Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Vigours [2018] NSWCATOD 40 Hearing dates: 19, 20 & 21 September 2017 Date of orders: 19 March 2018 Decision date: 19 March 2018 Jurisdiction: Occupational Division Before: Hon G Mullane ADCJ, Principal Member; Dr T Salonga, Senior Member; Dr C Barnes, Senior Member; Dr C Berglund, General Member Decision: (1) The Respondent practitioner is guilty of professional misconduct; (2) The respondent practitioner is reprimanded; (3) The respondent's registration as a medical practitioner is cancelled; (4) The Respondent may not apply for review of this cancellation until after three months from the date of these orders; (5) The respondent must pay the applicant's costs of or incidental to the proceedings as agreed or as assessed; and (6) Broadcast or publication of the name or other identifying information of a patient referred to in these reasons without leave of the Tribunal is prohibited. Catchwords: Medical practitioners- disciplinary proceedings- breach of professional boundaries, treating partner, treating de facto wife. supplying medications from hospital to partners, prescribing without proper assessment and failure to make clinical notes, professional misconduct- Cancellation Legislation Cited: Health Practitioner Regulation National Law (NSW) Cases Cited: HCCC v Philipiah [2013] NSWCA 342; Health Care Complaints Commission v MacGregor [2016] NSWCATOD 85; R v Byrne (1995) 193 CLR 501 Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Samuel John Vigours, (Respondent) Representation: Counsel: Ms R Mather (Applicant) Ms K Burke (Respondent) Solicitors: Health Care Complaints Commission (Applicant) TressCox (Respondent) File Number(s): 2017/00134155 Publication restriction: Broadcast or publication of the name or other identifying information of a patient referred to in these reasons without leave of the Tribunal is prohibited. reasons for decision INTRODUCTION 1. The respondent practitioner graduated as a Bachelor of Medicine and Bachelor of Surgery in 2013. He was first registered on 6 January 2014 with a provisional registration from that date until 13 February 2015. He then obtained general registration from 13 February 2015, which has continued. 2. These were proceedings under the Health Practitioner Regulation National Law (NSW) ('National Law') commenced by the Applicant against the practitioner alleging that he breached professional boundaries in respect of three (3) female patients in the period from January 2014 to February 2015 while for the first year he was an intern in a public hospital (referred to in these reasons as "P Hospital") and for period from February 2015 to August 2015 while he was a resident at the same public hospital. 3. During that time the practitioner had an intimate relationship with each of the Patients (referred to as in these reasons as "Patient A", "Patient B" and "Patient C"). 4. The complaints by the Applicant relate to his conduct in relation to those Patients. THE EVIDENCE 1. The evidence comprised:- 1. Complaint dated 4 May 2017 and Amended Complaint of 18 September 2017; 2. Registration Certificate for practitioner; 3. Original complaint from Patient A to the Commission, received on 10 November 2015 [redacted]; 4. Statement of Patient A to the Commission of 9 April 2016 [redacted]; 5. Annexure A – Original complaint from Patient A to the Commission (see Tab 3); 6. Annexure B – Facebook messages between Ms Aitcheson and Dr Vigours in August 2014; 7. Email correspondence between Dr Vigours and Patient A from 23-24 November 2014; 8. Original complaint from Patient B to the Commission, received on 10 November 2015 [redacted]; 9. Statement of Patient B to the Commission of 15 April 2016 [redacted]; 10. Annexure A – Original complaint from Patient B to the Commission (see Tab 6); 11. Annexure B – Facebook messages between Patient C to Patient A of 23 September 2015; 12. Annexure C – Facebook messages between Patient B and Dr Vigours of 19 May 2015 and 8 July 2015; 13. Letter from Dr Vigours to Patient B after he returned from holidays, undated; 14. Letter from the Commission to Dr Louis Christie for an expert report of 5 July 2016 [redacted]; 15. Expert report from Dr Christie of 20 August 2016 [redacted]; 16. Dr Christie's CV; 17. Letter to Dr Vigours from the Commission of 18 December 2015 [redacted]; 18. Dr Vigours response to the Commission of 29 January 2016 [redacted]; 19. Dr Vigours CV; 20. Email from Dr Vigours to the Commission regarding his work history of 24 June 2016; 21. Email from Dr Vigours to the Commission regarding more detailed work history of 2 September 2016; 22. Section 40 letter to Dr Vigours from the Commission of 30 August 2016 [redacted]; 23. Section 40 submission from Dr Vigours to the Commission of 4 October 2016 [redacted]; 24. PBS Claims History for Patient B for the period 1 January 2015 to 31 December 2015; 25. Dispensing history from Chemist for Patient B from 1 November 2014 to 23 September 2016; 26. Duplicate prescription from Dr Vigours for Patient B of 15 January 2015; 27. Duplicate prescription from Dr Vigours for Patient B of 17 August 2015; 28. Timesheets for Dr Vigours from P Hospital from 30 April 2015 to 31 July 2015; 29. NSW Police COPS Event No: E61644884, record of concerns from Patient B; 30. Email and letter from the Commission to Ms Kruk of 16 November 2016; 31. Response from Ms Delwyn Kruk of the Local Health District to the Commission of 1 December 2016; 32. Clarification email from Ms Kruk to the Commission of 12 December 2016; 33. Good Medical Practice – Code of Conduct for Doctors in Australia, Medical Board of Australia, March 2014; 34. NSW Health Code of Conduct, PD2015_049, NSW Ministry of Health, 16 December 2015; 35. Code of Conduct, PD2012_18, NSW Ministry of Health, 29 March 2012; 36. Sexual Boundaries: Guidelines for doctors, Medical Board of Australia, 28 October 2011; 37. Grant of general registration as a medical practitioner to Australian and New Zealand medical graduates on completion of intern training, Medical Board of Australia, 9 November 2012; 38. Health Care Records – Documentation and Management, PD2012_069, NSW Ministry of Health, 21 December 2012; 39. Medical records of Patient A from P Hospital; 40. Medical records of Patient C from P Hospital from admission of 30 April 2015; 41. Statement of Patient A dated 19 September 2017; 42. Reply to Application for Disciplinary Findings; 43. Curriculum Vitae of Dr Samuel Vigours ('SV3'); 44. Letter from Terry Campbell dated 31 July 2014 ('SV1'); 45. Clinical Note recorded by Dr Vigours of Patient B on his laptop dated 15 January 2015 ('SV4'); 46. Letter from Professor Alexander McColl dated 2 February 2015; 47. Text Message transcript from Patient C dated 1 May 2015 to 14 May 2015 ('SV6'); 48. Certificate of Completion for Advanced Paediatric Life Support dated 17 June 2015 ('SV2'); 49. Clinical Note recorded by Dr Vigours of Patient B on his laptop dated 17 August 2015 ('SV5'); 50. Email from Patient B to Dr Vigours dated 26 October 2015; 51. Email from Patient B to Dr Vigours dated 28 October 2015; 52. Email from Patient B to Dr Vigours dated 30 October 2015; 53. Email chain with Patient B and Dr Vigours from 30 October 2015 to 1 November 2015; 54. Letter from Dr Vigours to HCCC dated 4 October 2015 (unredacted); 55. Letter from Dr Lesley Foster dated 20 June 2017; 56. Statement of Dr Samuel Vigours dated 9 August 2017; 57. Letter from Dr Charles Belling dated 18 August 2017; 58. Documents produced by way of Summons from Medical Centre; 59. Documents produced by way of Summons from L Medical Practice; 60. Exhibit A1 Plan drawn by Patient A of part of P Hospital; 1. (One floor of Emergency Ward;) 1. Exhibit A2 Facebook messages of 16 August 2015; 2. Exhibit A3 Facebook messages of 17 August 2015; 3. Exhibit A4 Copy of part of Patient A's Blogg "A History of Suffering" in 1. German with English translation; 1. Affidavit of Patient A sworn 19 September 2017; 2. Oral evidence of Patient A on 19 September 2017; 3. Oral evidence of Patient B on 19 September 2017; 4. Oral evidence of Patient B on 19 & 20 September 2017; 5. Oral evidence of Dr Bill Christie on 20 September 2017; and 6. Oral evidence of Practitioner on 20 & 21 September 2017; THE COMPLAINTS 1. There are four complaints which are alleged in the application set out as follows:- Dr Samuel John Vigours ("the practitioner") of Mantra Trilogy 101-105 Esplanade, Room 512, Tower 2 Cairns City QLD 4870 being a medical practitioner registered under the National Law: Complaint One 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 1. In 2014 and 2015 the practitioner was a registered medical practitioner commencing as an Intern and then working as a Resident at P Hospital. 2. Between about January 2014 and October 2014, the practitioner was in a personal relationship with Patient A. 3. During her relationship with the practitioner, Patient A had a recurring urinary tract infection. 4. On 11 February 2014, Patient A presented to the Emergency Department at the P Hospital where she was examined and an initial blood test conducted by a medical practitioner other than the practitioner. 5. Between about November 2014 and August 2015, the practitioner was in a personal relationship with Patient B. 6. During her relationship with the practitioner, Patient B had recurring urinary tract infections. PARTICULARS OF COMPLAINT ONE Patient A 1. On or about February 2014, the practitioner inappropriately provided Patient A with a quantity of Cephalexin obtained from the P Hospital in circumstances where: 1. the practitioner and Patient A were in a personal relationship; 2. at the time of providing the medication the practitioner was an intern and the medication was provided outside his allocated intern position; 3. the practitioner provided the medication without creating a proper clinical record; 4. the practitioner provided the medication without appropriate clinical assessment and investigation, including taking a full history and conducting an appropriate examination. 1. On or about 11 February 2014, the practitioner inappropriately took blood tests from Patient A at P Hospital in circumstances where: 1. the practitioner and Patient A were in a personal relationship; 2. the practitioner was not involved in Patient A's clinical treatment or management. 1. In or about February 2014, the practitioner obtained the results from the blood test he administered on Patient A on 11 February 2014 and inappropriately communicated these results to Patient A in circumstances where: 1. the practitioner was not Patient A's treating doctor; 2. the practitioner and Patient A were in a personal relationship; 3. the practitioner incorrectly interpreted the results. Patient B 1. On or about 15 January 2015, the practitioner inappropriately prescribed Amitriptyline to Patient B in circumstances where: 1. the practitioner and Patient B were in a personal relationship; 2. the practitioner issued the prescription without creating a proper clinical record; 3. the practitioner issued the prescription without appropriate clinical assessment, including taking a full history and conducting an appropriate examination. 1. On or about 17 August 2015, the practitioner inappropriately prescribed Trimethoprim to Patient B in circumstances where: 1. the practitioner and Patient B were in a personal relationship; 2. the practitioner issued the prescription without creating a proper clinical record; 3. the practitioner issued the prescription without appropriate clinical assessment and investigation, including taking a full history and conducting an appropriate examination. 1. On a date between November 2014 and August 2015, the practitioner inappropriately provided Patient B with a quantity of Cephalexin obtained from the P Hospital in circumstances where: 1. The practitioner and Patient B were in a personal relationship; 2. The practitioner provided the medication without creating a proper clinical record; 3. The practitioner provided the medication without appropriate clinical assessment and investigation, including taking a full history and conducting an appropriate examination. 1. On a date between about November 2014 and August 2015, the practitioner inappropriately provided Patient B with a quantity of Trimetheprim obtained from the P Hospital in circumstances where: 1. the practitioner and Patient B were in a personal relationship; 2. the practitioner provided the medication without creating a proper clinical record; 3. The practitioner provided the medication without appropriate clinical assessment and investigation, including taking a full history and conducting an appropriate examination. COMPLAINT TWO is guilty of unsatisfactory professional conduct under section 139B(1)(a) and (l) of the National Law in that the practitioner has: engaged in conduct that demonstrates the judgment possessed 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 engaged in improper or unethical conduct relating to the practice or purported practice of medicine. Background 1. In 2015 the practitioner was a registered medical practitioner working as a Resident at P Hospital. 2. Between 30 April 2015 and 4 May, Patient C was an inpatient at P Hospital. 3. At a time prior to April 2015, Patient C and the practitioner had been in a personal relationship. Particulars of Complaint Two 1. the practitioner failed to maintain proper professional boundaries in that during Patient C's admission the practitioner paid a social visit to Patient C, lay on her hospital bed with her and watched a movie with her whilst he was working an overnight shift. COMPLAINT THREE is guilty of unsatisfactory professional conduct under section 139B(1)(a) and (l) of the National Law in that the practitioner has: engaged in conduct that demonstrates the judgment possessed 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 engaged in improper or unethical conduct relating to the practice or purported practice of medicine. Background 1. In 2015 the practitioner was a registered medical practitioner working as a Resident at P Hospital. 