Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Slowiaczek [2019] NSWCATOD 99 Hearing dates: 3 April 2019 Date of orders: 25 June 2019 Decision date: 25 June 2019 Jurisdiction: Occupational Division Before: Hon G Mullane ADCJ, Principal Member Dr E O'Brien, Professional Member Associate Professor I Rewell, Professional Member Associate Professor P Macneill, General Member Decision: 1. The Respondent Anthony Joseph Slowiaczek is guilty of Professional Misconduct. 2. The Respondent is disqualified from registration as a medical practitioner. 3. The Respondent may not file any application to review the disqualification until after 30 September 2023. 4. The Respondent is prohibited until 30 September 2023 from providing any health service as defined by section 4 of the Health Care Complaints Act 1993. 5. The Respondent must pay the Applicant's costs of or incidental to these proceedings as agreed or as assessed; and 6. Broadcast or publication without the leave of the Tribunal of the name or other identifying information of any patient of the Respondent referred to in the reasons is prohibited. Catchwords: PROFESSIONS AND TRADES – Medical Profession – Professional Misconduct - practitioner surrenders registration before disciplinary proceedings - Application of s139G of the National Law Legislation Cited: Health Practitioner Regulation National Law (NSW) ("the National Law") Health Care Complaints Act 1993 Health Practitioner Regulation (NSW) Regulation 2010 Public Health Act 2010 (NSW). Cases Cited: Health Care Complaints Commission v MacGregor [2016] NSWCATOD 85 Health Care Complaints Commission v Philipiah [2013] NSWCA 342 R v Byrne (1995) 193 CLR 501 Texts Cited: Good Medical Practice: A Code of Conduct for Doctors in Australia RACGP standards for general practices (4th edition); "Guidelines for Mandatory Notifications", Medical Board of Australia Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Anthony Joseph Slowiaczek (Respondent) Representation: Counsel: R Mathur (Applicant) Solicitors: A Saxton, Meridian Lawyers (Applicant) M Darmody (Respondent) File Number(s): 2018/00388841 Publication restriction: Broadcast or publication without the leave of the Tribunal of the name or other identifying information of any patient of the Respondent referred to in the reasons is prohibited. REASONS FOR DECISION 1. These were disciplinary proceedings against the Respondent. The proceedings were commenced by the Application filed on 18 December 2018. The Respondent was practising as a registered psychiatrist. The Medical Council had prior correspondence with the Respondent regarding allegations against him. A hearing was conducted under s150C of the National Law in respect of those allegations. The decision of the delegates was to vary existing practice conditions imposed on the Respondent's registration and impose further conditions. After the changes, his practice conditions comprised: Practice Conditions 1. To notify the Medical Council of NSW in writing at least seven days prior to changing the nature or place of his practice. 2. By 17 April 2018 he is to provide the Medical Council of NSW with a list of all current patients. The list is to include: a. The full name and date of birth of the patient b. The purpose/reason for why the patient attends his practice c. The date of the patient's next appointment with him (if applicable). 3. Not to treat any new patients except to provide a second opinion, report or assessment. Any patient he consults for this purpose cannot be seen on more than 3 occasions. a. Any patient not on the list referred to in condition 2 is to be considered as a new patient, which the practitioner may only consult to provide a second opinion, report or assessment. 4. To transfer the care of all patients other than those patients referred to in condition 3 by 30 September 2018. a. By 30 June 2018 he is to transfer half of his current patients to other practitioners. b. To provide a monthly report, in a format approved by the Council, listing the patients he has transferred the care of in the preceding month. c. The report is to be reviewed and signed by his Council approved supervisor and provided to the Council within 7 days of the end of each calendar month. 5. To practise under category C supervision in accordance with the medical Council of NSW's Compliance Policy – Supervision (as varied from time to time) and as subsequently determined by the appropriate review body. a. To meet with the approved supervisor on a fortnightly basis. b. At each supervision meeting the practitioner is to review and discuss his practice with his approved supervisor with a particular focus on: i. Professional boundaries ii. Clinical performance iii. His plan for the transfer of all patients (excluding any patient referred to in condition 3) to the care of the other practitioners. iv. A review of the prescription of stimulant medication to all patients aged over 14 years, including a review of the monthly stimulant sheet provided to the NSW Pharmaceutical Regulatory Unit. v. A copy of each monthly stimulant sheet is to be signed by the supervisor and included in the supervision reports. c. To authorise the approved supervisor to report, in a Council approved format, tot the Council within 7 days of the end of each calendar month. d. To authorise the Council to provide proposed and approved supervisors with a copy of the decision that imposed this condition. Health Conditions: 6. Not to prescribe for self-medication. 7. To attend for treatment by a general practitioner of his choice. The frequency of treatment is to be determined by the treating practitioner. The practitioner: a. is to authorise the treating practitioner to inform the medical Council of NSW of any of the following: i. Failure to attend for treatment; ii. Termination of treatment; or iii. A significant change in health status (including a significant temporary change). b. must provide the council with the professional details of the treating practitioner. 8. To attend for treatment by a psychiatrist of his choice. The frequency of treatment is to be determined by the treating practitioner. The practitioner: a. is to authorise the treating practitioner to inform the medical Council of NSW of any of the following: i. failure to attend for treatment; ii. termination of treatment; or iii. a significant change in health status (including a significant temporary change). b. must provide the Council with the professional details of the treatment practitioner. 9. To take any medication as prescribed by his treating practitioners. 10. The extent of his medical duties is to be guided by his health status and the advice of his treating and Council-appointed practitioners. 