating General Practitioner of Patient A stating that the patient suffered from: ..severe anxiety with major depression. She can't represent in front of the court…… I confirm that her mental and Psychological condition deteriorates very rapid with any changes at her environment or exposure to any health stress. There is additional documentary material available to us concerning the overall state of health of Patient A. In summary, this patient was well-known to the hospital, has a long history of personality disorder and alcohol and other substance abuse and has presented on a number of occasions after an overdose or other attempts at self harm. Information provided by a Psychiatric Registrar was to the effect that this patient "has had a number of casual affairs with various different men over the years." She had previously attended the hospital after one of those relationships had broken up. Other information provided by health professionals and by the investigator is to the effect that Patient A was under considerable stress by reason of the investigations being conducted arising out of the allegations made against the Respondent and the proceedings which had been instituted. There is evidence that she personally had wished to withdraw the complaint because of the stress which she was encountering. 1. We should add for completeness that although the mother of Patient A had given a statement to the investigator, the Respondent said she would not be called by the Complainant to give evidence in the proceedings. No reason was proffered. We do not take into account anything contained in this statement. 2. It was the position of the Complainant that, in all the circumstances, the statement of Patient A should be admitted into evidence, and that we should determine what weight we should give to it in circumstances where she would not be available to give evidence orally. Senior Counsel for the Respondent resisted this application. In essence, his inability to cross-examine this witness in circumstances where the Respondent denied having any sexual contact with the patient, and indeed being in her home at all, would put the Respondent at a severe disadvantage which was incapable of being rectified. It was also submitted that the certificate from the General Practitioner was insufficient to found any medical basis for the inability of Patient A to give evidence and, in all the circumstances, a specialist opinion should be sought. 3. We determined in reasons delivered orally to reject the submissions of the Respondent and to allow the statement of Patient A to be received for the purpose of the proceedings, but reserving any consideration as to the weight to be given to it. We were satisfied on the basis of the certificate given by the General Practitioner, corroborated by the other material as to the health of Patient A, that requiring her to give evidence would have had an adverse impact upon her health. We were also satisfied that it was appropriate to receive the statement subject to the caveat as to the weight to be accorded to it, because there were a number of matters of detail contained within it which were independently corroborated by documentary and other evidence. We shall return to these matters later in these reasons for Decision. Patients A's assertions re her interrelationship with the Respondent 1. In her signed statement dated 13 March 2014, Patient A said that she had first seen the Respondent in the "fast track" area of the Emergency Department at the hospital because she had "spat up some black tar stuff." He was unable to identify the material. She then told him that she had ongoing problems with her shoulder and back and asked him to check her shoulder. She had said that she was usually given Tramadol or Diazepam by her GP. The Respondent did not examine her shoulder but asked her whether she wanted some opioid medication. He gave her a prescription for Oxycodone and one Oxycodone tablet to take home with her that night. She then left the department. 2. Patient A said that she had returned to the Emergency Department some few weeks later for back pain. She said that she had "waited for hours." Around 11pm she was standing just outside the entrance to the Emergency Department when she saw the Respondent coming out of the department. He was carrying a briefcase. She approached him, asked whether he remembered her and whether he could do her a favour by giving her a lift home because it was dark and she did not want to walk home. She said that he agreed, and that she walked with him to his car which was a two-door, "red or maroon Alfa Romeo. I'm pretty sure it was manual. It was parked outside the hospital car park, down a side street." She said that he drove her to her house and she asked him whether he wished to come in and have a coffee. She said there was a conversation about the brand of coffee and he asked for a short black. After talking for a while she asked him whether he wished to lay down in the bedroom and he agreed. They then went to her bedroom, watched television from the bed and talked. She said that he told her that he was 32 years old and had studied for seven years and lived in Campsie, and was working casually at Bankstown and Sutherland Hospitals. There was then a discussion in which she asserted that the Respondent told her she was beautiful and had sex appeal. They then had consensual oral sex. Later, during the night she complained that her back was hurting her and asked whether he could give her a prescription for Diazepam. She said that he agreed to write out a prescription and send it to her in the mail. They remained in bed talking until about 4am when she slept. She said that in the morning between 6 and 7am the Respondent left the premises but, before doing so, she had given him her mobile number. He did not give her his mobile number at that stage and she did not ask for it. She said that he told her he would call her in a couple of days. 3. She said that a few days later she received a text from the Respondent stating that it was "Julian" from the hospital and that he would send the script in the mail. She received an envelope in the mail a day or two later containing a prescription for 25 Diazepam tablets which she had filled. She said that she received three or four further text messages from the Respondent over about a week including statements to the effect that he should come over and give her more relaxation techniques. He also sent her a text saying that he was busy. She said that she replied saying that it would be nice if he came over again. She endeavoured to call him on a number of occasions but he did not answer his phone and she was unable to leave any message for him. She said that when she realised that he was not interested in seeing her again she deleted all his messages from the phone and his contact details. Nurse Heffernan 1. In her written statement made to the Complainant's investigator on 1 April 2014, Rachel Heffernan said that she had been employed as a Clinical Nurse Specialist in mental health at the hospital since August 2012. On the morning of 7 September 2013 she was asked to review Patient A who presented to the Emergency Department with an intentional overdose of tablets ingested the previous evening. The patient was well known to her having a principal diagnosis of borderline personality disorder, with concurrent polysubstance and alcohol abuse. On questioning, Patient A said that she had overdosed because of having felt rejected by a doctor from the Emergency Department with whom she had had sex, and who was now ignoring her phone calls. The narration of the conversation which Ms Heffernan said that she had had with Patient A is, in general terms, consistent with the contents of the statement which Patient A had given to the investigator and which we have summarised above. Later that morning, as Patient A was waiting outside the Emergency Department for a taxi, she showed Ms Heffernan some text messages on the phone. Ms Heffernan said: I saw three separate messages from "Julian". I don't recall the exact wording of these text messages, but one of them stated that a script had been sent to her, and the other messages contained the phrases "give you some more relaxation therapy" (or something like that) and "I am free during the days". 1. It was the impression of Ms Heffernan that although Patient A had: ...a significant personality disorder and emotional instability, I feel that she was being truthful, frank and honest with me about this incident, mainly because her story stayed consistent the whole time. I believe she genuinely felt rejected by the doctor. This was the main issue for her, rather than any malice towards the doctor. To me, this was a genuine response from someone with borderline personality disorder. (Patient A) has always been pretty upfront with me, and I feel that I know her quite well. 1. Ms Heffernan had prepared a statement for the Emergency Department Team Leader which she had written immediately after the patient was discharged and appears to have been signed by her on 7 September 2013. That statement refers to Patient A having shown her three text messages on her phone from "Julian" but does not indicate the circumstances under which, and at what time Ms Heffernan saw them. That statement also refers to Ms Heffernan having interviewed Patient A for a period of approximately 45 minutes in the company of Dr A Amiani, who was the Psychiatric Registrar at the hospital at the time. Dr A Amiani 1. Dr Amiani gave a written statement to the Complainant's investigator dated 1 April 2014. She said that she interviewed Patient A on 7 September 2013 in the company of Ms Heffernan. She was familiar with the patient who was a well-known client, and had "a principal diagnosis of borderline personality disorder. She also has multiple social issues." Again, the narration concerning Patient A as contained in this statement is consistent with the contents of the statement made by Patient A. In her statement, Dr Amiani said that Ms Heffernan had access to the text messages on Patient A's phone during the course of their interview with her. She said that Ms Heffernan read some of the messages out aloud, and one of them mentioned a prescription for Diazepam which had been posted. She was unable to view the text messages personally, but was told about them later by Ms Heffernan. 