2. Between about November 2014 and August 2015, the practitioner was in a personal relationship with Patient B. PARTICULARS OF COMPLAINT THREE 1. On or about 19 May 2015, the practitioner engaged in sexual activity with Patient B at P Hospital when he was rostered on shift. 2. On or about 8 July 2015, the practitioner engaged in sexual activity with Patient B at P Hospital when he was rostered on shift. COMPLAINT FOUR is guilty of professional misconduct under section 139E of the National Law in that the practitioner has: engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration, or 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. ADMISSIONS BY THE COMPLAINANT Complaint one 1. The practitioner admits the whole of Complaint One except: 1. Particular 1; 1. Paragraphs (b) and (c) of Particular 6; and 2. Particular 7: and 3. He admits Particular (i) of the Complaint but denies that the conduct was "improper or unethical". Complaint two 1. The practitioner admits Complaint Two, including the background and particulars, except that he denies the allegations in particular 1 that he "lay" on the patient's hospital bed and "he watched a movie with her". He admits that his conduct under Complaint Two fell within the first limb of Complaint Two being conduct "significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience". He does not admit that the conduct was "improper or unethical". Complaint three 1. Complaint Three is admitted with the qualification that he alleges that the sexual activity occurred on both occasion during a meal break. Complaint four 1. The practitioner denies Complaint Four so far as it alleges that he is guilty of professional misconduct. Unsatisfactory Professional Conduct 1. Para 139B (1) of the National Law defines "unsatisfactory professional conduct" of a registered health practitioner as including: a) "Conduct that demonstrates the knowledge, skill or judgement possessed, or care exercised by the practitioner in the practice of the practitioner's profession is significantly below the standard reasonably expected of the practitioner of an equivalent level of training or experience"; and … (l) "Any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession". Improper or Unethical Conduct 1. In R v Byrne (1995) 193 CLR 501 the High Court held "improper" meant not in conformity with standards of professional conduct and practice. 2. In Health Care Complaints Commission v MacGregor [2016] NSWCATOD 85 at [41] the Tribunal referred to dictionary definitions of "unethical" as "contrary to moral precept; immoral; in contravention of some code of professional conduct" and held that that definition should be applied in disciplinary proceedings under the National Law. Professional Misconduct 1. Section 139 E of the National Law provides that the practitioner is guilty of professional misconduct if he has: Engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration, or Engaged in more than 1 instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify the suspension of cancellation of the practitioner's registration. Expert Evidence 1. Dr Louis Christie was instructed by the Health Care Complaints Commission and provided expert evidence in relation to the issue of whether the conduct of the practitioner particularised in the complaints constituted conduct within the definition in Para (a) or Para (l) the description in section 139B of the National Law of unsatisfactory professional conduct. Dr Christie's qualifications to give the opinions in his report are extensive and appropriate and were not disputed. There was no expert evidence disputing any of the opinions of Dr Christie. 2. In his report Dr Christie relied upon or referred to the following documents:- Good Medical Practice - Code of Conduct for Doctors in Australia, Medical Board of Australia for March 2014 ("Good Medical Practice"), NSW Health Code of Conduct (Policy Directives) ("Code of Conduct"), Sexual Boundaries: Guidelines for Doctors October 2011 – Medical Board of Australia ("Sexual Boundaries") and Registration Standard Granting General Registration as a Medical Practitioner to Australian and New Zealand Medical Graduates on Completion of Interim Training – Medical Board of Australia ("The Registration Standard"). Patient A 1. Patient A is of German nationality and arrived in Australia in October 2013. She travelled as a backpacker. She met the practitioner in early December 2013 when he was 28 and she was 24. She was travelling with a female friend and the practitioner invited them to stay with him at his parents' home. They stayed for a few days and then Patient A and her friend went travelling. When they returned, the friend left to return to Germany and Patient A stayed with the practitioner in Sydney until mid-January 2014. He then moved to the town where the P Hospital is located to take up an internship there. He invited her to go with him and she agreed. They cohabited in an apartment there from mid-January 2014. 2. In July 2014 Patient A took a five week trip along the east coast of Australia from Cairns and then returned to the town where the P Hospital is located. On 19 August 2014 she discovered that he was having an affair with another woman. 3. On 10 November 2015 Patient A made a complaint to the Health Care Complaints Commission about the practitioner. She did this after she had had discussions about the practitioner with Patient B, who had been another girlfriend of the practitioner and also had an intimate relationship with the practitioner. 4. In August 2014 she had discovered from the practitioner's private computer that he was having Facebook chats with another woman, who is not a patient in these proceedings. In late October 2014 she left Australia and returned to Germany. She did not continue the relationship with the practitioner. She ceased correspondence with the practitioner in about January 2015 as she did not wish to continue the relationship. He continued to contact her by email. In August 2015 Patient A received an email from Patient B advising "that she had been the practitioner's girlfriend from October 2014" and asking "what was going on" between the practitioner and Patient A. Her evidence is that at that time her communications with him had reduced and she was receiving only about one message a week from him. 5. Patient A, after her complaint, provided the Health Care Complaints Commission with a more detailed statement on 9 April 2016, which was relied upon by the applicant in these proceedings. Patient A also gave oral evidence in the proceedings. 6. Patient A had completed a degree in social work before she came to Australia and she travelled in Australia for a year. She had consulted other medical practitioners in Australia and had undergone ultrasound and MRI tests because of repeated urinary tract infections. 7. She also stated on her initial complaint to the applicant: When I strained my ligament due to a surf accident on 3.4.2014 I was brought to hospital by my surf teacher. Given that Sam was my partner, I called him to tell him that I was on my way. He welcomed us in front of the emergency department on the street, put a tube bandage on and sent me home. He told me to take 400mg Ibuprofen every 4 hours. If it wouldn't quite help I should take Paracetamol as well. I took it for about 3 weeks regularly. I had a riding accident on 15th or 16th October 2014. I fell off a horse and landed on my back. My riding teacher advised me to get it checked straight after but Sam told me there's no need for and talked it down. I was unsure what to do and waited another week. Cause it didn't really get better I decided against his advice and went to hospital on 24.10.2014. He actually was my doctor the letter says, although it was someone else who talked to me and checked it though. Also, I had reoccurring UTIs and he tried to talk me into taking more antibiotics when it didn't go away. He said something like, at the risk of annoying you, would you please consider taking them again. 1. In cross-examination Patient A said that she had previously seen Dr Richard Gordon in Sydney a week before she moved to the area where the P Hospital is located. She had complained then about abdominal pain and had undergone an ultrasound a few days later. She was asked whether she returned to see Dr Gordon after the ultrasound, she said: "No, I never went back". 2. The records of the P Hospital show that Patient A attended the hospital on 24 October 2014 after falling from a horse eight days prior, and complaining of back pain. She underwent an x-ray and it disclosed no evidence of a "fracture, malalignment or significant degenerative changes". The doctor who saw her and author of the hospital clinical notes was stated to be the practitioner. The clinical notes were quite detailed. 3. Patient A was cross-examined for about two and three quarter hours. She presented as an honest witness attempting to give evidence according to the best of her recollections. She presented as generally reliable. She said that she had resolved to make a complaint about the practitioner, regardless of what Patient B had decided. Patient B 1. Patient B was the manager of the local branch of a national organisation in the town where the P Hospital is located. She has since been promoted to a much more senior position with her employer. She met the practitioner through a dating website in November 2014. At the time she was 33 years of age and he was 28. At the time she was a divorcee and the mother of two (2) children who were in her care. The relationship became intimate fairly quickly and by January/February 2015 he was assisting with after school care for her two (2) children and discussed having a baby with her. The relationship continued until 28 August 2015. It ceased after she became concerned about some of his behaviour and also formed the view that he was having sexual relationships with other women throughout their relationship. After discussions with her general practitioner, who was a friend of hers, she made a complaint to the applicant on 10 November 2015. 2. A formal statement was prepared by the applicant and signed by her on 15 April 2016. 3. She suffered regular urinary tract infections during the period of the intimate relationship. She alleged that on two occasions the practitioner wrote her a script for antibiotics and on another two occasions he brought antibiotics home from the hospital for her. She said that the ones that he brought from the hospital didn't have the name of a patient on them and one packet had a tablet missing. She alleged that one was Cephalexin and the other was Trimethoprim. 4. She alleged that on three or four occasions the practitioner invited her to the hospital whilst he was on night shift to bring him dinner and have sex with him. She alleged she attended on three or four occasions as he requested. They ate food and had sex. She said: "I would sometimes stay for hours, sleeping with him on the lounge in the break room" 5. Elsewhere in her formal statement she said that she went to see him when he was on night shift the hospital on about three occasions and they met at the "break out room at the end of the hospital very far from everything else and no-one else ever came in. It was a room close to the back entrance of the hospital so I didn't have to walk through the whole hospital and sometimes I was there until 4:00 in the morning." 6. In his statement of 9 August 2017 the practitioner stated "At no time did I engage in sexual activity with Patient B whilst working at [P Hospital]. But later in his oral evidence he was conceding that they did have sex at the hospital when he was on night shift. But he said it was only during meal breaks. But other evidence proved this qualification to be false. 7. In Facebook messages exchanged between the practitioner and Patient B on the night of 8/9 July 2015, when he instructed her where to come to the hospital he said: "Can you come to that side door we left out of last time?" 8. She messaged him that she had arrived at 11:51 pm and then sent another message when she had arrived home safely at 1:50 am. Taking into account her evidence as to the time it took to travel between the hospital and her home, it appears she was with him in the "break out room" for more than 90 minutes, which is far in excess of any half hour or even one hour meal break. 9. In evidence was a letter the practitioner wrote to Patient B on 1 November 2015 or later after a trip to Mexico. In that letter he sought to resume an intimate relationship with Patient B. But in cross-examination, when it was put to him that the document was a letter by him, he said: "I can't say it is …. some parts sound like …. I handwrite notes. This is typed." When it was then put to him: "This is not the first time you have read this?" He conceded. He then speechified. 10. It is clear from correspondence between them. her evidence and a letter written to her by him in November 2015 or later that she was the instigator of their relationship ceasing and he had wished to continue it and still wished to continue it when he wrote the letter in November or even later, after he had holidayed in Mexico. Patient C 1. The practitioner's evidence is that he met Patient C socially in late October 2014. She was 32 and he was 29. His evidence is that they dated "for a few weeks and had a sexual relationship". They were still friends when Patient C was hospitalised for a week in the P Hospital in May/June 2015 after major surgery at a city hospital. Patient B's evidence is that the practitioner: "Told me on multiple occasions that he had intended on sleeping in her bed with her while he was on night shift because she needed support, that she didn't have anyone in her life to take care of her, and it was more comfortable for him to get some rest than on the couch in the break room". 