11. Not to self-administer any: a. prescribed restricted substance (Schedule 4 Appendix D drug) or drug of addiction (Schedule 8 drug); or b. narcotic derivative, non-prescription compound analgesic or cold medication; unless such medications are prescribed by his treating practitioner and taken as directed by his treating practitioner. Within seven days of being prescribed such treatment from his treating practitioner, the practitioner must: i. notify the Medical Council of NSW and Council appointed practitioners. ii. provide written confirmation of the treatment from the treating practitioner to the Council. 12. To comply with the Medical Council's Drug Screening Policy and Participant Procedure: drug screening (as varied from time to time) and attend for: a. random urine drug screening, and b. quarterly hair drug screening. 13. To attend for review by a Council-appointed psychiatrist on a 3 monthly basis or as otherwise directed by the Medical Council of NSW. 14. To attend a Medical Council of NSW's Review Interview on a 3 monthly basis, or as otherwise directed by the Council. 15. To authorise the medical council of NSW to forward copies of the section 150 decision and any subsequent Council review interview or other reports and any other information relevant to his health and treatment to the Council-appointed practitioners, to his treating practitioners and his approved supervisor. 1. An investigation in respect of the Respondent's professional conduct and relationships with patients was continuing. 2. On 21 September 2018 the Respondent surrendered his registration as a medical practitioner by written notice to the Australian Health Practitioner Regulation Agency. His registration ceased on 30 September 2018. 3. The Application commencing these proceedings and dated 17 December 2018 alleged that the Respondent had been guilty of unsatisfactory professional conduct and also professional misconduct and that he suffers an impairment within the meaning of that expression in the National Law. 4. The Applicant in the proceedings sought an order under s139G, which provides that if a person was, but is no longer, registered in a health profession under the National Law, an application can be made and proceedings taken in relation to that person's behaviour while registered as if the person was still registered under the National Law. The Complaints 1. The complaints of the Applicant are set out in the Application and are as follows: The Health Care Complaints Commission of Level 13, 323 Castlereagh Street, Sydney NSW, having consulted with the Medical Council of New South Wales in accordance with sections 39(2) and 90B(3) of The Health Care Complaints Act 1993 and section 145A of the Health Practitioner Regulation National Law (NSW) (" the National Law") HEREBY COMPLAINS THAT Dr Anthony Slowiaczek of PO Box 2367 GREEN HILLS NSW 2323 being a medical practitioner formerly 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 knowledge, skill or judgment possessed, or care exercised by the practitioner in the practice of medicine is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience; and/or ii. engaged in improper or unethical conduct relating to the practice or purported practice of medicine. BACKGROUND TO COMPLAINT ONE At all relevant times the practitioner was a specialist psychiatrist practising at the Maitland Specialist Centre, attached to the Maitland Private Hospital in Maitland ("Centre"). Patient A was referred to the practitioner for psychiatric treatment therapy in mid-2011. At that time Patient A had a history of childhood sexual abuse and sexual exploitation and had been previously diagnosed as suffering from Attention Deficit Hyperactivity Disorder, complex Post-traumatic Stress Disorder and depression. On 3 June 2011 the practitioner commenced a therapeutic relationship with Patient A, meeting approximately 1-2 times per week at the Centre. On 3 September 2012 the therapeutic relationship ceased. PARTICULARS OF COMPLAINT ONE 1. Between November 2011 and September 2012 the practitioner failed to maintain proper professional boundaries when communicating with Patient A by email in that he included content and used language of a personal and intimate nature and made significant personal disclosures concerning his relationship with his wife, his hobbies and his weekend plans on the following dates: (a) 16 May 2012; (b) 26 May 2012; (c) 31 May 2012; (d) 2 July 2012; (e) 10 July 2012; (f) 22 July 2012; (g) 3 August 2012; (h) 1 September 2012. 2. The practitioner failed to make a notification pursuant to section 141 of the National Law as soon as practicable after 24 February 2012 when Patient A disclosed to the practitioner that she had been in a sexual relationship with her previous GP. 3. On 21 March 2012 the practitioner failed to maintain proper professional boundaries when he responded by email to an email from Patient A seeking assistance to find a medical centre for her daughter in which he inappropriately stated "I have so wanted to be [Patient A's daughter's] saviour (I am also a child psych) but honestly, the best way I can help that lovely girl is to help you …" 4. On 11 May 2012 the practitioner failed to maintain proper professional boundaries when he responded by email to an email from Patient A whilst she was an in-patient at Wesley hospital in which he referred to Patient A's vibrator, stating "Enjoy your rabbit". 5. On 2 June 2012 the practitioner failed to maintain proper professional boundaries when he inappropriately wrote an email to Patient A stating: "It's about me being in charge, as I have to keep this therapy workable and wholesome. And I have to decide how I can do that, which is that I have to restrain my social connection needs, and can't take advantage of the love and care some of my patients offer, even though I truly enjoy your friendship and what you bring to my life …" 6. On 2 July 2012 the practitioner failed to maintain proper professional boundaries and failed to respond in a professional and therapeutic manner to an email sent to him by Patient A on 22 June 2012 in which she disclosed that she wanted to kiss the practitioner in that in a series of emails to Patient A the practitioner: (a) stated "I accept your love. I am a bit afraid of it, but actually I think I can handle it … I just have to keep a clear sight on how to be a worthy therapist for you, to help you ease the chaos … do not ever give up on me. I will be so pissed off …" (b) disclosed to Patient A his personal experience when in therapy; (c) offered to meet Patient A outside the consultation room. 7. On 3 August 2012 the practitioner failed to maintain proper professional boundaries after Patient A had suffered a dissociative episode in the lobby of the practitioner's rooms when he sent an email to her in which he inappropriately shared his personal responses to Patient A's episode and stated: "…The blood really upset me. I know it was just a lousy scratch. I've stitched up a thousand cuts that go down to the bone. But it was you, a person I deeply care about, cutting yourself, in my home. With all the care I've given you, you did that. So yes, I was well and truly triggered. I am so sorry about that. I am what I am, and you have seen the worst of