2. Prima facie, there is some inconsistency in the versions concerning the circumstances in which the existence and content of the text messages between patient A and the Respondent were revealed to Ms Heffernan and to Dr Amiani. However, we do not regard this inconsistency as detracting from acceptance of the overall evidence of both of these witnesses to the effect that there were text messages sent by the Respondent to Patient A whose contents are consistent with the evidence of Patient A as contained in her written statement. On this basis, there exists some independent corroboration concerning the content of the text messages as asserted by Patient A. The Hospital Records In Relation to the Respondent 1. The hospital records relating to the shifts worked by the Respondent at the hospital as a Locum Medical Officer indicated that he first worked there on 29 January 2013 but the majority of his shifts were in July and August 2013. Relevantly, for the purpose of these proceedings he worked the following shifts: 1 August 2013 2 PM to 12 AM 28 August 2013 2 PM to 12 AM 1 September 2013 11 AM to 11 PM 3 September 2013 10:30 PM to 8:30 AM 1. There is no record of the Respondent working on 6 or 7 September 2013. He last worked at the hospital on 8 September 2013. 2. Hospital records indicate that the Respondent dealt with only six patients on 1 August 2013. Patient A was the fourth of these patients. The previous patient was seen at 4:55pm suffering from fever and was admitted to the ward. Patient A was seen by the Respondent at 7:44pm. The last patient that day was seen at 8:34pm. Accordingly, on the face of the hospital records there was a three-quarter hour interval during which the Respondent was able to obtain a history, examine, and afford treatment to Patient A. Admittedly, this does not take into account any attention that the Respondent was required to direct to any patients seen earlier that day, but given the clinical records there is no indication that he would have been troubled to any extent by any of these prior patients. 3. Hospital records also indicate that the Respondent worked a shift on 1, 3, 4 and 8 September 2013. The records also indicate that he saw his first patient on 3 September at 7:48pm, and that patients seen on 4 September at 2:05, 5:18 and 6:36am were seen as a continuation of the 3 September shift. He then worked on 8 September. 4. There are also in evidence records produced from the electronic records of access to patients in the hospital. These indicate that between 1 August 2013 and 4 September 2013 the Respondent accessed the records of Patient A on 56 occasions. These included access on 4 September 2013 commencing at 5:39am and concluding at 5:40am. This was a day when the Respondent did not treat Patient A. It is possible that many of these incidents of access to the records, because of the short interval, represented in some way a continuing period during which access was enabled. 5. The Respondent signed a code of conduct on 28 July 2012 which applied to his engagement in facilities operated or managed by New South Wales Health. Included within the code of conduct was a provision dealing with professional relationships with patients or clients. This precluded, inter alia, engaging in online friendships, and engaging in any sexual relationship. The Respondent's Communications with the Complainant 1. There are in evidence written exchanges between the Complainant and the Respondent concerning the circumstances surrounding this matter. The Complainant wrote to the Respondent on 10 February 2014 setting out in brief terms the complaints alleged against him. He responded by letter dated 18 February 2014, pointing out firstly that receipt of that letter was the first indication of the particulars of a complaint, and that it would be necessary for him to respond from memory because he did not then currently have a copy of his discharge summary which he had prepared for the particular patient. 2. He said that he had treated a patient by that name in early August 2013 and assumed that this occurred on 1 August. He said from memory: …she was triaged for nausea and vomiting and abdominal pain. I saw her in the subacute/fast track section...... during an evening shift. I took a medical history and examined her, taking approximately 15–20 minutes...... To my best recollection, the symptoms turned out to be quite benign and chronic, and previously investigated without significant finding of abnormality. My intention was to discharge her but she went on to mention that she was also suffering acute-on-chronic right shoulder pain. She had a history of right shoulder problems, and she had hurt it again recently. She requested analgesia for this. After a discussion about the problem, the various possible investigations and treatments, I provided her with a single script for Oxycodone (20 tabs), and a referral for an outpatient right shoulder ultrasound scan. I do not recall what analgesia or other treatment was given to the patient in the department. She was then discharged from the Department. That was the only script for opiates medication I have ever given her. He denied any further contact with her that evening. 1. The Respondent then referred to the only other contact with this patient, which was immediately following a shift on 1 September 2013. He said that he was exiting the Emergency Department waiting room when the patient called out to him. She said that she had come to the Emergency Department to obtain a prescription for Diazepam as she had run out. She was leaving because of the large crowd in the waiting room. She asked if he would provide her with the script. She informed him that she was familiar with the medication and side-effects. He said he believed that she was safe to use it, he went back inside the Department and wrote out a single script for Diazepam. They walked out together and spoke. She asked for his telephone number because she liked the way he had treated her and he gave her his cell phone number. He said that he had never seen that patient again. He did state that the patient initiated contact with him by text message after 1 September 2013. He could not recall the dates, the exact number of messages or the wording because he had deleted them. He estimated that she had sent three to four messages and that he had sent one or two messages. He denied writing any lewd or sexual comments. He said that he: ..mostly ignored her messages, however she seemed to become upset by this, judging from the messages. I do recall one of her messages implied she would make a complaint about me if I did not stay in contact with her. We never spoke on the phone....... 1. The Respondent asserted that the script for Diazepam was issued on 1 September, not 4 September as alleged by the Complainant. He said that he did not make a notation of the issue of the script on 1 September because "I saw this as an informal favour, and so did not think to make an entry under her name about it." 2. With respect to his records of treatment on 1 August, the Respondent said he would have initially taken handwritten notes at the bedside either on the back of the triage sheet or on a case notes page. He said these were written quickly and may not have been very legible at times. Afterwards he would have prepared a discharge summary: I most likely typed it up some time after seeing the patient, although I cannot recall exactly when. On occasion, I would type up my notes for several patients in one sitting, often after they had already left the department. This would be for low acuity presentations with no urgent or specific follow-up. He said that this allowed for quicker turnover during busy times and he had been encouraged to do so. 1. On 6 March 2014, the Complainant forwarded to the Respondent a copy of the patient records as provided by the hospital, and he was asked to advise whether this was a complete copy. He was also asked to provide a transcript of his handwritten notes and his mobile and home phone numbers as at 1 September 2013. 2. By letter dated 13 March 2014, the Respondent advised the Complainant of his telephone details. In addition, he said that he did not believe that the documents enclosed contained the entire medical records and that he was "certain I wrote an electronic note for the patient, most likely as a discharge summary." He thought that if no such document existed in the hospital records he may have saved it but did not electronically sign it and hence it may not be visible to other users. He said that the documents provided did not contain the observations chart nor further nursing notes. 3. The transcription of his handwritten notes of 1 August 2013 is as follows: HPI - N+Vx2 - Black - Small amt blood stranding - Ongoing crampy P (letter enclosed in circle) - Ongoing diarrhoea - R (enclosed in circle) shoulder - chronic, on & off 2 yrs - worse nw/ - R (enclosed in circle) handed - fevers - UO N (enclosed in circle) 1. The Respondent informed the Complainant that at the relevant period he was using two cars. One was a dark red Alpha Romeo GTV and the other a dark green Honda Civic. 2. By letter dated 27 August 2014, the Complainant wrote to the Respondent setting out in some detail the nature and extent of allegations of misconduct raised against him. He was given an opportunity to make submissions pursuant to section 40 of the Act. That letter enclosed a copy of the expert report of Dr S. McCarthy and copies of all documents which had been provided to her. The Respondent replied by email on 3 October 2014. 3. In this email communication, the Respondent accepted that his medical treatment of Patient A was "sub optimal, and that I did not keep proper notes." However, he denied engaging in any sexual activity with her but conceded that he did "behave inappropriately by sharing contact details and flirtatious text messages." He emphasised that he had no malicious intention toward the patient and that he did not: ..abuse or intend to harm her in any way. I did not harass her or attempt to manipulate her with the provision of scripts. I do not believe the medical treatment provided was grossly negligent, but was obviously not ideal. He said that this was the first and only complaint ever made against him at any level in the health system. 1. In discussing the events of 1 August, 2013, the Respondent said that before he had seen the patient he had been informed by staff that she presented frequently with benign and sometimes inconsistent symptoms. He thought that he would see her relatively quickly focusing on the immediate issue only, and with an aim for discharge: I admit this coloured my assessment of her presentation somewhat, and it was why I was not so surprised that she seemed more interested to discuss her shoulder pain and analgesia requirements. The blood in the vomit was a small dark piece of material that looked to me, and several staff members who saw it, like a small piece of burnt toast. 1. He admitted that he did not recall the patient being tachycardic in triage or suffering from dizziness. He felt certain he would have noted tachycardia on physical examination. He said that his assumption that a "fast track" patient usually has observations in the normal range combined with the fact that she looked like a well patient led him to think that her real reason was to discuss her shoulder pain and to obtain analgesia. 