2. Patient C confirmed in a Facebook message to Patient B on 23 September 2015 that: "He was sleeping (just sleeping) with me the four nights I spent in hospital. I had nearly died, so was pretty fragile". Complaint Three – Patient B 1. The practitioner admitted, and the evidence established, that between about November 2014 and August 2015 he was an intern (until February 2015) and then a Resident Medical Officer ("RMO"), employed at the P Hospital. In the period from November 2014 to August 2015 he engaged in an intimate and sexual relationship with Patient B. He admits that on or about 19 May 2015, he was engaged in sexual activities with Patient B at the P Hospital when he was rostered on a night shift and again on about 8 July 2015 he engaged in sexual activity with Patient B at the P Hospital when he was rostered on shift. 2. The evidence is that on both of these occasions, he contacted Patient B by telephone and invited her to join him in a recreation room that she could access from an exterior door without having to enter any other part of the hospital premises. He invited her to bring takeaway food for them to share and when she attended, they ate a meal and then had sexual intercourse. 3. In cross-examination the practitioner denied having sexual activity with Patient B when he was on night shift because he was working and responsible for the shift. He said there were seven doctors on duty in the hospital at such times and they were permitted up to an hour for a meal break. He conceded that if there was an emergency the call would go out to all of the doctors and he was required to respond. He said that he sincerely regrets his conduct as a junior doctor. The practitioner said that he had had a discussion with his supervisor about the issue of having sex with Patient B during meal breaks. He said, "At the time I thought meal breaks were my time." 4. When asked about the night of 19 May he admitted that he was rostered from 10:00 pm until 8:30 am the next morning with a 30 minute meal break. He described the shift as "10 hours work and 30 minutes for time of my own". He conceded that the instruction was that he take the time for the break when the wards were not busy. He conceded that he knew that having sex on a shift was unacceptable conduct. 5. In cross-examination when it was put to him when he was asked about his response to the HCCC in October 2016 denying that he ever engaged in sexual activity during the night shifts. He was asked whether he would say that that was truthful and his answer was: "Yes, at the time". Then it was not until the question was repeated a third time that he conceded that the statement he gave was misleading. 6. When asked when he had decided he should change that response, his answer was: "In the last few days when I was reading the documents and revising it". He conceded that it was not until after the start of the hearing that he changed his mind. 7. In cross-examination he also conceded that in a letter to the Health Care Complaints Commission he denied he had sex with Patient B "at any time while working at the [P Hospital]". He then conceded that that statement was misleading. When he was asked whether it was deliberate he answered: "Not consciously". 8. In cross-examination he conceded that his night roster permitted only a half hour meal break and did not permit a one hour break. He had previously claimed that it did permit a one hour break. He also conceded that the break was not for sexual activity. 9. He claimed that he been "called away at least once on each occasion when Patient B came and joined him at night in the hospital". He reluctantly conceded that he has always known to have sex in a meal break was unacceptable. 10. He conceded to the Tribunal that during the meal break he was still on-call and if there had been a patient suffering a life threatening event such as a heart attack, he would be paged to attend. But he said in his oral evidence that if he was on-call he could interrupt what he was doing in the "meal break" and attend wherever in the hospital the alarm had been raised, and in any event there were seven doctors in the hospital so someone else would attend. 11. The practitioner admits that the conduct complained of demonstrates the judgment possessed by him in the practice of medicine was significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. He denied that the conduct was "improper or unethical conduct" relating to the practice or purported practice of medicine. He denied that the conduct was professional misconduct. It clearly demonstrated "the judgment possessed 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 therefore constitutes unsatisfactory professional conduct. 12. Dr Christie's evidence is that the rostered night resident or intern is not completing an on-call shift, but is the rostered medical cover for the hospital overnight. He opined:- "The rostered night resident or intern is not completing an on-call shift, but is the rostered medical cover for the hospital overnight. Therefore, creating an environment where the doctor is not immediately able to respond to requests for medical assistance is a failure of the responsibilities of the doctor on duty. Even if this were not the case, NSW Public Hospitals do not establish rooms or facilities for doctors or other staff to engage in sexual relationships whilst at work or on the hospital grounds. Engaging in sexual activity whilst rostered in the hospital on shift (even with a partner unrelated to the work environment), demonstrates a profound failure to understand the nature of the role and responsibilities of a junior medical officer in the NSW Public Hospital System. Developing a pattern of behaviour in which the doctor regularly engaged in sex in the doctor's lounge whilst working night shifts, demonstrates a significant failure to appreciate appropriate professional boundaries, and to behave in the manner expected of medical staff within the hospital system. Dr Vigours' behaviour in this area falls significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience, applicable at the time of the conduct and attracts my strong criticism." 1. In his oral evidence Dr Christie testified that because the practitioner was rostered to provide overnight cover it was entirely inappropriate to engage in sexual intercourse while he was on duty. He said that if it was during a meal break, that would make no difference to his opinion. 2. He said: "It appears well understood that as sole doctor on wards, he was required to be on the wards, except during a meal break at a quiet time." 1. Accordingly, the finding of the Tribunal is that the conduct of the practitioner alleged in Complaint Three has been proved and constitutes unsatisfactory professional conduct under both paras (a) and (l) of the definition of unsatisfactory professional conduct in Subsection 139B(1) of the National Law. Complaint Two – Patient C 1. It is common ground that the practitioner was in a personal relationship with Patient C before April 2015. Patient C was an inpatient at the P Hospital between 30 April 2015 and 4 May 2015 where the Practitioner was working as a resident and was on duty at the hospital during that period. The allegation is that the practitioner failed to maintain proper professional boundaries in that during Patient C's admission he paid a social visit to her, lay on her hospital bed with her and watched a movie with her whilst he was on duty on an overnight shift. 2. The practitioner admits the allegation, except that he denied "lying" on the bed with Patient C and denied watching a movie with her. He admits he sat on the bed and watched television with her. The practitioner admits that in any event he engaged in conduct that demonstrates his judgment in the practice of medicine was significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. He denied that his conduct was "improper or unethical conduct relating to the practice or purported practice of medicine". 3. Regarding the Complaint Two, in cross-examination the practitioner admitted that his conduct with Patient C crossed professional boundaries. But he claimed he only sat on the bed and when he was asked whether he denied there was a movie playing on the television, contrary to the other version, he said: "I didn't watch." His other version was in his letter of 29 January 2016 to the Health Care Complaints Commission where he said: "The only comfortable way I could watch part of the movie with her was to sit on her bed with the head up, on top of the bed sheets, which she invited me to do." 4. In cross-examination he was asked about text messages exchanged between him and Patient C when she was an in-patient at the hospital. After Patient C had text him to advise that she was being discharged from the hospital, he sent a message to her: "I was totally going to chocolate you up tonight." He denied this had any sexual meaning. 5. Later there was an extensive exchange of messages and then she concluded the exchange by saying: "Hey I gotta go as my awesome dinner is ready!! Don't miss me to (sic) much tonight darling!!! Have a quiet night. Xxxxxx" 6. Patient C in an SMS message to Patient B on 23 September 2015 stated that the practitioner had been "sleeping (just sleeping) with me the four nights I spent in hospital. I had nearly died so I was pretty fragile" and also said, describing the same period when she was in hospital. "(He) spent the next week by my side every hour he had off looking after me and sleeping with me." 1. The practitioner was not a treating doctor for Patient C on this occasion. A consultant physician, a gastroenterologist and other medical practitioners were in charge of her care. 2. The investigator for the HCCC wrote to the practitioner on 18 December 2015 advising of complaints received against him. One of those was said to be a complaint "that you slept in a hospital bed with [Patient c] when she was an in-patient at [P Hospital]". 3. When he replied to that complaint in his letter of 28 January 2016, he said:- 4. "I became friends with [Patient C] in late 2014. In my capacity as her friend she invited me to make a few social visits whilst she was a patient at [P Hospital] in May 2015, which I did. She texted me on 3 May 2015 asking for me to come and keep her company when I had a break or finished my shift. I was not her treating doctor. I was seeing her as a friend. She invited me to share a meal with her and watch part of a movie (Men in Black) with her. The way her room was set up, the only comfortable way I could watch part of the movie with her was to sit on her bed with the head up, on top of the bed sheets, which she invited me to do. During this time, the door remained opened and nurses frequented the room. There was no ambiguity as to my role at the time. In hindsight, I appreciate my friendly social interaction may be viewed as inappropriate, and have discussed the matter with one of my supervisors." 5. In his letter of 4 October 2016 in response to a letter from the HCCC he said regarding his interactions with Patient C when she was hospitalised:- "The hospital paperwork which the Commission has sent me shows [Patient C] was admitted to [P Hospital] at 1:50 am on 1/5/15, and was sent home from hospital early on 4/05/15. I became aware of [Patient C's] admission when she texted me on 1/5/15 around 08:00 telling me she was in the hospital after being sick, but was 'back on track now', and had been transferred to [P Hospital] from [the city hospital] as part of her step-down. She invited me to make a social visit to alleviate her boredom, which I said I could not do until a break in work. I took 20 minutes to eat a small meal and chat with [Patient C] in a social capacity around 23:30 on 1/5/15. I sat atop her sheets because the room did not have a chair. The door remained opened, and nurses frequented the room during my visit." 1. He also stated:- "On 03/05/15 at 00:13, [Patient C] texted me stating she was bored and wanted company. I stopped for a quick visit to say hello. I did not sit on her bed nor eat food. I soon left as the wards were busy." 1. The practitioner said that on the morning of 03/05/15 during a "regular rounding of wards", Patient C told him that she felt her pain was improving and she was having too much Oxycodone and was told at John Hunter to ask for Ibuprofen as an alternative. The practitioner says that he fixed a charting error to enable her to have Ibuprofen instead and verbally handed over the rechart to her treating team when they arrived. He said that he did not see Patient C in the hospital again after the recharting. 2. However, in his reply filed in these proceedings on 9 August 2017 the practitioner denied that he lay on the bed and denied he watched a movie with Patient C while he was working on an overnight shift. He said that the incident occurred on 1 May 2015. He said that Patient C texted him asking him to come to keep her company "when I had a break or finished my shift". 3. The timesheet for the practitioner produced by the P Hospital says that he was rostered for a ten hour shift on 1 May 2015 commencing at 10:00 pm that day and concluding at 8:30 am on 2 May 2015. 4. He says in his statement he was rostered on a night shift ward cover and was the only doctor on shift. He says there were other doctors in the hospital in the Emergency Department and the Intensive Care Unit. He said Patient C was in a short-stay ward "The Medical Assessment Unit" as part of her step-down care. He said that Patient C sent him a message telling him she was a patient and asking if he would make a social visit. He agreed to do so "during my meal break". He said: "While there were no other doctors on the shift, I was allowed to have my meal break during quiet periods, however I remained on call for medical emergencies." 