me, being scared and angry because someone I care about a great deal hurts herself on my doorstep … I'm not over you, but I wish my professional training had equipped me to deal with your dissociation better …" 8. On 8 August 2012 the practitioner failed to maintain proper professional boundaries in that he inappropriately wrote an email to Patient A in which he stated: "You've been sending me so many lovely messages of care. Here's one back to you [Patient A]. You are NOT your illness. Do not fall for that. You are an amazing person. I gave myself a little 3 blessings exercise today, three things that I'm grateful for, and one of those was you. You hang in there girl. Please, for me, you and so many precious folk who love you." 9. On 9 August 2012 the practitioner failed to take appropriate steps to ensure that Patient A was safe or had received appropriate medical attention in circumstances where he had received an email from Patient A in which she advised him that she had taken 10 x 1mg Xanax and 100mg Seroquel and following a series of recent emails Patient A had sent to the practitioner indicating that she was suicidal and at risk of self-harm. 10. On 1 September 2012 the practitioner failed to maintain proper professional boundaries and failed to respond in a professional and therapeutic manner after Patient A sent him an email on 31 August 2012 stating "If you had a patient who was kissing one very sweet married man while being totally in love with another even more beautiful married man would you say she had a problem?" with a photograph of a letter carved into the skin of her thigh in that the practitioner sent an email in response stating: "I'd say she burns with a consuming fire that I would gladly walk into if I didn't care as much as I do right now. I hope she can cool a little coz I freak out a little to see pain where pleasure lives. But I totally get that some of us have different journeys to get to this place. The main problem is that she is my patient right now. OMG [Patient A] you take my breath away! OMG [Patient A] we need to talk! OMG [Patient A] where, when? Love and Peace T" 11. On 1 September 2012 the practitioner failed to maintain proper professional boundaries and failed to respond in a professional and therapeutic manner in relation to the issue of ceasing the professional relationship with Patient A in sending her an email in which he stated: " ..I've lost my warm neutrality. I'm hot for you. My want is broken and something else wants to take its place. There/s [sic] magic in that / [sic] but not healing power, and you deserve not to pay $260 an hour for love you should get for free … I have a date with destiny with you [Patient A], that I want to keep, but it will be a long way off … When you see me on Monday, we'll do 6 months of meds, talk about treatment, who/where to go, stuff like that. And I will have a small gift for you. And you won't be payin [sic]." 12. On 3 September 2012 the practitioner failed to maintain proper professional boundaries when he wrote an email to Patient A in which he inappropriately discussed: (a) his financial situation; (b) keeping his relationship with Patient A away from the medical Board; (c) his sex life with his wife; (d) his sexual appetite; (e) Patient A's emotional and psychological vulnerability. 13. On 3 September 2012 the practitioner failed to provide appropriate care and treatment for Patient A in that he prescribed for Patient A a drug of addiction within the meaning of the Poisons and Therapeutic Goods Act 1966 namely Alprazolam 100 x 1mg tablets with 5 repeats, in circumstances where: (a) Patient A had past difficulties with self-harm and a recent overdose; (b) the practitioner was initiating an intimate relationship with Patient A and had not handed over her care to another therapist. 14. Between March and September 2012 the practitioner failed to exercise appropriate judgment and/or provide appropriate care for Patient A in that he did not refer Patient A to an alternative therapist in circumstances where he was experiencing counter transference and strong personal feelings towards Patient A. 15. Between March and September 2012 the practitioner failed to exercise appropriate judgment in that he did not seek professional guidance from a peer or trusted professional colleague in circumstances where he was experiencing counter transference and strong personal feelings towards Patient A. 16. Between September 2012 and September 2016 the practitioner entered into and maintained an improper personal and sexual relationship with Patient A. 17. Between September 2012 and 15 March 2013 the practitioner failed to exercise appropriate judgment and/or provide appropriate care for Patient A in that he did not refer Patient A to an alternative therapist in circumstances despite being aware of her complex psychiatric problems and in circumstances where he had abruptly ceased treating Patient A in order to pursue a personal and sexual relationship with her. 18. On 15 March 2013 the practitioner failed to exercise appropriate judgment and/or provide appropriate care for Patient A in that he did not refer Patient A to an alternative therapist in circumstances where he did not inform Patient A's new therapist that he: (a) had stopped treating Patient A in September 2012; (b) was involved in an ongoing personal and sexual relationship with Patient A. COMPLAINT TWO is guilty of unsatisfactory professional conduct under section 139B(1)(b) of the National Law in that the practitioner has contravened the Health Practitioner Regulation (New South Wales) Regulation 2010 Part 4 clause 7 and Schedule 2 ("Regulation") PARTICULARS OF COMPLAINT TWO 1. The practitioner passed on to Patient A his original records and failed to retain or maintain a copy of Patient A's treatment records for himself. 2. The practitioner contravened the Regulation in that his medical records with respect to Patient A did not adequately record: (a) on 10 August 2012 details of Xanax consumed by Patient A including the amount consumed, the circumstances of the 'pill box confusion', the outcome of further attention sought and the status of Patient A at the time the file note was made; (b) sufficient notes of each consultation between June 2011 and September 2012; (c) clear review of his treatment plan for Patient A. COMPLAINT THREE is guilty of unsatisfactory professional conduct under section139B(1)(a) and (l) of the National Law in that the practitioner has: i. engaged in conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of medicine is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience; and/or ii. engaged in improper or unethical conduct relating to the practice or purported practice of medicine. PARTICULARS OF COMPLAINT THREE 1. On 18 July 2013 the practitioner inappropriately prescribed Dexamphetamine 5mg for Patient B: (a) in circumstances where Patient B was a close friend; (b) contrary to the NSW Medical Council policy Medical Practitioners treating