2. He prescribed Oxycodone because he believed that she had previously taken this drug and that she was having a hard time obtaining it from general practitioners. He knew it was used as breakthrough pain management and he and his colleagues prescribed it for the management of musculoskeletal pain in both Emergency Department and outpatients. He did not think it was unusual or potentially dangerous to prescribe it on request. 3. He admitted that he did not maintain good notes. He said: The scribbled notes on the back of the sticker sheet or piece of paper are not intended in any way to form the official medical notes, they are just some small reminder points for the letter I would enter later on the computer system. My mistake came about as I had adopted the practice preferred by some of the senior ED staff of leaving discharge summaries as the only note entered under the patient, and completing these at the end of the shift to improve the turnover of patients. I at times would leave 3-4 such letters until the end of the shift, and obviously must not have gotten to this patient's notes. It is a very rare error for me to make. 1. With respect to issues arising from his 1 September 2013 encounter with Patient A, he said that he had supplied the prescription for diazepam "as she told me she had been on it before, to use on an infrequent basis to help her sleep." 2. The Respondent admitted that it was "inappropriate and foolish" to have interacted informally with the patient and to have disclosed personal and contact details to her. He said that he had felt sorry for the patient and his intention was only to be helpful but he was wrong to let that progress. …she seemed to me to be one of those small groups of patients that can sometimes be sidelined by the medical system. My intention was only to be helpful at that stage. However I was wrong to let that progress, and I admit that I engaged in flirtatious text message exchanges with her, but I did not engage in any sexual activity with her. He denied any physical contact with her other than on 1 August and 1 September at or near the Emergency Department. 1. At the same time, the Respondent provided a CV which indicated that he was born on 16 September 1979, and commenced practice as a medical practitioner as an intern in 2005. Included within the employment history is a reference to the Respondent being engaged at Senior Resident Medical Officer Level at a number of Emergency Departments in hospitals including Campbelltown, Bankstown, Sutherland and Wollongong. The Expert Report of Dr S. McCarthy 1. Dr McCarthy is a Specialist Emergency Physician with many years' experience and we proceed on the basis that she is appropriately qualified as an expert to assist the Tribunal in these proceedings. She was furnished with extensive documentation including all relevant clinical notes and other hospital records relating to the medical care afforded by the Respondent to Patient A. 2. There are a number of matters contained within the report which we now deal with in terms of the particulars of the complaints which are the subject of these proceedings: 1. The care and treatment of the patient on 1 August 2013. The Triage nurse had recorded, at 7:54pm that the patient presented complaining of two episodes of dark vomit, with no abdominal pain or tenderness but smelling of alcohol. She had a raised heart rate of 115 bpm which later was recorded at 100 bpm, with normal blood pressure. She had complained of dizziness. There was nothing contained in the Respondent's handwritten notes and complaint responses to indicate that he had made any assessment of the reasons for the patient's tachycardia, dizziness and any consideration of the possible need to treat these problems. There was no record of any enquiry about why there was blood in her vomit. She said: A brief, relevant history of symptoms possibly associated with vomiting has been recorded (the presence of diarrhoea, crampy abdominal pain; the absence of fever, or urinary symptoms) and the complaint of right shoulder pain was noted, however, the notes are not extensive or complete, or sufficient to indicate that appropriate clinical care occurred. No detail of any physical examination was provided either of the abdomen or the right shoulder. There was no record of a referral for a right shoulder ultrasound scan which the Respondent said he had given, and no justification as to why this was needed. The only treatment was a prescription for Oxycodone with a tablet to take home. It was her opinion that his assessment and treatment of her presenting symptoms was not adequate. He did not adequately consider or exclude possible diagnoses of hypovolaemia secondary to fluid or blood loss, possible gastrointestinal bleeding or gastritis, or a cause for the shoulder pain. 1. The appropriateness of prescribing Oxycodone. The patient had not complained to any nurse about shoulder pain and there was no record of shoulder pain on the ambulance sheet. She had not been given anything for pain relief whilst in the Emergency Department. It was the opinion of Dr McCarthy that the prescription of Oxycodone was not appropriate. A first line of treatment should have been regular Paracetamol with the addition of a non-steroidal anti-inflammatory drug if required. There was no suggestion that she was suffering from acute or chronic shoulder pain which would be the only justification to warrant a prescription of Oxycodone. There is no suggestion that she required immobilisation of the shoulder for pain. In the same way, it was not appropriate to give her one Oxycodone tablet to take home. 2. The clinical notes of the Respondent were "scant and do not meet the expected standard of care for adequate clinical documentation." There was a failure to comply with the relevant Regulation. 3. The issue of a prescription for Diazepam was not appropriate. When the patient presented to the Emergency Department on 1 September 2013, the ambulance notes show that she had consumed 1 litre of vodka. Furthermore, she was well known to Emergency Department staff to have had significant mental health problems. The prescription of Diazepam by an Emergency Department medical staff member solely for the purpose of sleep difficulty was "outside the scope of accepted ED practice" and, in the case of this patient, was "specifically contra-indicated due to the potential for abuse or side effects due to her alcohol consumption and other health problems." 4. The provision of a mobile phone number to the patient and his personal relationship with her was not, in her opinion, appropriate and was a violation of professional boundaries. 1. Overall, it was the opinion of Dr McCarthy that the standard of care exhibited by the Respondent fell significantly below that expected of a practitioner of the Respondent's training and experience. The Script for Diazepam 1. A copy of the prescription for Diazepam issued by the Respondent on the stationery of Bankstown Hospital is in evidence. There is no dispute that it was issued by the Respondent in his handwriting. It contains the name of the patient and her address, and is dated "4/9/13." It contains a certification by the patient, over a signature the veracity of which we are unaware, and shows a date of supply of 6 September 2013. The Respondent's Oral Evidence 1. The Respondent was questioned about his response to the HCCC in February 2014. It was put to him that the earlier letters of 22 January and 10 February did not nominate the name of the patient and he was asked, when he received the latter letter how he could have any recollection of the patient. He said that there was detail of a consultation on 1 August 2013 and that his contact with the patient A was "out of the ordinary." The discussion he had with her on 1 September had reminded him of meeting with her on 1 August. He clarified his evidence by saying that the examination on 1 August was not out of the ordinary but that she was a frequent presenter to the Department and a senior colleague had commented that she was a nuisance patient. He also said that when he wrote his letter of 18 February he recalled the vomiting, nausea and shoulder pain as well as the black toast because all of this stood out in his mind. 2. The Respondent was asked about his recollection from the witness box of any specific abnormality in the patient's right shoulder. He said that he thought she might have made some reference, but could not recollect any details. As he could not remember any specific complaints made by her, it is clear that his evidence was based on a reconstruction of what he thought might have occurred. 3. In cross-examination, the Respondent agreed that the first contact between himself and Patient A after meeting her again on 1 September was a call which he made to her voicemail. He explained this by saying that he "would have" made the call in response to a voicemail from a number that he did not recognise and that he suspected this might have been her number. He conceded that he was not sure how the exchange of telephone numbers had occurred. 4. The Respondent was referred to his letter of 3 October 2014. He conceded that the contents of the messages between himself and the patient were "flirtatious." He said that she was becoming more flirtatious and that he responded in too friendly a manner. He again conceded that the initiation of contacts between them by telephone and text was made by him. He could not recall telling the patient that he could come over and give her relaxation techniques, but he could have said that he was more free during the days. He said that he did not remember anything in the texts and would be speculating about the details. 5. Furthermore, the Respondent conceded that he entered the computer records of the Department on 4 September 2013 at 5:39am and went to the details of this patient. He did not deny that he had done so, although he did not remember doing so. He offered by way of an explanation that he could possibly have been checking to update his personal records even though this consultation had occurred one month earlier. However, telephone records show that he sent text messages to the patient 5 hours later on the same day, commencing at 10:20am. He also conceded that there was no record of any phone call from her at this time. The records therefore showed, as he conceded, that he had sent two text messages before the patient had sent her text on the same day namely 4 September, being the day that he had access to records showing her address and contact details. Notwithstanding this, he denied visiting her home and having consensual sex with her. 6. In oral evidence, the Respondent admitted that he should not have prescribed Oxycodone. He said at the time he understood that Patient A had acute chronic pain and Endone was used for this condition. He said that he had asked the patient whether she was familiar with this medication and he understood that she had already been using it for "breakthrough" pain. He had not accessed her records because she was a "fast track" patient but had been told that she was a frequent presenter and he was happy to accept what he had been told. In retrospect he said that he would now go to the most recent note about such a patient. 