5. He said that he attended her room in the Unit and there were no chairs in the room, so he sat on the end of the bed and "ate my dinner off a tray". He said he remained in her company for about 20 minutes and then returned to work. He acknowledged in his statement that: "In hindsight I should not have paid a social visit during work hours, even though I was on a break." 6. He also said in his statement that he was on ward duty commencing at 10:00 pm on 2 May and concluding at 8:30 am on 3 May 2015. 7. He said: "Included in my duties was to regularly visit every ward of the hospital. Each ward maintains a whiteboard on which the nurses write outstanding jobs for me to do. Whilst on my rounds I noted that there was a job listed to rechart Nurofen for Patient C. As it was a Sunday and I was the only doctor available covering the wards at the time, and because Patient C's regular treating team would not be in until Monday, I recharted Nurofen for Patient C. I had no other further social or professional visits to Patient C after recharting her Nurofen." 1. The Tribunal is satisfied on the balance of probabilities that the practitioner on 1 May 2015 whilst rostered on night duty at P Hospital visited Patient C in her hospital bed and lay on her bed with her watching a at least part of a movie during the period when he was rostered on duty as an RMO at the hospital and Patient C was not his patient. 2. The Tribunal accepts the evidence of Dr Christie that such conduct is "entirely inappropriate, given the potential for confusion as to the nature of relationship". Dr Christie noted that the hospital notes for Patient C include an entry on 3 May in her medication chart by the practitioner reviewing Patient C and prescribing a medication at 4:30 am on 3 May. Dr Christie's evidence is that it was clear that at that time at least, the practitioner was involved professionally in the management of Patient C. 3. It was also noted that the practitioner did not complete any clinical documentation of his review of Patient C at that time. 4. Dr Christie's opinion, which the Tribunal adopts, is that the practitioner's behaviour in relation to lying on the bed of Patient C watching at least part of a movie with her while he was rostered on duty fell significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience, applicable at the time of the conduct and attracts his strong criticism. Despite the denials made by the practitioner in his replies regarding whether he lay on the bed or watched a movie with the patient, he admitted in both documents that his conduct was unsatisfactory professional conduct under paragraph 139B(1)(a) of the National Law, as concluded by Dr Christie. 5. Accordingly the finding of the Tribunal is that such conduct was unsatisfactory professional conduct. Complaint One particular 2- Taking blood from Patient A on 11 February 2014 1. In her initial complaint to the applicant patient A said: Treating family and friends: Cause (sic) he was my partner and I was a traveller on my own, I trusted him a lot. I started to have stomach pain first time 5.1.2014. From 25.1.2014 it got worse. I had treatment in Sydney before I went to emergency of [P Hospital] with Sam in the morning of 11.2.2014 cause it didn't get any better. A female co-worker of Sam's examined me, and afterwards her boss had a check too. They sent me home with Buscopan. I was frustrated with this cause I had been sick for so long and I wanted another opinion. Sam decided by himself that he'll make a blood test (Haematology PMB and Serum Chemistry PMB) without the previous two doctors' knowledge. He brought me into an empty room on his ward and took my blood ….. Even before this test Sam told me to take 400mg Ibuprofen and 400mg Paracetamol every four hours. He talked me into taking them for about 4 weeks without any stomach protection like Pantoprazole or similar. When I took them later on by myself he even laughed at me and said I wouldn't need it. It came to light that it is very unhelpful to take Ibuprofen when you have problems with stomach and gut. 1. She said in her later statement: 9. On 5 January 2014 I started to have stomach pain. I had seen a doctor in Sydney about it who gave me some medication but it didn't work. From 25 January 2014 on the stomach pain had gotten worse. By this time I had moved to [the town where P Hospital is located] with Sam and on 10 February I asked Sam what to do and he said words to the effect of 'come with me to the Hospital'. 10. On 11 February 2014 I went to the Emergency Department with Sam. A female young doctor and the head of emergency examined me and said that there was nothing that they could see and they wanted to send me home with Buscopan. I was frustrated by this because I had been sick and in intense pain for so long. Sam told me words to the effect of 'I will do the blood test'. We then went over to the computers where Sam entered some information in or had a look at information. After we picked up the implement for the blood taking we then went into a patient room so he could take my blood. … 11. After Sam took my blood he took me to the place where I could pay… I'm not quite sure what I paid for… 1. In oral evidence she said that on 11 February 2014 she had been taken to the hospital by the practitioner in the morning and they waited in the emergency section. She said he waited with her for some of the time and then she was seen by a younger female doctor and then an older female doctor, (the supervising doctor for the emergency service). Both those doctors decided that she did not need to have a blood test. She was disappointed. They had told her that they couldn't find anything and gave her a script for Buscopan and advice to follow up with her GP and return to the Hospital if the pain worsened or she had blood in her stools. 2. In his statement of 9 August 2017 the practitioner said that after she had seen the Emergency Department staff on 11 February 2015 she was "very upset" and: "I asked [Patient A] if it would help if we performed a blood test and then she could follow up with her general practitioner regarding the results." He said she agreed to that and he confirmed with the Emergency Department that this was acceptable. But from cross-examination it appears that he did not speak to either of the doctors working in the Department who had seen Patient A. 3. The practitioner alleged in his statement that the blood test results became available the same day and he placed them in a sealed envelope and gave them to Patient A. He said: "I did not review the results." "I told Patient A that she should take them to her general practitioner to discuss." 4. She said that the practitioner later told her in the waiting area, "I will do the blood test". Her evidence was that he went and spoke to a staff member (not a nurse or doctor) and then returned. He took her, collected the equipment for taking blood and took her into a vacant patient room so he could do this. There was no other staff member present. His evidence is that he asked some administrative person if he could take her blood using a patient room and hospital equipment and the person agreed on the condition Patient A paid the pathology fees. 5. There is no evidence that he consulted either of the Doctors who had seen her in the emergency ward before taking her blood and there is no mention in the clinical notes of the practitioner or of any request by him or of blood being taken. The practitioner admits he took blood and at the time he was not involved in Patient A's clinical treatment or management and he was in a personal relationship with her. 6. It was put to the practitioner as an intern in his first month of internship to order the tests he needed the consent of the head of the department. He was also not rostered on. His response to these propositions was that he was relying on Patient A refusing to leave the waiting room. 7. He conceded that when he was taking the bloods a nurse arrived in the room and offered to help. That was not part of any of his versions of what happened on that occasion. 8. In her oral evidence Patient A said that he arranged for her to pay for the cost of having the blood tested and she did so and she paid a staff member at the counter. She could not recall whether it was before the blood was taken or after. She said that once agreement was reached for him to take the blood, he then collected the equipment and took her to an empty patient room near the emergency section of the hospital. He there took blood from her. There was no other staff member present during this procedure. Once the blood was taken, they left the hospital. 9. In cross-examination the attention of the practitioner was drawn to the fact that the discharge of Patient A from the hospital had not been completed when he had taken blood from Patient A. 10. She denied that she refused to have any other person take the blood and denied that after being there two hours she had refused to leave the hospital without having "more done". She denied that she requested that the practitioner and only the practitioner take the blood. Her evidence was that she did not see the practitioner speak to any other staff about taking blood or about taking it if she paid for it. She denied that she requested him to take it. After the blood was taken, she paid, they left the hospital and returned home. 11. He conceded that he knew Patient A had seen a doctor and a senior doctor. When asked: "On what basis, having not examined her, did you think you knew more than a consultant physician?" he avoided the question and said: "GP follow-up would involve blood being taken." Then he was asked: "How would you know if you had never been a GP?". He did not reply. When asked: "Do you see now the conflict between your obligations as a doctor clinically (you didn't think she needed the blood test), and her wish to have your action to satisfy her? he responded: "I didn't see it at the time." 12. In cross-examination his attention was drawn to his previous statements that he had never treated Patient A at the P Hospital. When he was asked: "What did you think taking blood was?" To which he replied: "A procedural task; not treatment. I saw my role as similar to a phlebotomist taking blood." When he was asked whether he still thinks that it was not treatment, he did not respond. He was asked a second time and answered: "No". He said he had previously seen it as a clinical procedure and not treatment. 13. He conceded that he asked her: "Would it help if blood were taken?" and she answered: "Yes". He said that she therefore asked him to do it. He denied that was misleading to say she asked him to do it. 14. He denied that he was involved in her "clinical management" and said that he thought taking blood was "procedural". He conceded that he did interpret the results for her. His attention was drawn to his statement in his letter of 4 October 2016 to the Health Care Complaints Commission: "At no point did I attempt to interpret her results or guide clinical management ….." 15. In his statement of 9 August 2017 he said: "At no point did I attempt to interpret her results or guide clinical management". He was asked in cross-examination who the Emergency Department staff member was that he spoke to about using the equipment and facilities to take Patient A's blood. He said: "I can't say". 16. He was asked how he could say it was a clinical person and he said: "They were "wearing clinical clothing". He later said that by "ED staff" he was referring to one of the triage nurses. He said the person said they would go to see the Emergency Department doctors or "one of the Emergency Department doctors". He did not see that staff member consult either of the doctors on duty who had seen Patient A. He said that it would be good to take blood for testing as it would "overcome the patient's distress and calm her down". 17. In paragraph 16 of his statement of August 2017 the practitioner said that: "I cannot recall if it was the doctors in the Emergency Department at [P Hospital] or Patient A who contacted me asking me to attend on Patient A. When I attended on Patient A she appeared distressed and upset. She was refusing to leave unless there was more done for her." This version is quite different to the version of Patient A who says that he joined her while she was still with the ED consultant and then he and Patient A moved to the waiting area. 18. He said in paragraph 17 of that statement: "and I placed the blood test results, when they became available, in a sealed envelope and gave them to Patient A". He said: "I did not review the results. I told Patient A that she should take them to her general practitioner to discuss" but in cross-examination he conceded that he may have sat down with Patient A and reviewed the blood results." He said: "Possibly we opened them up and discussed them". When he was asked why he did not say that in his statement, he said: "I had no recollection". Again when he was asked why he did not say it in his statement, he avoided the question. It was put to him that he twice denied that he reviewed the results and he answered: "Because when I later recalled the incident I then recalled. I don't usually hand deliver blood results." 19. The practitioner appeared to have difficulty conceding that he raised pancreatitis as a possibility. He initially denied reading the results and had trouble discussing the test and then conceded reading them and discussing them with Patient A, but denied suggesting pancreatitis as a possibility. 