relatives and Self. 2. On 28 May 2012 the practitioner inappropriately prescribed natural progesterone cream 4% for Patient C: (a) in the name of Patient C for his own persona use (b) in circumstances where the medication was to treat a condition outside his area of expertise; (c) contrary to the NSW Medical Council policy Medical Practitioners treating relatives and Self. COMPLAINT FOUR is guilty of professional misconduct under section 139E of the National Law in that the practitioner has: i. engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; or ii engaged in more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to contact of a sufficient serious nature to justify the suspension or cancellation of the practitioner's registration PARTICULARS OF COMPLAINT FOUR 1. Particular 16 of Complaint One is repeated and relied upon individually; or 2. Complaints One, Two and Three, and the particulars thereof are repeated and relied upon both individually and cumulatively. COMPLAINT FIVE Has an impairment within the meaning of section 5 of the National Law, being a physical or mental impairment, disability, condition or disorder (including substance abuse or dependence) that detrimentally affects or is likely to detrimentally affect the practitioner's capacity to practise the professional of medicine. BACKGROUND TO COMPLAINT FIVE That the practitioner was assessed by a Council Appointed Psychiatrist on the following dates at the direction of the Medical Council of NSW under section 152B of the National Law: 19 April 2017; 5 July 2017; 4 October 2017; and 11 January 2018 PARTICULARS OF COMPLAINT FIVE 1. The practitioner suffers from: (a) a personality dysfunction with mixed features; (b) depression. The Evidence 1. The evidence comprised the following: 1. Application and Complaint filed with NCAT dated 17 December 2018; 2. Reply to complaint dated 21 January 2019; 3. Statement of the Respondent dated 1 March 2019; 4. Certificate of Registration Status form AHPRA (to be provided at the hearing); 5. Certificate of Registration Status from Medical Council of NSW (to be provided at the hearing); 6. Mandatory Notification from Dr Matthew Pols, psychiatrist dated 11 November 2016; 7. Further email from Dr Pols attaching 11 December 2016; 8. Email correspondence between [Patient A] and Dr Anthony "Tony" Slowiaczek dated 31 August 2012 to 3 September 2012; 9. Colour photo of "T" carved into [Patient A's] thigh dated 31 August 2012; 10. Email from Dr Slowiaczek to [Patient A] excerpts from his diary dated 10 July 2013; 11. Diary entries dated 9 October 2012 to 10 July 2013; 12. Email from Dr Slowiaczek dated 9 September 2013; 13. Email correspondence between [Patient A] and Dr Slowiaczek dated 9 October 2016 (chronologically reversed) to 23 March 2016; 14. The Long Farewell – email from [Patient A] to Dr Slowiaczek dated 21 March 2015; 15. Email correspondence between [Patient A] and Dr Slowiaczek dated 14 March 2016 (chronologically reversed to 23 February 2016); 16. Photographs of Dr Slowiaczek and [Patient A] dated 09/12; 23/10/2012, 13/07/2013, 8/04/2014, Christmas 2015; 17. Photograph of Dr Slowiaczek playing cello undated; 18. Statement from Dr Matthew Pols dated 30 June 2017; 19. Statement from Pravin Dullur – mandatory notifier dated 4 July 2017; 20. Commission request to Dr Murray Wright dated 19 March 2018; 21. Expert Report from Dr Wright dated 17 April 2018; 22. Curriculum vitae of Dr Wright; 23. Commission request for expert response to additional question dated 26 April 2018; 24. Supplementary report from Dr Wright dated 1 May 2018; 25. Commission's s28 correspondence to Dr Slowiaczek dated 16 January 2017; 26. Email request for s34A from Dr Slowiaczek's lawyers dated 20 January 2017; 27. Commission s34A correspondence to Dr Slowiaczek dated 20 January 2017; 28. Response from Dr Slowiaczek's lawyers dated 3 February 2017 attaching: A. Dr Slowiaczek's Statement of Information B. Medical record for [Patient A] (at Tab 55); 1. Correspondence from Dr Slowiaczek's lawyers re: contact from [Patient A] dated 28 February 2017; 2. Correspondence from Dr Slowiaczek's lawyers advising of possible vandalism by [Patient A] dated 1 June 2017; 3. Email exchange with Dr Slowiaczek's lawyers advising of the file numbers Commission has in relation to Dr Slowiaczek dated 8 September 2017; 4. Commission correspondence to Dr Slowiaczek with summary of matters and request for information dated 6 October 2017; 5. Correspondence from Dr Slowiaczek's lawyers advising of change of work location dated 10 October 2017; 6. Email from Dr Slowiaczek's lawyers dated 16 October 2017 requesting s34A notice; 7. Commission s34A correspondence requesting information regarding cannabis use and treatment sought dated 16 October 2017; 8. Response from Dr Slowiaczek's lawyers dated 10 November 2017 attaching: Dr Slowiaczek's Statement of Information; Prescriptions written by Dr Slowiaczek for family and friends; 1. Commission s40 correspondence to Dr Slowiaczek dated 11 May 2018; 2. Response from Dr Slowiaczek's lawyers dated 22 May 2018; 3. Curriculum vitae of Dr Slowiaczek; 4. Mandatory self-notification from Dr Slowiaczek dated 21 December 2016; 5. Council correspondence referring Dr Slowiaczek dated 16 February 2017; 6. Written Reasons for Decision dated 15 March 2017; 7. Transcript of Proceedings dated 3 February 2017; 8. CAP Report of Dr Samuels dated 19 April 2017; 9. CAP Report of Dr Samuels dated 5 July 2017; 10. CAP report of Dr Samuels dated 4 October 2017; 11. AHPRA Notification by Dr Dullur dated 17 March 2017; 12. Council correspondence to Commission advising of Council's intention to hold section 150C proceedings dated 19 March 2018; 13. CAP Report of Dr Samuels dated 11 January 2018; 14. Council correspondence to Commission advising of Council's decision to vary conditions dated 10 April 2018; 15. Council correspondence to Commission attaching Written Reasons for Decision dated 19 April 2018; 16. Written Reasons for Decision dated 18 April 2018; 17. Council correspondence advising of outcome of S150C and transition to new Drug and Alcohol Policy and attaching Written Reasons for Decision dated 4 June 2018; 18. Written Reasons for Decision dated 15 May 2018; 19. Medical records from Dr Choat dated 12 May 2017 1. Commission section 34A correspondence to Dr Choat dated 24 April 2017; 1. Transcription of medical notes from Dr Short dated 24 May 2017 1. Commission s34A correspondence to Dr Julian Short dated 24 April 2017; 1. Report from Dr Singer dated 30 May 2017 1. Commission s34A correspondence to Dr Singer dated 24 April 2017; 1. Report from Dr Diamond dated 6 June 2017 1. Commission s34A correspondence to Dr Diamond dated 24 April 2017; 1. Records provided by Dr Slowiaczek; 2. GP records; 3. Commission-extracted emails highlighted in request to expert 1. 21 February 2012; 2. 24 February 2012: 3. 20 & 21 March 2012; 4. 1 April 2012; 5. 16 April, 31 May, 2 June, 5 June, 18 June & 1 September 2012; 6. 18 April 2012; 7. 