7. It was his impression that Patient A was not seeking treatment but was looking for contact with another person. 8. In his oral evidence, the Respondent conceded that the clinical notes and records which he made on 1 August 2013 were inadequate. He said that he was familiar with the Regulation which deals with the keeping of records and that he knew he should make contemporaneous notes. He said that this was not always possible in the fast track area of the Emergency Department. He said that he was encouraged by others to write up all of his notes at the end of the shift. His procedure was to write some notes at the bedside and put them in a shared workspace and use them to write up the records later. He would either write on the back of the triage sheet or take a blank piece of paper. He never used the hospital computers because he found them cumbersome and bulky. It was his practice to enter the notes at the end of the shift but occasionally he may not have done this. If he did not enter the notes he kept a list of patients and notes on stickers and wrote up from that list later. He thought that he would always have written up the notes by the end of the next shift. 9. The explanation given by the Respondent in evidence for the inadequacy of these records was firstly, time pressure and, secondly, the methodology which he used. 10. As to the time pressure, the records indicate that the Respondent worked 2pm to 12am that day and saw only 6 patients over the 10 hour period; a very light patient load in a busy Emergency Department. He saw Patient A at 7:44pm and treated only one other patient after her. He said that he could have been busy assisting others with other patients but, having no independent recollection, this is speculation. 11. The Respondent said in evidence that he never recorded any physical examination in his notes. 12. In oral evidence, the Respondent conceded that the script was in his handwriting and that it showed the date as 4 September 2013. He reiterated that this was a mistake and that he had given it to Patient A either on the late hours of 1 September or early hours of 2 September. He explained the mistake by saying that he "must have been" tired. This is, of course, an ex post facto rationalisation. Furthermore, he denied posting the prescription. 13. The Respondent was asked why, on his version of events, he had issued a prescription for 20 tablets when the patient could have attended her GP the following day. He answered by saying that he believed the patient who had said that she had had a hard time getting a prescription. Inconsistently, he said that the patient had told him that her GP had given her a prescription for Temazepam in the past. 14. On the Respondent's version, he had gone to the doctors' office in the Department where the scripts were held to write out a prescription after meeting Patient A on the evening of 1 September. He had written out the script there and taken it to her where she was waiting for it. The script contains the full name and address of Patient A. He was asked how he knew her address. He said that he may have accessed it on the computerised records. It was put to him that there was no record of he personally having accessed the computer at around that time on that day. He said that he could have used a computer already logged in by another person with an open login and that this was an explanation. However, this evidence was given in the context that it was speculative. The Respondent provided another explanation in that he may have had on him the sticker concerning this patient from 1 August shift. He always kept the papers in his trousers and perhaps these records were with him. Again, this was speculation. It was put to him that even if he had used a computer which was already logged in by someone else, he would have had to log in the name of the patient to obtain the details. The Respondent concluded that he was unable to recall the details of how the address came to be known to him when inserted on the scripts, but that the date was definitely an error. The weight to be given to the statement of Patient A 1. This is an area of significant controversy in these proceedings. The Complainant asserted that notwithstanding the unavailability of this person to give evidence, we should accord full weight to the contents of the statement, notwithstanding the inability of counsel for the Respondent to test her evidence. The Respondent submitted that the statement should be given little weight, because essentially there had been no opportunity to test it, especially concerning the allegations of sexual misconduct. In determining what weight is to be given to the statement, we are mindful of the relevant principles of law which apply to our consideration, and which we have previously set out in some little detail, especially by reference to the extracts of the judgment of Dixon J in Briginshaw. 2. The Complainant submitted that almost every matter asserted by Patient A in her statement of 13 March 2014 had been corroborated by other evidence given in the proceedings and that the statement contained material which was consistently accurate as so corroborated. On this basis, the Complainant relied on a number of matters of detail contained within the statement which were not necessarily significant for the resolution of these proceedings, but were important in establishing a narration which was consistently accurate as corroborated by other evidence. We set out below each of the matters of detail relied upon and those portions which we have extracted verbatim from written submissions filed on behalf of the Complainant are shown in quotation marks. [3] "The doctor had told me his name was Julian": There is evidence that the Respondent had in the past referred to himself as Julian. "The significance is that the patient nominates a first name (and not a last name), which was largely correct and corroborated subsequently by hospital records." [5] I first saw the doctor in the fast track area of ED that night"; "The reason I went to ED that night was because I spat up some black stuff". "This statement refers to the patients' presentation on 1 August 2013. The Respondent admits the patient was seen as a 'fast track' patient- he uses this to justify his prescribing. The Respondent also admits that the patient presented with what he subsequently assumes was burnt toast because of its 'black' nature but first recorded as "small amount of blood stranding". The patient has given a history of her attendance at ED on the night of 1 August which is corroborated by the Respondent's own evidence and is thus undisputed." [5]"He gave me a script for oxycodone"- when she first saw the Respondent in the "fast track" area of the Emergency Department on 1 August 2013. This is admitted by the Respondent and is also corroborated by the medical chart of the patient for her admission on 1 August 2013. [5] " He also gave me a little container with one oxycodone tablet to take home". This is admitted by the Respondent and is also corroborated by the medical chart of the patient for her admission on 1 August 2013. [5] "This was the only time the doctor treated me in ED". This is admitted by the Respondent and is also corroborated by the medical records of the patient for her admission at Bankstown/Lidcombe Hospital. [6] "A few weeks later I was back at ED again." "It was night time around 11pm". "The patient attended again on 1 September 2013, consistent with an assertion of a "few weeks later". The triage notes record her "Registration Time" as 22:33pm, consistent with an assertion of 'around 11pm'….. the Respondent finished his 12 hour shift that day at 11pm." [6] "I remember I was standing out the front of the hospital, just outside the entrance to ED, probably having a cigarette when I saw the doctor coming out". "The Respondent admitted in his oral evidence that he saw the patient that night outside the hospital. He further agreed in oral evidence that it was possible she was smoking." [6] "He walked out the door carrying his briefcase" "The Respondent stated in oral evidence that he did not carry a briefcase- however he did carry a bag- a satchel type bag that hung over his shoulder. The fact that the patient described the bag as a briefcase and the Respondent described it as something different is largely irrelevant. The significance is the detail she gives as to her memory of events and there is no dispute that the Respondent was carrying a 'bag.'" [6]-[7] "I recognised …the doctor I'd seen in the ED a few weeks earlier…." "I said to him do you remember me". "The Respondent admits that the patient approached him as he was leaving work that day, a shift that ended at 11pm." [8] "I walked with him to his car. It was a two door, red or maroon Alfa Romeo. I'm pretty sure it was manual." The Respondent admitted that he owned and drove at the relevant time a two door, manual, dark red Alfa Romeo. The Complainant submitted that Patient A "could not have given such a precise description of both the internal and external appearance of the Respondent's car- unless of course she had been inside." There is no evidence or information available as to how Patient A could otherwise have come to know these details of his car. "Tellingly- he never suggests that he walked with her to his car or that his car could be viewed from the ED entrance- two possible explanations- had they existed." [8] It (Alfa Romeo) was parked outside the hospital car park, down a side street." "The Respondent admits in oral evidence that he habitually parked his car down a "side street' from the hospital and that he did not have access to the doctors parking in the car park attached to the hospital. The Respondent asserts that he parted ways with the patient at the entrance to the hospital. Again the Commission submits that it is inexplicable how Patient A knew this specific piece of detail- namely where the Respondents car was parked- if she did not walk with the Respondent to his car." [9] "It would have been a week night as I have my kids on the weekend" "1 September 2013 was a Sunday night. This is not entirely inconsistent with the patients account as the return of her kids may well have been at the end of a weekend, namely prior to 11pm on a Sunday night." [10] "I said you must be tired do you want to come in and have a coffee….He had a short black". "The Respondent admitted in oral evidence he drinks short blacks…the detail given by the patient as to what type of coffee the Respondent drinks, is overwhelming evidence to support a finding that the patients account of events on 1 September 2013 is accurate, reliable and truthful. Of particular note is also the reported consistency of this detail that the Respondent drank a coffee at her place, having reported the same to