20. The next day when the practitioner returned from work, he had the results of her blood tests. Her evidence is that he showed her the results and said that the problem could be pancreatitis. He denied that he told her to take the results to her GP and discuss them. 21. Dr Hansen, who was the more junior of the two (2) doctors in the emergency department who saw Patient A that day completed the discharge notes. They are extensive. They record that she was given Buscopan 10mg tablets and she was to follow up with her general practitioner in the next two days for long term care and follow up. Generally the notes disclosed that she had abdominal pain and the investigations carried out at the emergency department did not identify any cause of the pain. She was given advice to return to the emergency section if the pain worsened or if she suffered "haemetemesis or blood in stool". The patient was provided with a copy of the discharge notes when she left the emergency section before she met with the practitioner in the waiting area. 22. Her evidence was that initially they were together at the reception area and she registered. He then went elsewhere in the Hospital. She then saw the Junior doctor and the Senior doctor. The Senior doctor was with her in the emergency ward when the practitioner returned. She said that at that stage she was "upset that they were sending me away." 23. It was put to her in cross-examination that she was at the hospital and phoned the practitioner "to say that they are sending you home" and he then came to the hospital and joined her in the waiting area. She denied that proposition. She denied it when it was put to her a second time. She said that the practitioner returned while she was being seen by the senior emergency ward doctor. She told the practitioner in the waiting area later that they were "sending her home". She conceded that she told him "they" told her to go to her general practitioner and she told him they were "not taking the pain seriously". She denied she said she wanted the other tests done. She denies she said she wanted blood taken. She denied she was upset. She conceded that she was frustrated that they were sending her home because she had been in pain for a long time. She denied she saw him go to speak to them. She said he told her he would take bloods, but would have to use the hospital resources and that she would have to pay. She said that he took the blood in a small patient room; not a ward. It was put to her that she had the discharge summary in her hand and she answered: "Probably". 24. She denied that she received a letter from the hospital advising her to take the blood results to her general practitioner. She was shown a letter and said she had not seen it before. She was shown another document and when it was put to her that she had seen it before, she responded "It looks familiar". She was shown the letter which is pages 11 – 13 of the discharge summary she was given from doctors who saw her at the hospital and she said it looked familiar. She said she may have read it but couldn't recall. She said that she did receive a phone call from the hospital and they were confused as to whether she had paid. She said she didn't think she had received that letter. She said that the practitioner told her it was his ward where they went to take the blood. "I don't know what ward it was". She said she didn't know whether she read the discharge summary given to her by the hospital doctors. She couldn't remember whether the asked the practitioner to explain anything in the discharge document, but she may have. She said she didn't follow up by seeing her general practitioner in two (2) days' time. She said she talked to the practitioner and the pain was getting less. "He told me to take Ibuprofen. 25. The results of the blood test taken at the hospital on 11 February 2014 show that the referral of the blood for tests by a Dr Alan Forrester, which it appears on the evidence was probably a senior doctor in the emergency department or in the hospital generally. It appears that the practitioner, when submitting the haematology request, chose to make the request in the name of Dr Forrester. Presumably as an intern in his first month, the practitioner's work was required to be supervised by a more senior practitioner. The test request forms do not show the practitioner's name as the person referring the blood for testing nor as the person who collected the blood. 26. Patient A said she had previously also seen another general practitioner in the general area of the P Hospital. She said, though, that she didn't attend any other health practitioner after that because she relied on the practitioner because of their close personal relationship. She conceded that the other doctor she had consulted in the area did not prescribe anything for her and probably told her to come back if she had any further problems. She said that she also saw him in April 2014 after her injury to her left knee and he concluded that she should continue to come back to see him in two (2) weeks if the knee was still a problem. She went back to see him. The knee was still causing her some pain, but not as bad as before. He ordered a scan of the knee. It apparently did not disclose any further problem. She said she didn't go back to see him a month later. She denied that the practitioner kept telling her to go to her GP. 27. On 11 February 2014 less than a month into the practitioner's internship, when he was cohabiting with Patient A and in an intimate relationship, without supervision by a more senior practitioner, and without consulting either of two practitioners who had decided not to take blood from patient A for testing, and when he was not acting within his duties at the P Hospital, the practitioner took blood from Patient A and arranged for it to be tested. He made no clinical record. In his reply dated 18 September 2017, the day before the hearing commenced, the practitioner denied that it was inappropriate for him to take blood tests from Patient A as he did. But in oral evidence in chief on the morning of the second day of the hearing he amended the reply to admit that the conduct was inappropriate. 28. The surrounding circumstances were such that his conduct was inappropriate. Dr Christie also opined that his conduct was significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience applicable at the time of the conduct. 29. His conduct was clearly unsatisfactory professional conduct. Complaint One Particular 3 — Patient A - communicating blood test results 1. When the practitioner on 11 February 2014 took blood from Patient A and caused tests on the blood, he did not carry out any clinical assessment or investigation for the hospital file or at all. He did not read the hospital file. He did not make any clinical notes. Whereas he had in his reply dated 9 August 2017 denied that he inappropriately communicated the results of the blood test to Patient A, on the second day of the hearing he admitted that it was inappropriate. 2. Patient A testified: "About a day or two after Sam came home and gave me my blood test results. Sam told me that it probably was Pancreatitis. I didn't get any medication for pain relief from hospital or other Doctors, but I was taking Ibuprofen and Paracetamol every four hours, as Sam told me to …" She recorded in her journal that he told her it could be pancreatitis. 3. Notwithstanding his statement in August 2017 to say that he provided the results of the blood test to Patient A in a sealed envelope and did not discuss them with her, he said in his letter of 29 January 2016 to the HCCC: "On one occasion she did request I be the one to take her blood, and provide her with a copy of her results and help her understand what her paperwork said, which I did for her." 1. Dr Christie's opinion is, and the practitioner admits, that the practitioner's interpretation of the blood test results given to Patient A was wrong. Dr Christie advised that the results were much more suggestive of a mild gastritis than pancreatitis. He says that this demonstrates the fundamental confusion over the doctor/patient relationship; where the practitioner was not patient A's treating doctor and not involved in her clinical management, but had an intimate relationship with her. No other doctor was aware the tests had been taken or the results. He made no clinical notes for the hospital file. 2. Dr Christie found the practitioner's conduct to be significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience applicable at the time of the conduct. It was unsatisfactory professional conduct. Complaint 2 Particulars 4, 5 – inappropriately prescribing Amitriptyline and Trimethoprim for patient B but without appropriate clinical assessment and without creating a proper clinical record. 1. The practitioner admits that on 15 January 2015 he gave Patient B a script for Amitriptyline at a time when he and Patient B were in a personal relationship. (particular 4). He admits that on about 17 August 2015 he gave patient B a script for Trimethoprim when he was in a personal relationship for patient B. (particular 5). Duplicates of the 2 Scripts are in evidence. There is no suggestion that Patient B had a consultation with the practitioner at the hospital which generated either script. 2. The practitioner alleged in his statement that 17 August 2015 Patient B contacted him complaining symptoms of UTI and told him she had recurring UTIs for which she often received a prescription of antibiotics from her GP. He says he told her to consult her GP. Then he said he saw her that evening at her residence and she told him that she was unable to get an appointment with her GP. He says that he then thoroughly examined her and took a detailed history. He also alleged he made clinical notes and then wrote the prescription for Trimethoprim. 3. There are allegations by the applicant that the practitioner provided these prescribed medications without:- 1. Appropriate clinical assessment and investigation, including taking a full history and conducting an appropriate examination; and/or 2. Creating a proper clinical record. 1. When the application and the complaints were served on the practitioner on about 4 May 2017, he would have become aware that the applicant was alleging that the practitioner inappropriately provided Patient B with the subject two prescriptions without appropriate clinical assessment and investigation and without creating a proper clinical record. In his Reply filed 9 August 2017 he denied the allegations that on those occasions he failed to carry out an appropriate clinical assessment and investigation, including taking a full history and conducting an appropriate examination and failed to create a proper clinical record. It was not until 1 September 2017 that he filed his statement of 9 August 2017 and there alleged he made contemporaneous clinical noes for both occasions, which he alleged were made on each occasion on his personal laptop. Copies were attached to his statement. In his reply of 8 August 2017 the practitioner had alleged that he had in relation to particulars 4 and 5 of Complaint One made in each case when he had issued a prescription to Patient B he had carried out an appropriate clinical assessment, including the taking of a full history and conducting an appropriate examination and created a proper clinical record. But on the second day of the hearing he conceded that on both occasions he had not created a proper clinical record. 2. He testified in oral evidence that he believed until advised otherwise by his counsel on the first day of the hearing (19 September 2017) that those notes were proper and adequate clinical notes recorded from an appropriate clinical investigation and assessment. 3. But there is no evidence that in more than four months since he had notice that the Applicant was alleging he had made no proper clinical record on these occasions, he informed the Applicant that he had made such records or provided copies to the applicant. That caused the tribunal concern that the alleged clinical notes might not be contemporaneous and might have been prepared by the practitioner after the complaints to the Applicant. 4. There were other matters that also caused the Tribunal to have concerns as to whether the clinical notes were genuine. One was that his alleged conduct of making extensive assessments and elaborate clinical notes to support the giving of a prescription is not consistent with his cavalier and arrogant attitude to professional responsibilities demonstrated by his breach of professional boundaries, sexual activities with Patient B while on night shift and on call., interactions with Patient C when she was a patient and he was an Intern on night shift, failing to create clinical notes when on duty he reviewed Patient C's medication, taking blood from patient A in the hospital when he was an intern without supervision and not on duty, failing to read her clinical notes, failing to consult either of the 2 doctors in Emergency who had decided that taking blood was not appropriate, and failing to make any clinical note of his involvement. 5. At the hearing the practitioner conceded on advice that the purported clinical notes were not a "proper clinical record" as they were in his laptop and not accessible to any other health practitioner. The Tribunal also found that the practitioner was a less than credible witness. 6. The conclusion of the Tribunal is that the alleged clinical notes were not made contemporaneously, but probably after 4 May 2017, and the alleged examination, investigation, and assessment described in them did not occur. 7. When asked about why he did not reveal the alleged clinical notes on his laptop for the consultation supporting his prescription for Amitriptyline given to Patient B on 15 January 2015 in his response in October 2016 to the HCCC, the practitioner said that he did not have access to his laptop because it was in Sydney. When asked how many times he went to Sydney during the interim, he avoided the question and said "I only once accessed the laptop". 