11 May 2012; 8. 16 May, 26 May, 31 May, 2 July, 10 July, 22 July, 3 August & 3 September 2012; 9. 22 & 24 July 2012; 10. 3 August 2012; 11. 8 & 9 August 2012; 12. 1 September 2012; 13. 3 September 2012. 1. Good Medical Practice: A Code of Conduct for Doctors in Australia; 2. Guidelines for mandatory notifications; 3. Schedule 4 Records kept by medical practitioners and medical corporations in relation to patients Health Practitioner Regulation (NSW); 4. RACGP standards for general practices (4th edition) Patient health records; 5. Guideline for self-treatment and treating family members dated 2 December 2014 6. Discharge summaries of Patient A for admission to private hospital on 12 occasions in the period 23 March 2015 – 22 February 2019; 7. "Exhibit A1" document titled "Email from Tony Describing His Six Selves"; (17/09/2012); 8. Oral evidence of the Respondent on 3 April 2019; 9. Report of Dr M Diamond dated 19 June 2017 with instruction letter dated 1 June 2017; 10. Report of Dr M Diamond dated 21 March 2018 with instruction letter dated 19 March 2018; 11. Report of Dr Diamond of 22 February 2019 with letter of instruction dated 24 February 2019; 12. Curriculum vitae of Dr Diamond; 13. Testimonial from Dr Graeme Choat of 30 January 2019 with letter of instruction of 24 January 2019; 14. Letter from Dr Michael Fairley of 19 February 2019 with letter of instruction of 24 January 2019; 15. Letter from William Vorobioff, psychologist, of 30 January 2019 with letter of instruction of 24 January 2019; 16. Letter from Dr G A Rickarby dated 8 February 2019 with letter of instruction dated 29 January 2019; and 17. Letter from Tim Martin dated 27 February 2019 with letter of instruction dated 24 January 2019. Admissions by the Respondent 1. With the benefit of legal advice and representation, the Respondent admitted all of the complaints and all of the particulars of the complaints. Factual Conclusions 1. The Panel had read the extensive documentary evidence. There was also the oral evidence of the Respondent including about ½ an hour of oral evidence in chief and more than 2½ hours of cross-examination and answering questions from members of the panel. Counsel for the Applicant provided considerable assistance to the Panel by referring it to the aspects of the evidence that proved each of the particulars in the complaints. 2. The Tribunal is satisfied that the particulars of the complaints and the complaints themselves are well proved by that evidence without relying on the admissions of the Respondent. Relevant Legislative Provisions Unsatisfactory Professional Conduct / Professional Misconduct. 1. "Unsatisfactory professional conduct" of a registered health practitioner is defined in sub-section 139B(1) of the National Law 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" (para 139B(1)(a)); (b) A contravention by the practitioner (whether by act or omission) of a provision of this law, or the regulation under this law or under the NSW regulations, whether or not the practitioner has been prosecuted for or convicted of an offence on respect of the contravention; 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. Under Section 139E, for the purposes of the National Law "professional misconduct" of a registered health practitioner includes: 1. Unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; or 2. 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. Disciplinary proceedings against practitioner whose registration has ceased since the conduct complained of 1. Section 139G of the National Law provides that the provisions of the National Law in relation to discipline for unsatisfactory professional conduct and professional misconduct, apply where a person was, but is no longer, registered in a health profession under the National Law, "A notification may be made, and proceedings may be taken, under this Part (i.e. Part 8H Health, Performance and Conduct) in relation to the person's behaviour whilst registered as if the person were still registered under this Law by the National Board established for the health profession". Expert Evidence – Dr M Wright – Psychiatrist 1. In March 2018 the Applicant engaged Dr M Wright, a consultant psychiatrist with a private practice and also a practice providing assessments and treatment of medical practitioners, including advice to the Medical Council of New South Wales as a Council appointed psychiatrist. 2. Dr Wright has been practising as a psychiatrist for almost 30 years. Prior to 1990 he undertook general training in medicine which included being a Psychiatric Registrar at the Prince of Wales/Prince Henry Hospital from January 1983 – January 1985, at Prince of Wales/Prince Henry Hospital from July 1986 – January 1989, and as Senior Psychiatry Registrar at Northside Clinic from January – August of 1989. He has since then practised as a psychiatrist in private practice, public hospitals, and private clinics. He has also lectured in psychiatry and mental health to mental health staff and as a Conjoint Senior Lecturer in the medical faculties of the University of Sydney and the University of NSW. 3. Whilst practising as a consultant psychiatrist, since 2003 he has held numerous administrative positions in Area Health services in mental health, and associated areas such as Drugs and Alcohol. In the period 2007 – 2013 he was Clinical Chair, Psychiatry State Training Council. Since January 2012 he has been the Director of Mental Health of South East Sydney Local Health District and since October 2014 he has been the Chief Psychiatrist, NSW Ministry of Health. 4. He has also acted as a panellist of the Medical Council in impairment hearings. He also has a considerable background in teaching and training psychiatrists and administering psychiatric services. He has been author or co-author of numerous articles in professional journals. He has also lectured and presented extensively to conferences and seminars for the profession. 5. Dr Wright was briefed with a considerable volume of material regarding the complaints and factual aspects. The Applicant asked Dr Wright to address a lengthy series of issues. 6. Dr Wright noted in his first report that he had read the procedural direction of the Tribunal setting out the Code of Conduct for expert witnesses and he agreed to abide by the Code of Conduct. Complaint 1 1. Dr Wright reported: "Having reviewed all the email correspondence produced in the records provided to me, it would appear that the emails from [the Respondent] to [Patient A] strayed outside appropriate professional boundaries at times, both in terms of their timing and content. In my opinion it is not so much whether or not emails between therapists and patients occur but whether that email contact is consistent with the nature of the therapy and consistent in its maintenance of professional boundaries. In my opinion the emails from [the Respondent] to [Patient A] over time increasingly indicated a failure to maintain appropriate professional boundaries and I form this view mainly as a result of the significant personal disclosures made by [the Respondent] in these emails, which include intimate details of his married life, details of his sporting activities and a style of communication which appears friendly and increasingly intimate rather than professional." 