RN Heffernan who records in her statement " She said we had a coffee and then we had sex." " [12] "He said he's 32 he'd studied for 7 years and he lived in Campsie or somewhere in that area". "The Respondent was born on 16 September 1979, making him 33 years old on 1 September 2013 - remarkably close to the patient's recollection. His nominated address on his CV is and remains (at) Campsie. He commenced studying in 2000 and was a RMO 2 in 2008- again a period of 8 years of studying/training- remarkably close to what the patient asserts she was told. Of note further is that the Respondent never gave evidence at the hearing that these are details discussed or given during the first consultation on 1 August or during his discussion with the patients outside the ED entry on 1 September 2013." [13] "Then we kissed each other and gave each other oral sex." This account of oral sex was reported by the patient during her original complaint to RN Heffernan who states the patient said "he was more interested in giving me oral sex because he'd read a book about it and he felt he was very good at it." [15] "I asked him in a joking way if he could give me a script for diazepam. He said I'll write you a script and send it to you in the mail". And [23] A day or two after this I received a white envelope in the mail, containing a script for 25 diazepam tablets. Dr Marino had written the script from Bankstown Hospital. There is evidence that the Respondent wrote a script dated 4 September 2013- consistent with the patient's assertion that she received the script a day or two after she requested it on the morning of 2 September 2013. The script also makes plain that it was a script for 25 tablets of diazepam- as asserted by the patient. "The patient's account is entirely consistent with the eMR records of 4 September 2013 which state that the patients records- which record a patient address, were accessed on 4 September 2013- a day on which she had not presented to the hospital. More telling- they were accessed under the user name 'Marino Giulliano' at 5:39am which coincides with a time the Respondent was on a rostered shift at the hospital which commenced on 3 September 2013 at 10:30pm and concluded at 8.30am on 4 September 2013. This was the first shift the Respondent had worked since his 1 September 2013 shift." [17] "In the morning around 6 or 7am he got up…got dressed and left. Before he left I gave him my mobile number, so we could catch up again." "The patient's attention to detail is again remarkably accurate. The Vodafone records…make plain that at 6:49am the Respondent called the patient- once, perhaps twice for 13 seconds. There are two overwhelming inferences from this evidence. One- that he called her whilst in her home so he would have her number recorded on his phone under "recent" calls. Alternatively, that he called her to thank her for the night. Whatever the explanation for the call- the Vodafone records corroborate the patients account that the Respondent left around 6 or 7am and that before doing so, he obtained her mobile number." [18] " He didn't give me his number at this stage." This assertion by the patient is entirely corroborated by the Vodafone records which make clear that the first contact was made by the Respondent, at 6:49am on the morning of 2 September 2013 and that the subsequent text contact was also initiated by the Respondent on 4 September 2013 at 10:23am. The Commission submits that the Respondent's evidence that he 'may have' (not positively 'did') received a 'missed call' from the patient and that is how he obtained her mobile number – is an attempt by him to reconstruct events to explain how he had the patients mobile- contrary to her assertion that she gave it to him after their intimate night together. The phone records support Patient A's version." [22] "A few days after he stayed the night, I received a text message from the doctor. It said something like hi this is Julian from Bankstown Hospital. Just letting you know that I will send that script in the mail." "The Vodafone records … make plain that the Respondent sent up to 5 texts commencing at 10:23am on the morning of 4 September 2013, namely 'a few days after' he stayed the night on the 1st September. This text was sent roughly two hours after he finished his shift that day. It is of note also that the script is dated 4 September 2014 the same date as when the Respondent first initiates text message contact. The evidence of RN Heffernan entirely corroborates the patients account namely she sates "I saw three separate (text) messages from "Julian". I don't recall the exact messages but one of them stated that a script had been sent to her…..." Furthermore, the script was dispensed on 6 September 2013- entirely consistent with the patients account above that she received the script 'a day or two later'. " [24] "I received maybe 3 or 4 other text messages over a period of about a week. They said things like maybe I should come over again and give you more relaxation techniques." "This assertion is consistent with the Vodafone records- namely that there was more text message correspondence. More significantly, it is entirely consistent with the evidence of RN Heffernan who states "I saw three separate (text) messages from "Julian". I don't recall the exact messages but one of them stated that a script had been sent to her, and the other message contained a phrase "give you some more relaxation therapy (or something like that) and "I'm free during the days." " [26] "I did not at any stage threaten to make a complaint about him if he didn't contact me. I really wanted to see him again because he had been so nice to me." "This account is entirely consistent with the reported basis for the patient's overdose on the night of the 6th September where she reports to RN Heffernan that she "overdosed on 20 dolased tablets….stated that she was feeling rejected and angry about a recent casual sexual encounter with a doctor (NB named him only as Julian) gave her a lift home a few nights ago". The Vodafone records also make plain that between 5 and 6 September 2013 the patient texted the Respondent three times and called him once (maybe twice) with no response from the Respondent to either text or phone calls on those days." 1. The Respondent's submissions on this matter, in asserting that we must have regard to all of the circumstances from which any inference can reasonably be drawn as to the accuracy of the statement, rely on some matters which are said to be either inconsistent or incorrect. These are asserted to detract from the overall reliability of the statement, and in particular, from so much of the statement that alleges that the Respondent spent time at the home of Patient A on 1 September 2013. The Respondent points to the following matters: 1. In her statement, Patient A said that she went to the Emergency Department on the second occasion for her back pain. In her statement, nurse Heffernan said that Patient A presented on that occasion for "anxiety." The clinical notes for 1 September 2013 indicate that Patient A arrived by ambulance and that her presenting problem was "unwell." The triage comment is that the patient was alert without any undue signs or symptoms. There is a handwritten note that she was said to be feeling better when she approached triage including the comment "called a taxi – left The D." The relevant ambulance notes on that occasion indicate that Patient A had consumed a litre of vodka during the evening, she had been in a bad mood, and was described as having a "psychiatric problem." Accordingly, there is a clear inconsistency between this material in the statement and the other available corroborative evidence. 2. Reliance is placed on the content of the handwritten note on the hospital records on 1 September 2013 indicating that a taxi had been called for Patient A and that she left the Emergency Department. However, this notation does not assist in evaluating whether there is any inconsistency in the statement made by her about what happened later that evening. The position would arguably be different if there was a notation to the effect that she had left the hospital grounds by taxi. 3. There were said to be inconsistencies concerning the date that the alleged sexual contact occurred. The statement does not give a date. It refers to an attendance at the Emergency Department "a few weeks" after her previous attendance, which is clearly 1 August 2013. On 7 September 2013, Patient A told Ms Heffernan that she had sexual contact with a doctor from the Emergency Department "a few nights ago." On the same day, Dr Amiani noted that she had been told by Patient A that the encounter had occurred "a couple of weeks before." In our opinion, the inability or, arguably, the failure of Patient A to specify a particular date does not introduce any matter of inconsistency or controversy which would detract from reliance overall on her statement. The relevant date, 1 September 2013 may readily be confirmed because of corroborative evidence that indicates that this was the only other time apart from 1 August 2013 when Patient A and the Respondent met, and there are aspects of the evidence of the Respondent which clearly confirm the version of events given by Patient A up until the time when she said that he drove her home. 4. It was said that there were inconsistencies in the description given by Patient A about the nature of the sexual contact said to have occurred. In her statement, Ms Heffernan said that Patient A told her that after she and the Respondent had arrived at her home, that they had had a coffee and: ...then (they) had sex. (Patient A) told us they'd had full sexual intercourse. I asked about sexual health and she said oh I'm okay, he used a condom. She also said but he was more interested in giving me oral sex because he'd read a book about it and he felt was very good at it. I remember she said he actually was quite good at it. She also commented that he was quite hairy. Ms McMahon, in a statement, said that Patient A had telephoned her on 9 September 2013. She said that she had not been given a voucher (which we take to refer to a taxi voucher) when she attended the Emergency Department "recently" and was looking for a lift home. Patient A said to her that she was given a lift home by an Emergency Department medical officer "and they had oral sex and he stayed with her overnight." When Patient A attended on a Psychologist, Bradley Jones, in October 2013 he obtained a history which he included within a report stating that Patient A engaged in consensual intercourse with the doctor. She also said that subsequently the doctor has sent her text messages requesting further "intimate contact" with her. The statements and this information was said to be inconsistent with a reference in the statement relied upon by the Complainant to kissing and oral sex. We are not convinced that these asserted inconsistencies are such that they would allow us to decline to accept what Patient A says occurred on the relevant evening. There is no suggestion that anyone ever questioned Patient A concerning the precise details of the sexual activities which she alleged that she and the Respondent engaged in. Without descending into unnecessary detail, we observe that oral sex may, in ordinary language, be subsumed within the rubric of sexual activity. It may take place in addition to other forms of sexual engagement. 