8. It was put to him that "Nothing stopped you accessing the laptop and sending the document to the HCCC?" to which he replied: "I was accessing further information". When asked: "It was that critical to your defence why not?" He answered: "I took advice." It was put to him: "The clinical record always existed?" To which he replied: "But it wasn't always in my reach." 9. When asked what he says is not "proper" with the alleged clinical records he alleged he had constructed on his laptop, he replied: "My lawyers told me storing it on my laptop is not an adequate record. It is not accessible by others." 10. He testified that the first time that it was raised with him that the alleged clinical record for 15 January 2015 was inadequate was on the second day of the hearing (20 September 2017). He denied the document was a forgery or was not genuine. 11. In his statement of 9 August 2017 he says that he took a detailed history on the occasion and then he says that he sought advice from Avant's website on whether it was appropriate to issue the script. It advised that it should be avoided if possible and recommended retaining an appropriate record of the script. He then says: "I wrote a clinical note on my laptop which is annexed to this statement and marked 'SV4'". He does not specifically state when he wrote the clinical note. 12. Similarly in relation to the alleged clinical notes of 17 August 2015 regarding the prescription for Patient B of "Trimethoprim", he states that he made the clinical note before he wrote the prescription. 13. The journal entries on 29 January 2015 of Patient A record that the script was obtained on 29 January 2015 he denied the document was a false document. When it was put to him that it was not created at the time of the consultation, he said it was created a day later. 14. His attention was drawn to his statement and it was put to him that when he made the statement six weeks before the hearing attaching the record, it was "an opportune time to have said when you made the clinical records, but you didn't". He answered: "I didn't see that." 15. He said that before he went to her house he consulted Avant Law. 16. The practitioner denied that the alleged clinical notes of 17 August 2015 regarding the consultation with Patient B were "entirely false and misleading". He said they were made within 24 hours of him giving the prescription. He conceded that at 11:20 am on that day a chemist and a general practitioner were available in the town. He admitted that on 16 August 2015 he received a text from Patient B saying that she wanted antibiotics. His response by text message said that he would get her some the following day. He did not see her until the next day. Exhibit "A3" shows that on Sunday 16 August 2015 Patient B texted him asking if he could get her some antibiotics. He responded by a text message. On Sunday 16 August 2015 at 11:21 am he received a text message from Patient B which says: "Happy Sunday. Babe can I pls trouble you for some antibiotics today? I can manage with Panadol and Nurofen until this evening but it is … painful … and I don't have the energy to fight it myself. It's been lingering since last week. Thanks xx" 1. He responded:- "Oh no. OK I will get you some tomorrow. Hope you're enjoying this weather!" 1. He did not see her until the next day and only then after she texted him at 7:52 am on Monday 17 August asking if she could please have a script today. He responded at 9:42 am saying: "Yes, I will bring them. Trimethoprim is better than Cephalexin." 2. Patient B responded at 12:00 noon and said: "Whatever you recommend." 3. The practitioner in cross-examination conceded that there was "plenty of time" from 7:52 am on Monday 17 August 2015 for Patient B to see a general practitioner and obtain a script. There were no extenuating circumstances that justified him breaching professional boundaries and prescribing for her instead of advising her to see a general practitioner. Also, she complained to him of pain at 11:21 am on 16 August and the clinical notes he prepared say that he saw her at 8:00 pm on 17 August. 4. He said in the alleged clinical notes that the patient was unable to go to a general practitioner. He conceded in cross-examination that she did not say she was unable to attend a general practitioner. 5. Clearly it was not a situation where there were extenuating circumstances justifying him breaching the professional boundaries. 6. In cross-examination he said that he had previously admitted prescribing Cephalexin for Patient B but the prescribing record did not show that. When asked how that occurred, he said that his response was to the HCCC letter and he was having trouble remembering which "two things I prescribed for her". He said Cephalexin but that was not correct and he said in his letter to the Health Care Complaints Commission of 4 October 2016 that he gave Patient B a script for Cephalexin, but he should have said a script for Trimethoprim. He also said in his letter to the HCCC of 4 October 2016: "It was under these circumstances that I wrote her a script for Cephalexin, as a last resort, which was filled after business hours. I can only recall doing so on one occasion, but it may have happened twice." 7. He said at the time he wrote the letter, he did not have access to his laptop and the medical record of the two scripts was in his laptop with password protection. He said that he wrote that he had given a script for Cephalexin because it was Cephalexin that he was alleged to have prescribed. 8. He said in cross-examination that on the occasion of 15 January 2015 he did not prepare a prescription until after he had seen Patient B at her home and completed a physical examination. However, his text message to her before he went to see her was: "Yes. I'll bring them." 9. In relation to particular 5 of Complaint One he said he wrote the script and believed that it was dispensed the next day (17 August). In his statement at paragraph 26 he said there were extenuating circumstances. But he conceded that she could go to a general practitioner the following morning. Then he said that she might have problems getting an appointment. The evidence did not establish an extenuating circumstance in relation to the prescription he provided on 16 August. It was put to him: "You took extenuating circumstances to mean inconvenience? You brought the Cephalexin and Trimethoprim from the hospital?" To which he replied: "I don't think that's correct. I brought home paracetamol once". 10. Dr Christie's report notes that it is legal for fully-registered practitioners to write S4 medication scripts for family and friends, but the practise is not encouraged and should only occur in extenuating circumstances. 11. He said that by prescribing S4 medications for Patient B the practitioner was assuming the role of a treating doctor. In accordance with the requirements of practise he should have created a proper clinical record for the encounter. That report as part of the volume of documents served by the Health Care Complaints Commission, was filed with the Tribunal on 1 September 2017 presumably served on the solicitors for the practitioner on about that date. 12. Dr Christie referred to the Code of Conduct, and Good Clinical Practice and the AHPRA website. He said that they note that whilst it is legal for fully-registered practitioners to write S4 medication scripts for family and friends, the practice is not encouraged and should only occur in extenuating circumstances. 13. Dr Christie also said:- "Additionally, by prescribing S4 medications for [Patient B], Dr Vigours is assuming the role of a treating doctor. In accordance with the requirements of practice he should have created a proper clinical record for the encounter. Dr Vigours is clearly aware of this requirement as his statement to the Commission notes as part of his defence that he has not created any entries in the medical record in relation to [Patient A's] treatment, which would be required if he was her doctor. … Arising from this is a concern about the due diligence with which Dr Vigours discharged his duties of the role he had assumed as treating doctor, the extent to which Dr Vigours provided an appropriate detailed clinical assessment of a patient presenting him with recurrent UTI. The documentation I have indicates that [Patient B] suffered at least four episodes of urinary tract infection. The presence of recurrent urinary tract infection should prompt a doctor to complete a full history, conduct an appropriate examination, and arrange investigations which should include a urine culture, renal function testing, and imaging of the urinary tract. There may also need to be further investigation depending on the findings on history, examination and simple bloods. By assuming the role of treating clinician and failing to attend to this aspect of care, Dr Vigours left his patient/girlfriend [Patient B] open to the risk of complicated, undiagnosed renal disease, and himself open to possible allegations of negligent practice. This standard of practice is commonly understood by competent medical students prior to entering into internship, and I would expect a doctor of Dr Vigours' seniority to be aware of the need to investigate a recurrent UTI appropriately. For all these reasons, Dr Vigours' behaviour in this area fell significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience, applicable at the time of the conduct." 1. The Tribunal therefore finds that particulars 4 and 5 of Complaint One have been proved and each constitutes unsatisfactory professional conduct. Complaint One Particulars 1, 6 and 7 – Alleged Provision of Cephalexin, to Patient A and Patient B and Alleged Provision of Trimethoprim to Patient B 1. Patient A and Patient B each made allegations that the practitioner had supplied the patient with Cephalexin obtained from the P Hospital. Patient A alleged it happened to her in about February 2014. Patient B alleges that between November 2014 and August 2015 he inappropriately provided her with a quantity of Trimetheprim from the hospital and in the same period he inappropriately provided her with a quantity of Cephalexin. The practitioner admits that for the period specified for each of the patients, the practitioner was in a personal relationship with that patient. 2. Late in her oral evidence Patient A was able to specify the date as 29 January 2014. At that time of the alleged supply to Patient A the practitioner was in the first month of his internship and in his orientation stage. At the time of the alleged supply of Cephalexin to Patient B, the practitioner was either still an intern or had from January 2015 been a resident. 3. Patient A's evidence is that the practitioner provided her with Cephalexin from the hospital on 29 January 2014 and there was a patient name on the packet.. Patient B said that the packet did not have a patient name on it but there was a tablet missing from one packet. She said he told her words to the effect: -"Oh yeah, the nurses probably used it." 4. In his letter of 29 January 2016 to the Health Care Complaints Commission, the practitioner stated: - "Whilst [Patient A] was in a relationship and living with me, she suffered multiple medical complaints. I never attempted to treat these professionally, and booked her in to see GPs including Dr Richard Gordon, and a doctor at [P Medical Practice]. [Patient A] also presented to [P Hospital] Emergency Department twice, and was treated by doctors other than myself. I was never involved in her clinical management, and this will be reflected in her clinical record. On one occasion she did request I be the one to take her blood and provide her with a copy of her results and help her understand what her paperwork said which I did for her. The only medication I brought for her from P Hospital was paracetamol." 1. The practitioner denies he provided Cephalexin to Patient A and denies he provided it to patient B. Pharmaceutical records for each patient do not include any record of him prescribing Cephalexin for either of them. The Pharmaceutical records for Patient B is in evidence and a copy of a script by which he prescribed Trimetheprim to Patient B on 17 August 2015, but there is no record of any prescription for Trimetheprim by patient B in the period of November 2014 to August 2015 other than the prescription of 17 August 2015.. He denies that he provided Patient A in about February 2014 with a quantity of Cephalexin obtained from the P Hospital or at all.. He admits that he prescribed Amitriptyline to Patient B (and they were in a personal and sexual relationship) on 15 January 2015. He admits he and Patient B were in an intimate and sexual relationship for the period November 2914 to August 2015.. The practitioner denies that he provided Patient A or Patient B with Cephalexin from the [P Hospital]. He also denies that he gave Patient B Trimethoprim from the [P Hospital]. He denied that the provision of the medication was outside his allocated intern position. No clinical records were in evidence relating to the alleged supply of any of the medications in particulars 1,6,& 7 of Complaint One.. 2. In her complaint to the applicant Patient A made the following relevant allegation: " - Dispensing medicine under another patient's name: He brought me medication (Cephalexin) on 29.2.2014 from [P Hospital] and put it under another female patient's name. There was another name on the package. He just brought it back home after work around afternoon. 