1. Dr Wright formed the opinion that the Respondent's email activity with Patient A failed to maintain appropriate professional boundaries and the conduct fell below the standard reasonably expected of a practitioner of an equivalent level of training or experience applicable at the time of the conduct. His opinion was that the departure from the standard was significantly below the standard and invited his strong criticism. 2. It was therefore unsatisfactory professional conduct under s139B(1)of the National Law. 3. With regard to his response to emails from Patient A after 7:00 pm on 21 February 2012, 20 March 2012 and 11 May 2012, he found that the three examples all fell outside regular office hours and did not appear to relate to a situation requiring urgent advice. He said that such conduct "represents a loosening of the integrity of professional therapeutic boundaries, which should be a cause for concern about increased risk of actual boundary transgressions" but his opinion was that "the regular response to 'out of hours' emails represents conduct falling below the standard expected of a practitioner of an equivalent level of training or experience, applicable at the time of the conduct". But he opined that it did not fall significantly below the standard. 4. With regard to conduct of the Respondent emailing Patient A on weekends, such as Sunday 1 April 2012 at 10:22 pm, Saturday 26 May 2012 at 5:50 pm and Saturday 2 June 2012 at 4:38 pm, he was not critical of the email exchange on Sunday 1 April 2012 because he found that Patient A was in need of urgent advice. 5. But the email exchange on Saturday 26 May 2012 at 5:50 pm did not fall in that category. He said that report of a family event for the patient was almost certainly clinically relevant, but then the conversation "strayed into unnecessary personal information sharing between patient and psychiatrist. In my opinion the personal information sharing represents a professional boundary transgression both in terms of its content and the fact that it occurs out of regular office hours". 6. Likewise, Dr Wright found that the email exchange on 2 June 2012 at 4:38 pm represented a request for urgent medical advice or support. He said that it appeared to represent an ongoing conversation about clinical boundaries, which conversation would be an appropriate subject in therapy but did not require detailed email exchanges such as occurred. 7. He said that he was not critical of the doctor utilising email to provide urgent advice to Patient A on Sunday 1 April 2012 but his opinion was that "Both the timing and content of the emails on Saturday 26 May 2012 and Saturday 2 June 2012 fall below the standard expected of a practitioner of an equivalent level of training or experience applicable at the time of the conduct". He said that the non-urgent nature of the email exchanges on Saturday 26 May and Saturday 2 June 2012 and the level of personal disclosures in the email of Saturday 2 June 2012 fell significantly below the standard expected of a practitioner of an equivalent level of training or experience applicable at the time of the conduct. He said, however, that the conduct did not invite his strong criticism. 8. It was though, unsatisfactory professional conduct under s139B(1) of the National Law. 9. He was asked to comment on the appropriateness of the email exchanges between the Respondent and Patient A in the course of the therapeutic relationship from 3 June 2011 – 3 September 2012. Dr Wright referred to the content of emails between the Respondent and Patient A in April 2012 and June 2012 where reference is made to the professional boundaries issue. He said he thought that these email exchanges represented a "carrying over" of conversations from within the formal therapy times, and represent a loosening of the professional boundaries between the therapist and the patient". With regard to the email of 2 July 2012 from the Respondent mentioning his own therapy and offering to meet Patient A outside the consultation room, he was of the opinion that: "This level of self-disclosure and an offer to meet in person outside of formal consultation represent breaches of the therapeutic and professional boundaries, and the breach is continued in an email on 10 July 2012 where [the Respondent] ended an email to [Patient A] 'I will be thinking of you'". 1. He refers also to the Respondent making further personal disclosures in an email of 22 July 2012 in describing his weekend activities and indicating that he has started playing the cello again. He referred also to where the Respondent made further personal disclosures in the emails of 22 July 2012, 3 August 2012, 8 August 2012 and 9 August 2012. 2. He refers to the email exchanges on 3, 8 and 9 August 2012 which, he says: "appear to occur at a time when [Patient A] was very unwell, suffering a dissociative episode in the lobby of [the Respondent's] room and culminating in an accidental overdose of Xanax tablets". 1. He says that the Respondent's advice on 9 August that [Patient A] seek medical help was appropriate. 2. But the response from the Respondent to Patient A at 8:15 am on 3 August 2012 is a significant disclosure of personal material from the Respondent regarding his reaction to Patient A's distressed state. He concludes: "In my opinion this level of disclosure in an email represents a loss of appropriate professional boundaries". 1. He refers then to the email from the Respondent on 1 September 2002 which states: "The truth is, I don't think I should be your therapist any more. It's too risky – for me and you – I could go on and on about the professional reasons why it is always a bad thing for a therapist to respond to the overtures of love bestowed upon them by besotted patients – that the therapist have a power advantage, patients are by definition open and vulnerable looking for repairative (sic) love, the patient need to be free of being stuck with unhappy middle aged men's wives and meet a girl properly etc etc … that's why I don't think I can be your therapist. I have lost my warm neutrality. I am not for you … when you see me on Monday, we'll do six months of med, talk about treatment, who/where to go stuff like that and I will have a small gift for you and you won't be payin (sic)". 