1. The Respondent rejected the assertion of the Complainant that Patient A in her statement gave a "precise description" of the internal appearance of the Respondent's motor vehicle. The only reference was to the fact that she was "pretty sure it was manual." Furthermore, the Respondent said that he had frequently spoken with people at the hospital about his motor vehicle and he was passionate about it. It was the Respondent's submission that this was a rare and distinctive car that was usually parked within 100 metres of the front entrance of the hospital, and could easily have been described to someone without ever travelling in it. As against this submission, Patient A stated that the motor vehicle was parked down a side street and, in the circumstances, this must cast some doubt on whether it could be easily seen from the entrance to the hospital. There is no suggestion by the Respondent that he discussed the type and make of his motor vehicle with Patient A when he met her outside the Emergency Department on 1 September 2013, or that he told her where it was parked. 2. At all times in her statement, Patient A referred to the Respondent as "Julian". It was the Respondent's evidence that after he had returned from a visit to Italy in 2007 he had reverted to using his Italian name, Giuliano. Presumably, in these circumstances, we should infer that there was never a reference made by the Respondent in any of his conversations with Patient A to Julian. 1. Significantly, the Respondent was deprived of the opportunity to test the contents of the statement made by Patient A by way of cross examination, and in particular the highly prejudicial assertions concerning the circumstances of his alleged visit to her home and the fact that consensual sex had occurred. It was said that when one coupled the disadvantage to the Respondent of being denied the opportunity of cross-examining Patient A and testing her allegations with the asserted inconsistencies we could not be "comfortably satisfied" that the sexual conduct and other events occurred "having regard to the gravity of the conduct alleged and the possible consequences." 2. The determination of this matter is essentially one of impression informed by the principles to which we have earlier made reference. We approach this matter by reference to these principles, and the relevant factual circumstances as we have described them. We particularly have reference to the extract of the judgment of Dixon J in Briginshaw referred to previously, which although directed to the issue of proof of adultery, may by analogy be applied to proof of sexual conduct. "Upon an issue of adultery in a matrimonial cause the importance and gravity of the question make it impossible to be reasonably satisfied of the truth of the allegation without the exercise of caution and unless the proofs survive a careful scrutiny and appear precise and not loose and inexact. Further, circumstantial evidence cannot satisfy a sound judgment of a state of facts if it is susceptible of some other not improbable explanation. But if the proofs adduced, when subjected to these tests, satisfy the tribunal of fact that the adultery alleged was committed, it should so find." 1. Of course, this matter would be easier to resolve if we had before us the testimony of each of the Respondent and Patient A, and each of them had been questioned concerning their evidence. In these circumstances, it is easier, but not necessarily easy, to make a determination about whether we could be comfortably satisfied that a sexual encounter had taken place. However, Patient A has not given evidence, has not been cross-examined on it, and we have not had an opportunity of assessing her truthfulness by reason of the testimony itself, and her demeanour. 2. Overall, we are persuaded that even though Patient A has not given evidence, and the Respondent has been prejudiced by an inability to cross-examine her on it, there are nevertheless so many instances where her statement on matters that are able to be corroborated has been corroborated that we are prepared to accept her unsworn and untested statement that she and the Respondent had consensual sex in her home on 1 September 2013 as alleged by her. The circumstances as she has narrated them in her statement about what occurred when she first met the Respondent on 1 September 2013 outside the Emergency Department, the detail about walking to the Respondent's car, her description of the car, her reference to the personal details of the Respondent including how he liked his coffee, and the telling corroborative evidence of the mobile phone records to which we have earlier referred, in the aggregate allow us to be comfortably satisfied that the Respondent had consensual sex with Patient A at her home as alleged in the complaint. Furthermore it is much more likely that the Respondent would have engaged in the admitted flirtatious message exchanges with Patient A following a sexual encounter than if he had merely had the brief conversation on the evening of 1 September that he said occurred. We do not accept the inconsistencies identified by the Respondent as being of a sufficient nature to detract from our overall conclusion in this regard. Accordingly, we accept the submissions of the Complainant upon this point which we have set out in some detail and partly verbatim. 3. In accepting and relying on the statement, we repeat that we found many aspects of the Respondent's evidence to be unconvincing. Much of his evidence was given by way of ex post facto rationalisation, using words such as "I must have", "I would usually" and the like. We are, accordingly, more comfortable in accepting and relying upon the statement of Patient A as to what occurred on 1 September. We do not accept that the Respondent wrote out the script on 1 September, and mistakenly dated it 4 September. All of the evidence including his knowledge of Patient A's details, and the dates of his access to the hospital computer records of Patient A, and the other matters corroborates the issue of the script on 4 September. 4. We now come to deal with each of the complaints and their particulars. PARTICULARS OF COMPLAINT ONE Particular 1: On 1 August 2013 the practitioner failed to adequately assess and treat Patient A's clinical presentation in circumstances where he failed to adequately consider or exclude a possible diagnosis of hypovolaemia secondary to fluid or blood loss, possible gastrointestinal bleeding or gastritis, or a cause for the new complaint of shoulder pain. 1. This particular directs attention to the clinical presentation of the patient, and a failure to consider or exclude particular conditions and a failure to diagnose a "new complaint" of shoulder pain. On presentation there was a history of two episodes of dark streaked vomiting. The only record in the clinical notes made by the Respondent is "Black small amount blood stranding," but the Respondent in his evidence thought that what was believed to be blood was in fact "burnt toast." There is no record in the clinical notes about burnt toast. The written responses made by the Respondent to the Complainant which we have earlier set out, and the Respondent's own evidence makes it clear that he had evaluated Patient A by reference to the fact that she had been fast tracked, and this had led him to focus on her shoulder complaint and what he perceived to be her desire for help with analgesia. 2. In his evidence, the Respondent said that the record in the clinical notes of the blood stranding is a reference to what the patient said, and is not a reference to any conclusion he came to after viewing what he said was a piece of burnt toast. Likewise, the Respondent said that he examined this patient for some 15 to 20 minutes and that this showed that he had, in fact, undertaken an appropriate examination and assessment of this patient, including her shoulder condition. 3. In her statement, Patient A does refer to showing the Respondent what she had "spat up" and confirms that she told the Respondent about her shoulder, although she denies that the Respondent examined her. 4. There is also a paucity of information recorded in the clinical notes concerning the patient's shoulder condition. Whilst the Respondent gave evidence concerning certain detailed assessment of the shoulder condition, we found it unconvincing. Certainly the Respondent was unable in evidence to proffer any diagnosis of the cause of the shoulder pain. 5. The Complainant relies upon the expert opinion of Dr McCarthy who did have available to her the responses made by the Respondent to the Complainant which we have earlier summarised, but obviously was not privy to the oral evidence given by the Respondent in these proceedings. It was the opinion of Dr McCarthy that the Respondent had failed to provide appropriate clinical care, and had failed to adequately assess and treat the patient as alleged in the complaint. In expressing her opinion Dr McCarthy was forced to rely on the omissions from the clinical notes made by the Respondent which she described as "not extensive or complete, or sufficient to indicate that appropriate clinical care occurred." 6. This reference to the inadequate clinical notes of the Respondent creates the conundrum with which we are faced in determining some of the issues in these proceedings. In endeavouring to comprehend the conduct of the Respondent in determining whether particular 1 of this complaint has been made out, we are compelled to have regard to what is known, but is not recorded in the clinical notes because of the Respondent's admission that they are inadequate and contain significant omissions. The Respondent says he did conduct a comprehensive examination, and did consider appropriate diagnoses, and did refer the patient for an ultrasound and prescribed medication. Although not specifically stated, we assume that he did not consider matters such as a diagnosis of hypovolaemia because he did not consider that there was any loss of blood and that the patient had vomited up burnt toast. 7. As previously stated, we are not prepared to accept those parts of the evidence of the Respondent which clearly represent an endeavour to reconstruct events which he could not recall specifically at the time that he gave that evidence. 