1. She gave more details in her later statement of 9 April 2016; 6. In February 2014 I had a Urinary Tract Infection (UTI) that was not getting any better. On 29 February 2014 I had a conversation with Sam through the Whatsapp messaging application and asked him to get me something for the UTI. I was at home and Sam was at work at the Hospital and the messages were as follows with words to the effect of:- Me: Can you bring me something for the UTI after work? Sam: I can't bring you something from the Hospital because you would have to apply for admission to be in the hospital system. I will see what I can do. Me: Can you bring me something from the pharmacy then? Sam came back home with Cephalexin. It was a new package in a box and it had a sticker with someone else's name on it. It was a female's name, but I can't remember the name that was on it. It was a small packet of about 10 tablets or so, as far as I can remember, enough to give me about one week's supply. Sam did not give me any antibiotics apart from this time. He gave me Ibuprofen though. The UTI was reoccurring and Sam did try to get me to take antibiotics for it. There were no antibiotics in the house. He was pressuring me to take antibiotics and if I agreed he would bring some home for me. I did not want to take antibiotics and wanted to make it go away normally by drinking lots of fluids. I did end up seeing a doctor close to [the P Hospital] about the UTI and he did a test but it did not come back showing anything. But I was in pain, so there was something wrong. 1. Patient A testified that she was able to identify the Cephalexin because her parents are nurses and she has an allergy to Trimethoprim. She took a photograph of the packet with her mobile phone. She recalled that the box had someone else's name on it. She said from her memory she believes that she exchanged texts with her parents. She said she sent the photograph of the package to her parents, who are both nurses, to make sure that she was not allergic to the medication. When she was asked about her not producing the photograph in these proceedings, she said that her mobile telephone containing the photograph was stolen two years ago when she was travelling in Peru in October/November 2015 and she has not recovered the photograph. 2. When it was put to her that at no stage had the practitioner provided her with the antibiotic Cephalexin, she insisted that he did and that she had written it down and sent a photograph of the box to her mother. When asked how she could be so specific about the date of 29 February 2014 as the date on which he brought Cephalexin to her from the hospital, she said that she made a record on her journal and also in an online blog. She conceded that she hadn't given these to the Health Care Complaints Commission. She said she still has the online blog but no longer has that journal. 3. But there was no 29 February in 2014. When this was pointed out to her, she said: "It would have to have been 28 (February) or 1 March". 4. In re-examination she orally detailed events she had attributed in her statements to 29 February 2014. She came to the conclusion that the date of him bringing home the Cephalexin was actually 29 January 2014. She had seen the relevant pages of her Journal overnight and explained her error by the fact that the relevant page was headed "January/February and included some dates in each of the months. She had wrongly attributed the entry for 29th as being for 29 February instead of 29 January. 5. She said that the practitioner provided her with the antibiotic Cephalexin before she took the plane to return to Sydney from the town where the P Hospital is located. 6. After Patient A realised that the correct date for the alleged conduct of the practitioner of giving her Cephalexin from the P Hospital was 29 January 2014, Patient A provided an affidavit to which were annexed copies of the relevant five pages of her 2014 diary including 29 January 2014. There was also Exhibit A4 which is a print out of pages of her blog written in German and a translation in English. The journal is in the custody of Patient A's mother in Germany. She was able to obtain copies of the relevant pages overnight from her mother. She also gave evidence from her online blog in German which she created for her trip to Australia. The entries in the journal include as follows:- "16 January 2014 records that the practitioner moved to the town where the P Hospital is located. On Friday 24 January 2014 Patient A drove to the town and was at the time taking Paracetamol. On 25 January 2014 stomach pain. stomach pain from 27 – 31 January. 3 February saw Br Gordon; 6 February had ultrasound he ordered. 1. The diary discloses that she stayed in the town where the P Hospital is located until 29 January 2014 and had stomach pain from 27 – 31 January, which she thought was a urinary tract infection. She recorded that she was taking Paracetamol and Ibuprofen. On 29 January she messaged the practitioner and asked if he could bring home something for her UTI. It is recorded that when he returned from work he gave her the antibiotic Cephalexin. 2. Patient A's evidence is that at the time of doing her "initial research I got mixed up looking at this journal entry because it was the week for the end of January and the start of February". She had interpreted the 29th as 29th February, when it was 29th January. 3. There is a journal entry that she attended on Dr Gordon on 3 February 2014 and had the ultrasound he requested on 6 February 2014. 4. In the Section 40 Response of the practitioner to the Health Care Complaints Commission in response to the allegation that between November 2014 and August 2015 he wrote prescriptions for UTI's on two occasions and on a further two occasions brought her Cephalexin and Trimethoprim from the hospital., he said that she contacted him late in the afternoon saying she was suffering 'urinary symptoms consistent with her recurrent UTI, and unable to get an appointment with her GP on such short notice. "It was under these circumstances that I wrote her a script for Cephalexin as a last resort, which was filed after business hours. I can only recall doing so on one occasion, but it may have happened twice … I prescribed the above treatment only because of the extenuating circumstances. At this time I was a Resident Medical Officer." 5. In relation to particular 1 of Complaint One the practitioner said in his cross-examination that he did not have access to Cephalexin. That was the first time that he raised that defence to particular 1. He said that he was still in his orientation as an intern and did not have access to Cephalexin in the hospital. When he was asked why it was that it was not until the hearing that he said that he was in orientation and raised this proposition and he said that he had thought it was only for February. He was asked whether he was now saying that the week before February he did not have physical access to such medication. He avoided the question. Eventually he agreed to that proposition. But it appears from other evidence that his orientation as an intern commenced in mid-January and continued into February. 6. He was then asked why he said in his statement that he said in his letter of 29 January 2016 to the Health Care Complaints Commission in reply to its letter of 4 October 2016: "I did not steal another patient's antibiotics in order to treat [Patient A]. It is not in my character to deprive another patient of needed treatment in order to treat a personal acquaintance." 1. He was asked why he said that if the answer to the allegation was that he did not have physical access to the relevant medications, as he alleged in his cross-examination on 21 September. When he was asked why he raised that defence he said that it was implied. He denied it was his "guilty mind". 2. He denied that he was "in the habit of getting medication for girlfriends". 3. He conceded that he prescribed Cephalexin for Patient B and conceded that her prescribing record does not show such prescription. When asked how that could occur, he said he was living out of a suitcase at the time. His answer was not responsive. One possibility is that there was no script because he obtained the medication from the hospital. 4. The practitioner was notified in the Section 40 letter from the HCCC dated 30 August 2016 that the HCCC had obtained an expert opinion:- "That by prescribing or acquiring medication for your girlfriend [Patient B] for her recurring UTI and failing to provide appropriate assessment, investigation and documentation, was significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. This attracted the expert's strong criticism." 1. In his reply he denied that in February 2014 he took her Cephalexin acquired from the hospital. He also said in a letter to the Applicant:- "The only medication I brought for her from [P Hospital] was Paracetamol. This was on one occasion when I was working late shift and unable to attend a pharmacy. I asked the nursing staff if I could take some Paracetamol tablets home to treat her pain overnight until I could purchase more from the chemist. This is not a routine practice for me, and my personal medicine cabinet is stocked with purchased medications." 1. In cross-examination he admitted that he had made an admission in correspondence with the Health Care Complaints Commission that he prescribed Cephalexin for Patient B but the records of her prescriptions dispensed included no record of that prescription. He then said: "I was troubling to remember the two things I prescribed for her." He said he had provided Patient B on 15 January 2015 with a prescription for Amitriptyline. He stated that in his statement of 9 August 2017. But he said in his oral evidence that he should have referred to Trimethoprim. However, the dispensing history for Patient B for 2015 does not include any prescription for Trimethoprim. One possibility is that his recollections are of Cephalexin and Trimethoprim that patent B says he supplied from the hospital. 2. In relation to particular 6 of Complaint One he said he wrote the script on 16 August and believed that it was dispensed the next day (17 August). In his statement at paragraph 26 he said there were extenuating circumstances. But he conceded that she could go to a general practitioner the following morning. But he said that she might have problems getting an appointment. The evidence did not establish that it was likely that she would have problems. There was no evidence of any extenuating circumstance in relation to the prescription he provided on 16 August. 3. It was put to him that he brought home Cephalexin and Trimethoprim from the hospital and: "You took extenuating circumstances to mean convenience? to which he replied: "I don't think that's correct. I brought home paracetamol once." 4. The Tribunal finds that both Patient A and Patient B presented as more reliable witnesses than the practitioner. Each of them alleged that the practitioner had given her Cephalexin from the P Hospital. Patient A gave evidence that satisfied the Tribunal as to how she received the item and that it was Cephalexin that she received. The Tribunal prefers the evidence of Patients A and B to that of the practitioner in relation to the issue of whether he provided each of them with Cephalexin. The practitioner as at 29 January was in the first month if his internship. 5. Given the findings in relation to the Cephalexin allegations and also the previous findings in relation to the practitioner's credibility and conduct, the Tribunal is satisfied on the balance of probabilities that the practitioner also gave Patient B Trimethoprim as alleged in Particular 7 of Complaint One. 6. Dr Christie said that his limited registration at that time as an intern "Only enabled you to provide medical care under supervision to identified patients of the hospital. Your registration did not entitle you to legally write prescriptions or acquire medications for any person outside of that context." 7. The occasions on which the practitioner provided Cephalexin to Patient A occurred while the practitioner was in the first month of his internship; in the orientation period. The occasions on which the practitioner provided Cephalexin and Trimetheprim to patient B occurred in the period from November 2014 to August 2015. If it was before mid-January 2015 the practitioner was only an intern. If after mid-January 2015, he was a Resident Medical Officer.. Patient A occurred while the practitioner was in only an intern. 8. Dr Christie had regard to several matters: * Para 4.4.2 of the NSW Health Code of Conduct that requires that hospital staff must use goods provided by the hospital for work-related purposes only and the practitioner's breach of that on each occasion; * his conditional registration as an intern - when he supplied Cephalexin to patient A. He had no authority to do so; * By such conduct he assumed the role and responsibilities of a treating doctor; and * In that role he each time failed to discharge his obligations to undertake an appropriately detailed examination and assessment and arrange appropriate investigations and tests and he failed to create any clinical record or entries in the hospital clinical record for the patient. 1. Doctor Christie's opinion is that the conduct of the practitioner on each of the 3 subject occasions was significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience, applicable at the time of the conduct. His evidence is that this standard of practice is "commonly understood by competent medical students prior to entering internship". 