1. On 3 September 2012 the Respondent stated: "And I know that this is so dangerous for me, and you. The moral judgment of the Medical Board will be severe and swift if they find out. And they can find out very quickly…. I am amazing in my stamina to work (and do other things) but when I work I can get stressed and [his wife] drives me fucking crazy with her rituals and being shitty at me for clanging a pan … I love [wife]. How could I not after being with her for 25 years? … Oh, there is one more thing. She has fear in her eyes when I ask her to make love. She got dry once and it hurt her … and two years ago she gave sex up … you. Jesus Christ my Lord how can I have to hear about my complicated life … you are also a wise a beautiful woman with a heart as deep as mine and I would love to share my life with you and I will wait for you until the time is right to do that …" 1. Dr Wright's opinion is that these emails reflect a complete breakdown of the professional relationship. Dr Wright said that in his opinion the emails between the Respondent and Patient A up to and including 3 September 2012 became increasingly inappropriate, reflecting significant boundary transgressions in the form of significant personal disclosures of an intimate nature and culminating in declarations of love and a desire to pursue an intimate relationship and abandon any therapeutic relationship. His opinion was that that conduct 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 invited his strong criticism. 2. It was therefore unsatisfactory professional conduct under s139B(1) of the National Law. 3. His opinion of the Respondent's conduct of failing to make prompt mandatory notification when Patient A disclosed on 24 February 2012 that she had been in a sexual relationship with her doctor, who she later revealed was her GP. The "Guidelines for Mandatory Notifications" by the Medical Board of Australia includes suspected sexual misconduct in connection with the practice of the Respondent's profession as a trigger for mandatory notification. 4. Dr Wright was of the opinion that the delay of almost four years by the Respondent in making the notification was significantly below the standard expected of a practitioner of an equivalent level of training or experience applicable at the time of the conduct and invited his strong criticism. His failure to promptly notify was a breach of S141 of the National Law and therefore unsatisfactory professional conduct under s139B(1)(b) of the National Law. 5. Dr Wright was asked to comment on the conduct of the Respondent when on 20 March 2012: * He responded to an email at 9:00 pm with regard to finding a Medical Centre for Patient A's daughter; and * On 21 March in an email thread he stated "I have so wanted to be [Patient A's daughter's] saviour. (I am also a child psych) but honestly, the best way I can help that lovely girl is to help you …" 1. Dr Wright's opinion was that there was some genuine clinical content but the email of 21 March 2012 at 5:45 pm included material that appeared to breach professional boundaries. He found that the conduct of the Respondent on 21 and 22 March 2012 as described, was below the standard reasonably expected of a practitioner of an equivalent level of training or experience, but not significantly so. 2. Another area on which Dr Wright was asked to comment was the Respondent's care and treatment of Patient A on Sunday 1 April 2012 in response to her email that she had been "beaten up". He advised her "Go to the hospital now !!!". Dr Wright said that he considered the response to be appropriate for the Respondent to advise Patient A to go to the hospital. He said he had difficulty opining as to whether there are additional steps he would expect a treating psychiatrist to take and it was difficult to answer on the information available. He concluded that on the information available the conduct did not clearly fall below the standard reasonably expected of a practitioner of a similar level of training or experience. 3. In relation to the email discussion of boundaries by the Respondent in 2012 on 16 April, 31 May, 2 June, 5 June and 18 June, he was asked whether such conversation was appropriate and whether it demonstrated an adequate understanding of doctor/patient boundaries. From his reading of the emails Dr Wright was of the opinion that there was an inference that the question of doctor/patient boundaries had been discussed at length in therapy sessions, and that, on that basis, the relevant parts of the emails were appropriate in that they: "communicated in terms relevant to the therapy and in ways that can be understood by the patient. I believe that they do demonstrate an adequate understanding of doctor/patient boundaries." 1. He concluded that the Respondent's conduct in relation to the email discussion of boundaries did not fall below the relevant standard. 2. Dr Wright was also asked to comment on the content of the Respondent's email to Patient A on 18 April 2012 "Specifically in stating, 'I am so terribly sorry that this happened, and sorry that I can't stop you from hurting yourself …'" 3. Dr Wright said that expression of regret was not inappropriate but his opinion was that a more detailed exploration of the emotional response of the therapist to a crisis situation and self-harm in their patient carries a degree of risk and ought to occur in a face-to-face conversation, rather than in an email conversation. He said that the advantage of a face-to-face conversation is that the therapist can judge the impact of their words. Although a face-to-face conversation would have been better, Dr Wright did not find that the use of email to send the message was below the standard. 4. When Dr Wright was asked to comment on the content of the Respondent's email to Patient A of 11 May regarding Patient A having taken her vibrator with her when she was an in-patient, Dr Wright was of the opinion that the Respondent contributed to an ongoing breakdown in professional boundaries by commenting in the way he did. He said that it was up to the doctor as the therapist to articulate the boundaries around appropriate use of emails and to maintain those boundaries. He said that in responding to such an intimate disclosure by the patient, the doctor on this occasion continued the process of boundary deterioration and his conduct 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. He said that this departure invited his strong criticism. 5. It was thus unsatisfactory professional conduct under s139B(1) of the National Law. 6. Dr Wright was asked to comment on the appropriateness of the Respondent's emails to Patient A in 2012 on the following dates: 16 May, 26 May, 31 May, 2 July, 10 July, 22 July, 3 August and 1 September Where he disclosed personal details of his hobbies, weekend plans and his wife. Dr Wright's response was that if email communications are being used, it is the responsibility of the doctor to monitor and reiterate the limits of such communications. He said: "Personal disclosures by therapists are a delicate matter, and the broad consensus amongst my peers would be that occasional and judicious disclosure can assist in therapy whereas a complete refusal to disclose any material can impede a therapy in some circumstances. However, disclosure of any personal material needs to be done with a clear understanding of its purpose, and that must be to enhance the benefits of the therapy. It is hard to justify personal disclosures by email outside of scheduled sessions". 