8. Dr McCarthy does not express any opinion about whether, assuming that it was appropriate for the Respondent to exclude any blood in the patient's vomit because he concluded that the relevant material was burnt toast, that it was necessary or appropriate to exclude a diagnosis of hypovolaemia. In the circumstances, and as there seems to be corroboration from the statement of Patient A that the Respondent examined the dark material which she had spat up, we are not satisfied to the requisite standard that the Complainant has established that the Respondent failed to adequately consider or exclude such a diagnosis. 9. However, we do not accept on the evidence that the Respondent did in fact carry out an appropriate examination of the patient's shoulder with a view to determining the cause for her professed symptoms. We do not accept that he referred her for an ultrasound examination in the absence of any documentary or other corroborating evidence of the existence of any such referral, and because he focused on her request for analgesic assistance rather than determining the source of the pain. We are comfortably satisfied that particular 1 of this complaint has been made out but limited to the cause for the new complaint of shoulder pain. Particular 2: On 1 August 2013 the practitioner inappropriately prescribed oxycodone (20 x 5mg tablets), a Schedule 8 drug of addiction to Patient A, together with a single take home dose of oxycodone 5mg, in circumstances where he, a) failed to adequately assess and treat Patient A's presenting symptoms; b) failed to adequately investigate Patient A's complaint of shoulder pain; c) failed to exercise responsible medical judgment as to whether it was appropriate to issue such a prescription and/or provide a take home dose. 1. The Respondent denied particulars (a) and (b), but admitted (c). 2. We apprehend that the gravamen of this Particular is directed to the shoulder pain. There is no suggestion that this substance was prescribed for anything but the asserted shoulder pain. We have previously determined that the Respondent failed to adequately assess and investigate the patient's complaints of shoulder pain. To this extent, we find this particular proven. Whether and to what extent there was a failure to treat the presenting symptoms of shoulder pain would arguably depend upon diagnosis. In the absence of any diagnosis, and in the absence of any suggestion that the Respondent should have made a diagnosis on the spot, we do not find this aspect of particular (a) proven. Otherwise, we find (a) and (b) proven. 3. In view of the formal admission made, we find particular (c) proven. Particular 3: The practitioner failed to keep an adequate record of Patient A's presentation to the ED and acted contrary to clause 7 of the Health Practitioner Regulation (New South Wales) Regulation 2010, by not recording, a. an assessment of the reason for the tachycardia or dizziness; b. any inquiry as to the possibility of blood in the vomit; c. any detail of a physical examination of the abdomen or right shoulder. 1. The Respondent admitted particulars (a) and (c). We find them proven. 2. The Respondent denied particular (b) because his clinical record of "small amount blood stranding" was said to be representative of an enquiry into the possibility of blood in the vomit. The Complainant rejects this submission because the particular focuses attention on an "adequate record" of an enquiry as to the possibility of blood in the vomit, rather than a mere mention of such a possibility. We agree. In our opinion an adequate record would have described in some brief detail the complaint made by the patient, the fact of examination of the material said to have been vomited up, and the conclusion arrived at after that examination. It follows that the record made by the Respondent was inadequate and we find this particular proven. COMPLAINT TWO Particular 1: Between approximately 11pm on 1 September 2013 and 6am on 2 September 2013 the practitioner failed to maintain proper professional boundaries in that he, a. agreed to drive Patient A home from the ED; b. accepted Patient A's invitation to go inside her home for coffee; c. inappropriately engaged in sexual contact with Patient A whilst at her home. Particular 2: On 2 September 2013 the practitioner failed to maintain proper professional boundaries whilst at Patient A's home in that he, a. Disclosed personal details to Patient A, such as his age and the suburb where he lives; b. Inappropriately asked for Patient A's mobile telephone number. Particular 3: Between 2 and 22 September 2013 the practitioner failed to maintain proper professional boundaries in that he made 1 telephone call and sent 9 text messages to Patient A. 1. In essence, the Complainant relies upon the material contained within the statement of Patient A in seeking to prove Complaint Two. We have already considered in some detail the weight which should be given to this statement. For reasons which we have previously set out we are comfortably satisfied to the standard established in Briginshaw that the circumstances set out in particulars 1 and 2 have been established, relying on the material contained in that statement in preference to the evidence of the Respondent on these matters. We again point to the events which occurred after the early hours of 2 September 2013 by way of mobile phone text exchanges, mobile phone calls, the issue of a prescription for Diazepam as promised as all indicating that the evidence of the Respondent should not be accepted where it conflicts with the statement of Patient A about what occurred on the evening of 1 September 2013 and the early morning of 2 September 2013. 2. We are comfortably satisfied that Particular 1 of this complaint has been made out. 3. In the absence of any plausible explanation as to how Patient A came to learn of the Respondent's age and the suburb where he lived, and in view of the other evidence to which we have already referred, we are comfortably satisfied that Particular 2 (a) has been made out. Likewise, we are comfortably satisfied that the Respondent asked Patient A for her mobile telephone number, as this is a more plausible explanation for his telephone call early on 2 September 2013 rather than his tentative suggestion that that call may have been made as a result of seeing a missed call from her. 4. We are comfortably satisfied that Particular 2 of this complaint has been made out. 5. We note the admission by the Respondent of Particular 3 and we formally find that it has been made out. We note also in this context the written admission by the Respondent that he "engaged in flirtatious text message exchanges" with Patient A. COMPLAINT THREE Particular 1: On 4 September 2013 the practitioner inappropriately prescribed diazepam (25 x 5mg tablets), a Schedule 4D drug to Patient A in circumstances where, a. the prescription was given in response to Patient A's request and without a medical consultation; b. the practitioner sent the prescription by post directly to Patient A's home address; c. the practitioner issued the prescription without appropriate clinical assessment, including a medication history, to determine if Patient A was using a similar drug or abusing benzodiazepines, or had other contra-indications. 1. The Respondent concedes that Particulars (a) and (c) have been made out, except that he asserts that the prescription was issued on 1 September 2013. He denies Particular (b). 2. It will be remembered that the statement of Patient A refers to a conversation at her home on the evening of 1 September 2013 during which the Respondent promised to provide her with a prescription for Diazepam. The Respondent's version is that the prescription was requested by the patient outside the Emergency Department when they met that night. There is no suggestion that the patient gave the Respondent her personal details including her address to enable him to write out a prescription in the Department, as he alleged. There is no record of the Respondent having accessed her computer patient records at that time. There is, of course, a record of the Respondent having accessed those records on 4 September 2013, the date shown on the prescription. The Respondent said that this was the incorrect date, and he must have inserted it because he was tired. 3. In his oral evidence, the Respondent gave a number of explanations as to how he may have accessed the online computer records of the patient by using an open record which might have already been logged in by a colleague. He also speculated that he might have asked the patient for her address before re-entering the Emergency Department or after returning with the prescription. We note that the Respondent does not profess to have a detailed recollection of what occurred, and these explanations are proffered by him as representing a "credible" account of what could have happened. In the absence of any assertion by the Respondent of any particular recollection of what occurred, there is no basis upon which we should accept the assertion of the Respondent that the prescription was in fact issued by him on the evening of 1 September 2013, although it was dated 4 September 2013 in circumstances where the Respondent had accessed her computer records that day. The prescription was filled on 6 September 2013 which is consistent with it having been received by mail as asserted by the patient in her statement shortly after 4 September 2013. The reference to the content of the voice messages concerning the issue of the prescription corroborates this conclusion. For completion, we do not accept the explanation proffered by the Respondent as to the possible reason for the access he made to the records of this patient on 4 September 2013, being to write up her clinical notes. It beggars belief that he would have done so on that day for the purpose of writing up notes of an examination which had taken place more than a month previously. There is no credible reason for the Respondent to have accessed the computer records of this patient on 4 September 2013 other than for the purpose of obtaining her personal details to enable him to write out and post a prescription for Diazepam that day. 4. For these reasons we are comfortably satisfied that the Respondent issued the prescription the subject of this complaint on 4 September 2013 and sent it by mail to the home address of Patient to A. We find this complaint proven. Unsatisfactory Professional Conduct 1. Each of the complaints 1 to 3 alleges a breach of section 139B of the National Law. Complaint One alleges a breach of sub sections (1)(a) and (b), and complaints Two and Three each allege a breach of sub sections (1)(a) and (l). These provisions are in the following terms: 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. ……………………………… (l) Any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession. For the purpose of sec 139B(1)(b), the following provision applies; HEALTH PRACTITIONER REGULATION (NEW SOUTH WALES) REGULATION 2010 - SCHEDULE 2 SCHEDULE 2 – Records kept by medical practitioners and medical corporations in relation to patients (Clauses 7 (1) and 8 (4)) 1 Information to be included in record (1) A record must contain sufficient information to identify the patient to whom it relates. (2) A record must include the following: (a) any information known to the medical practitioner who provides the medical treatment or other medical services to the patient that is relevant to the patient's diagnosis or treatment (for example, information concerning the patient's medical history, the results of any physical examination of the patient, information obtained concerning the patient's mental state, the results of any tests performed on the patient and information concerning allergies or other factors that may require special consideration when treating the patient), (b) particulars of any clinical opinion reached by the medical practitioner, (c) any plan of treatment for the patient, (d) particulars of any medication prescribed for the patient. (3) The record must include notes as to information or advice given to the patient in relation to any medical treatment proposed by the medical practitioner who is treating the patient. (4) A record must include the following particulars of any medical treatment (including any medical or surgical procedure) that is given to or performed on the patient by the medical practitioner who is treating the patient: (a) the date of the treatment, (b) the nature of the treatment, (c) the name of any person who gave or performed the treatment, (d) the type of anaesthetic, if any, given to the patient, (e) the tissues, if any, sent to pathology, (f) the results or findings made in relation to the treatment. (5) Any written consent given by a patient to medical treatment (including any medical or surgical procedure) proposed by the medical practitioner who treats the patient must be kept as part of the record relating to that patient. 2 General requirements as to content (1) In general, the level of detail contained in a record must be appropriate to the patient's case and to the medical practice concerned. (2) A record must include sufficient information concerning the patient's case to allow another medical practitioner to continue management of the patient's case. (3) All entries in the record must be accurate statements of fact or statements of clinical judgment. 3 Form of records (1) An abbreviation or shorthand expression may be used in a record only if the abbreviation or expression is generally understood in the medical profession in the context of the patient's case or generally understood in the broader medical community. (2) Each entry in a record must be dated and must identify clearly the person who made the entry. (3) A record may be made and kept in the form of a computer database or other electronic form, but only if it is capable of being printed on paper. 4 Alteration and correction of records A medical practitioner or medical corporation must not alter a record, or cause or permit another person to alter a record, in a way that obliterates, obscures or renders illegible information that is already contained in the record. 5 Delegation If a person is provided with medical treatment or other medical services by a medical practitioner in a hospital, the function of making and keeping a record in respect of the patient may be delegated to a person other than the medical practitioner, but only if: (a) the record is made and kept in accordance with the rules and protocols of the hospital, and (b) the medical practitioner ensures the record is made and kept in accordance with this Schedule. 1. The Respondent conceded that the admissions made by him with respect to those particulars of each of the three complaints when considered together were sufficient to enable us to find that he was guilty of unsatisfactory professional conduct. It follows that having regard to the findings of guilt additional to those conceded by the Respondent, we are entitled to conclude that in the aggregate the conduct of the Respondent constitutes unsatisfactory professional conduct, and we so find. COMPLAINT FOUR 1. This complaint is brought under section 139E of the National Law, which is in the following terms: 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. The Complainant alleges that in the aggregate all of the findings which we have made concerning the conduct of the Respondent constitute professional misconduct, and we should so find. 2. A determination of whether conduct constitutes professional misconduct rather than unsatisfactory professional conduct involves the exercise of a value judgement about whether that conduct would justify suspension or cancellation of the registration of the Respondent, whether or not such a determination is ultimately made. Suspension or cancellation of registration are contained within a number of orders which may be made by way of "protective orders." These orders are intended primarily to protect the public from the practice of medicine by health practitioners whose continued practice might otherwise unduly affect the safe practice of medicine for the benefit of the public. In addition, it is recognised that protective orders of this kind may be made also to provide a deterrent to other health practitioners who might be dissuaded from engaging in misconduct of this kind and also to promote the public confidence in the practice of medicine. Accordingly, in determining whether the Respondent in these proceedings is guilty of professional misconduct we must have regard to these matters. 3. Prima facie, all conduct which may be characterised as unsatisfactory professional conduct is serious. We have previously set out the statutory definition as contained in section 139B of the Act, and it follows that the conduct which we have found to have been proven, much of which was admitted by the Respondent must be regarded seriously. 4. The Complainant submitted that the most serious area of misconduct of which the Respondent is guilty concerns the breach by him of the professional boundaries which apply to all health practitioners in their relationship with patients. The Medical Board of Australia has established a Code of Conduct to provide guidance for health practitioners on sexual boundaries in the doctor-patient relationship. The Code of Conduct emphasises qualities "such as integrity, truthfulness, dependability and compassion" and in addition to competence a prohibition against doctors taking advantage of patients. There is particular reference in the code to professional boundaries which include "never using your professional position to establish or pursue a sexual, exploitative or other inappropriate relationship with anybody under your care." On 28 October 2011, the Board issued guidelines for doctors which were intended to complement the Code of Conduct. Sexual misconduct is said to include engaging in sexual activity with a current patient regardless of whether the patient consented to the activity or not and with a person formerly under a doctor's care. The guidelines include, significantly the following: The doctor-patient relationship is inherently unequal. The patient is often vulnerable. In many clinical situations, the patient may depend emotionally on the doctor. It is an abuse of this power imbalance for a doctor to enter into a sexual relationship with a patient. 1. It is incontrovertible that Patient A was a vulnerable person by reason of her medical history, including her psychiatric history. The Respondent should have been aware of this because it was clearly documented in the hospital records. Furthermore, he had been warned by others at the hospital, as he conceded, that she was suffering from a personality disorder. We make these observations because they exacerbate the seriousness of the Respondent's misconduct which, prima facie, arises whenever a health practitioner engages in sexual activity with a patient. 2. It matters not that the Respondent clearly did not act in a premeditated manner or with any ill intent directed to the patient. The fact remains that the Respondent inappropriately engaged in sexual activity for his own sexual gratification with a person who had been his patient, and with whom he continued to engage in a doctor-patient relationship by issuing a prescription for Diazepam on 4 September 2013, as we have found. The Respondent knew, or ought to have known that the patient was seeking drugs. We agree with the submissions of the Complainant that the patient clearly suffered from emotional instability and either a personality or psychiatric condition as the Respondent should have known, and her vulnerability was evidenced by the fact that she intentionally took an overdose of drugs on 6 September 2013, stating that she did so because she had been rejected by the Respondent. 3. This is a most serious matter. 4. The clinical records of the Respondent as they pertain to Patient A were woefully inadequate. We do not accept the Respondent's professed intention to perfect them later, because he had made no attempt to do so for more than a month after Patient A attended upon him on 1 August 2013. Furthermore, he worked irregular shifts as a locum and had no guarantee that he would work again at that hospital at any particular time. The inadequacy of those records in lacking any real detail about symptoms, examination, findings on examination, diagnosis and treatment would make the task of any other health practitioner seeking a history of prior symptoms and treatment much more difficult. 5. Similarly, the inappropriate prescription of Oxycodone on 1 August 2013 in circumstances which were clearly not warranted and the later prescription of Diazepam on 4 September 2013 constitute serious misconduct. There was clearly no clinical justification for prescribing either of these drugs to this patient. 6. The remaining matters which we have identified as constituting unsatisfactory professional conduct, namely the failure to adequately assess and treat Patient A which we have previously considered fall into a less severe category. Conclusion 1. Having regard to the seriousness of each of the areas of unsatisfactory professional conduct which we have found, and to which we have earlier referred we are of the opinion that, in their totality, they should be characterised as constituting professional misconduct and we so find. 2. The proceedings are stood over for further hearing on 26 April 2016, when we shall hear submissions from the parties concerning the nature and extent of any protective orders that should be appropriately made consequent upon our findings of professional misconduct. The parties are directed to confer with a view to reaching sensible agreement about what evidence each of them will seek to adduce in connection with the stage 2 hearing, and, if possible, the exchange of submissions. In the event that such agreement cannot be reached, we grant liberty to apply which may be exercised by the presiding member. 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 April 2016