2. Accordingly, for each of the 3 instances of supplying medications from the hospital, the practitioner's conduct was unsatisfactory professional conduct. Complaint Four 1. Complaint Four alleges that the practitioner is guilty of professional misconduct. The Tribunal is satisfied on the evidence that the practitioner is guilty of professional misconduct as defined in paragraph 139E(b) being:- "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 unsatisfactory professional conduct the subject of the complaints involves such serious instances of inadequacies in his competence as a medical practitioner and disregard of his responsibilities and duties in that role that when considered together they amount to conduct of a sufficiently serious nature to justify the suspension or cancellation of the practitioner's registration. The Practitioner 1. The practitioner graduated with a Bachelor of Arts degree at the University of Sydney in 2009. Part of his studies included three years of psychology. He graduated in 2013 with a Bachelor of Medicine and a Bachelor of Surgery from the University of Sydney. 2. In 2005 – 2013 he managed his own information technology services company in Sydney contracting services to private businesses supporting himself while studying. 3. In 2014 – 2015 he worked as an intern and then an RMO at the P Hospital and another hospital and a nearby district hospital. 4. In 2016 he worked at Darwin Hospital in the Emergency Department as a medical officer, later in the same role at the Mackay Hospital in Queensland and then the Atherton District Hospital in April – May of that year and later the Cairns Hospital in September that year. 5. From 2016 onwards he worked at a hospital in Adelaide as a registrar in the Intensive Care Unit. In July 2014 he was appointed as a Conjoint Associate Lecturer in the Rural Clinical School of UNSW and in that role from 1 January 2014 – 1 March 2015 he lectured rural medical students on some topics. 6. In mid-2013 he assisted with research regarding pre-operative pregnancy screening methods. From mid-2014 until early 2015 he assisted with a literature review on Placental Growth Factor with a professor from the University of Royal North Shore Hospital. 7. In 2015 over 3 days he completed the course in Advanced Paediatric Life Support and the qualification is valid for five years. 8. From January 2016 to December 2016 he was not employed in a hospital, but at the time of the hearing he was still employed at the hospital in Adelaide and had been working there 12 months. 9. Dr Bellings worked with the practitioner for 2 years until January 2016. He is a registrar in the Intensive Care Unit at the P Hospital. He describes the practitioner as having a "utmost professional approach to his work and patients". He described his level of integrity as "high". He says that the complaints against the practitioner "are completely out of character and are simply not actions that Dr Vigours would have taken". He says that the complaints are "incongruent with my overall impression of him as both a friend and a professional colleague". 10. Dr Bellings does not disclose in his letter what he has been informed are the complaints before the Tribunal. Dr Bellings refers to "episodes of unsatisfactory conduct", as detailed in the letter in the notice of complaint by the Health Care Complaints Commission as "simply not actions that Dr Vigours would have undertaken" and "are incongruent with my overall impression of him as both a friend and professional colleague". 11. It has to be of some concern to the members of the panel that because it appears that Dr Bellings does not believe the practitioner is guilty of the conduct alleged against him and therefore has not taken into account such conduct in his assessment of the professionalism and integrity of the practitioner. He describes the practitioner as having "the utmost professional approach to his work and patients", "a high level of integrity", and "consistently demonstrated the core values of conduct as set out under the Australian Health Practitioner Regulation Agency Medical Officer Code of Conduct and also the NSW Health Code of Conduct". 12. Dr Bellings describes the practitioner as "empathetic" towards his patients and his practice as "a consistently excellent standard throughout his internship and residency, always deferring to senior staff for aid in the management of complex patients and seeking help with difficult decisions or clinical problems". He describes the practitioner's prescribing as "of an excellent standard". He also referred to the practitioner's "thorough documentation of his history and physical examination". 13. The reference of Dr Bellings is the only reference by a medical practitioner, who has worked with the practitioner. He worked with the practitioner from January 2014 to January 2016 at P Hospital.as a fellow intern and then fellow RMO. 14. At the time of the hearing it was three years and eight months since the practitioner commenced working in the P Hospital and the practitioner had since then also worked in five other hospitals. But he did not rely on evidence from any medical practitioner who worked with him in any of those and of particular note is that for someone who presented himself very positively as a junior, he did not rely on a reference from the Director of Vocational Training of the P Hospital or one of his supervisors during his internship or his time as an RMO... 15. Associate Profession McColl from the University of New South Wales Faculty of Medicine gave the practitioner a reference dated 2 February 2015. He, in that reference, said that in the past two years the practitioner had regularly given lectures and tutorials to medical students of a high standard, had run bedside tutorials for "phase two students", had regularly helped students in the wards and in ED and ICU, and had been an examiner for the "phase two examinations". He described the practitioner's contribution to the faculty as "outstanding". Professor McColl obviously gave that reference without any knowledge of the conduct complained of in these proceedings as the first reports were in November 2015.. 16. In answer to a question from a member of the panel, the practitioner said that in the first two years as a doctor he had problems with hubris and also with "being younger". He said that "looking back I am appalled at how I behaved. I have put in a lot of work in subsequent years to develop my practice and understandings of professional boundaries". 17. He was asked about the absence in these proceedings of character references by any referees and he said that was because he was using them for job seeking and the referee might withdraw the reference if asked. He conceded that his current supervisor could have provided a reference for the proceedings. 18. In answer to a member of the panel, he conceded that having sex while on duty was "horrendous" behaviour. But he appeared to place blame on Patient B, because he said: "It was [Patient B] who offered me food and came." He said he has learnt from his mistakes. He also said he has told Dr Bellings of the nature of the complaints. When asked by a panel member about his conduct when re-charting the medications for Patient C without seeing her, he said: "It was common to do that to re-chart medications without seeing the patient." 19. When a member asked him to explain the difference in the record of consultation with Patient B with no record regarding the re-charting for Patient C, he said: "It wasn't a different diagnosis." 20. When he was asked by a panel member whether he had thought about the effect on his relationships with the doctors who had seen Patient A before he took bloods from the patient he said he had and that he felt it would have been a bad effect. When asked about break times and whether he considered that if he was required he would have to leave a meal break and go and attend an emergency, he said that he receives a phone call and there are often non-urgent issues and with instruction a nurse can attend to them. He said with very urgent matters a mobile phone is used as a pager and goes into a buzzing mode. He said there are about seven doctors on duty at night in the hospital. He denied that having sex on his break with Patient B would delay his attendance at an emergency. 21. He said that he does not accept that it is a personality issue that he has such views. He said that he has changed since those incidents in late 2015. He said that if he thought he had a problem with his personality he would have sought help. He said he had not contemplated seeking advice from a psychologist or psychiatrist and had been in an intimate relationship with his present partner for two years. Apparently they commenced an intimate relationship in about September 2015. CONCLUSIONS 1. The incidents of unsatisfactory professional conduct by the practitioner are numerous. Some involve dishonesty. They have involved serious neglect of the interests of Patients A. B. and C and of other patients. He has breached codes and other legal standards that applied. He ignored the decision of two other doctors about taking bloods from Patient C. The conduct complained of has involved serious arrogance and overconfidence in his competence as an Intern or new RMO. It has included conduct in those roles that suggests that in his work as a medical practitioner he may fail to recognise and address ambiguities or complexities in diagnosis and treatment and may not adequately respect the opinions of other medical practitioners. His unsatisfactory professional conduct reflects poorly on the profession. 2. The practitioner raises hubris and being "younger" as reasons for his poor behaviour. He testified that he has "put in a lot of work to develop my practice and understandings of professional boundaries." But his denial that sexual intercourse occurred with patient B while rostered on night shift until the hearing, his persistent defence of meal break times being his "own time" and other aspects of his evidence indicate a serious continuing lack of insight into the standards of professional behaviour expected of medical practitioners and fails to demonstrate regard for the welfare of patient A and B by subjecting them to unnecessary cross examination in an effort to serve his self-interest. 3. The applicant seeks that the practitioner's registration be cancelled and a period of 12 to 18 months be specified as the period before he can reapply for registration. Counsel for the practitioner advocated there be no suspension or cancellation but a reprimand, and a requirement for the practitioner to complete an ethics course 4. It is of serious concern that notwithstanding that he has been on notice of the investigations and complaints since at least the applicant's letter to him of 18 December 2015; he has not relied upon any supportive evidence from a more senior professional colleague who has worked with him. Nor has he relied upon evidence by a colleague who has worked with him since 2015. He has chosen to rely only on a work reference from a contemporary from 2014 and 2015. 5. Subsection 149C(1) of the National Law, provides that where the Tribunal finds a medical practitioner guilty of professional misconduct, it may suspend or cancel his Registration. The practitioner has been found guilty of professional misconduct. Under subsection 149C(7) the Tribunal may also order that an application for review of the cancellation order not be made until after a specified time. 6. The complaints established and the practitioner's lack of insight is so serious that the practitioner's registration should be cancelled. That result should serve as a deterrent to the practitioner and other practitioners. It should give the practitioner time by coursework and reading to understand and embrace proper ethical and professional standards. 7. Cancellation should protect the public, the reputation of the medical profession and the confidence of the public in that profession. Cancellation is appropriate rather than mere suspension, because the practitioner should, if he wishes to resume practice as a medical practitioner, have the onus of proving that he is a fit and proper person to be a medical practitioner. 8. The Tribunal has determined that the Practitioner not be permitted to apply for review of the cancellation order for 3 months. That period is adopted in the knowledge that even if he applies promptly after 3 months, investigations and the process for determination of his application will take some time and it is likely to take some months. 9. The Tribunal has also determined that pursuant to Section 149 and subsection 149A(1) of the National Law, the practitioner should also be reprimanded COSTS 1. The applicant seeks an order for the respondent to pay the applicant's costs. The applicant has been successful in its application. The practitioner has been found guilty of professional misconduct. 2. The applicant sought an order for cancellation of the practitioner's registration. The applicant has succeeded in obtaining that. 3. The respondent did not establish any factor that would seriously weigh against or mitigate a costs order to the successful applicant and therefore there should be a costs order as sought by the applicant (HCCC v Philipiah [2013] NSWCA 342). PRIVACY 1. The privacy of patients referred to in these reasons should be protected by a non- publication order. ORDERS 1. Accordingly the orders of the Tribunal are:- 1. The Respondent practitioner is guilty of professional misconduct; 2. The respondent practitioner is reprimanded; 3. The respondent's registration as a medical practitioner is cancelled; 4. The Respondent may not apply for review of this cancellation until after three months from the date of these orders; 5. The respondent must pay the applicant's costs of or incidental to the proceedings as agreed or as assessed; and 6. Broadcast or publication of the name or other identifying information of a patient referred to in these reasons without leave of the Tribunal is prohibited. ******** 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: 19 March 2018