1. He said that in his opinion it is "completely inappropriate" for the Respondent to have disclosed the details of his sexual relationship with his wife, adding that: "Not only is this an inappropriate personal disclosure but it takes no account of the privacy concerns that [the Respondent's] wife might have had". 1. He said his opinion was that the particular email disclosures by the Respondent fell significantly below the standard reasonably expected at the time of the conduct and invited his strong criticism. 2. It was thus unsatisfactory professional conduct under s139B(1)of the National Law. 3. When asked to comment on the Respondent's response on 22 June 2012 to Patient A's initial transference and then again in his email response when she wanted to kiss him on 2 July 2012, he said that the Respondent's responses appeared to continue a process of breaching professional boundaries "and contributes to a growing ambiguity regarding the nature of the relationship that is evolving between [the Respondent] and his patient". 4. The Respondent said: "I accept your love. I am a bit afraid of it, but actually I think I can handle it … I just have to keep a clear sight on how to be a worthy therapist for you to help you ease the chaos … do not ever give up on me. I will be so pissed off …". 1. Dr Wright noted that the email exchange on 2 July "does nothing to discourage physical displays of affection or discussing the nature of the relationship by email". 2. He concluded that the fact that the Respondent continued to conduct the conversation by email as opposed to directing it back to the therapy sessions, and in light of his ambiguous references to the nature of the relationship, the exchange 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 but considered in isolation did not invite his strong criticism. 3. It was unsatisfactory professional conduct under s139B(1)of the National Law. 4. Dr Wright was asked to comment on the Respondent's handling of Patient A's dissociative episode on 3 August 2012 including the presence of blood "triggered him" and his admission that he did not know how to treat dissociation and that "no one I know in a profession really knows how to help fix it …". 5. Dr Wright reported that he did not feel able to comment on the Respondent's handling of the episode as the material provided was simply an email exchange about the incident. He said that he did not think it was appropriate for a therapist to "de-brief" with a patient after such a serious and complex matter via email and would have expected the Respondent to direct the conversation back to a therapy session if the patient emailed him about it. 6. Dr Wright said: "In general terms the role of a psychiatrist in managing someone prone to dissociation or other forms of crisis is to try and provide an element of containment and reassurance. It is particularly challenging when that crisis occurs in the office or the waiting room, and it is certainly worthy of de-briefing after the event but I do not believe that email is a suitable is a suitable vehicle for such as a de-brief. In my opinion [the Respondent] could have restricted the discussion in the exchange and still maintained a supportive and therapeutic stance, but his emails went into unnecessary detail about his own reactions. In my opinion this failure to contain the use of email to discuss such a delicate matter and the failure to monitor and contain his own communications reflects a deteriorating therapeutic environment with a failure to manage appropriate boundaries." 1. He said he was not commenting on the Respondent's actual handling of the dissociative episode, but he said the Respondent's "expansive and very personal email about his response to the episode" was inappropriate and fell significantly below the standard at the time of the conduct. He said it did not invite his strong criticism. 2. It was unsatisfactory professional conduct under s139B(1) of the National Law. 3. Dr Wright was asked to comment on the notes made by the Respondent in Patient A's medical record regarding 3 August 2012. He had told the Applicant that he had given his only copy of the record to Patient A. In reference to the document headed "Consultation Notes for [the Respondent]" dated 3 August 2012, he reported that he does not believe there was sufficient information in those notes for him to provide any meaningful comment. 4. Dr Wright's comment on the response of the Respondent on 9 August 2012 when Patient A had taken 10 x 1mg Xanax and 100mg Seroquel, taking into account her email of 8 August 2012 where she was suicidal and threatened self-harm. He was also asked to comment on whether an email response was adequate in the circumstances and whether there were additional steps he would have expected a treating psychiatrist to take. In his answer he said that a follow-up telephone call to Patient A would have been prudent. He said that the Respondent's response was not appropriate, but the most prudent action would have been a follow-up phone call to ensure that Patient A had called an ambulance, or indeed, if he knew her whereabouts, to call an ambulance on her behalf. 5. Dr Wright said: "In my opinion [the Respondent's] advice is adequate but his failure to follow-up and ensure that Patient A sought appropriate medical attention falls below the standard reasonably expected of a practitioner of an equivalent level of training or experience applicable at the time of conduct, but I cannot say that the departure was significantly below the standard." 1. Dr Wright was asked to comment on the notes the Respondent made in Patient A's medical record regarding 9 August 2012. Dr Wright's opinion was that it was unclear whether this was the complete treatment notes, because the Respondent had stated in a response to the HCCC that he no longer held a file for Patient A. But Dr Wright considered that if this document were the complete file note for the patient, he would consider the documentation to be inadequate, given the potential seriousness of the event. He said "In my opinion an adequate documentation would include the amount of medication consumed, the circumstances of the 'pill box confusion', and the outcome of any further attention that was sought and indeed the status of the patient at the time that the file note was made." 2. He said that if the file note represented the complete documentation by the Respondent on that occasion his opinion was that such record fell significantly below the standard but did not attract his strong criticism. There was no evidence of any other documentation. 3. It was unsatisfactory professional conduct under s139B(1) of the National Law. 4. Dr Wright was asked to comment on the Respondent's emails on 1 September 2012 when the Respondent: * Responded to the image of a "T" carved on Patient A's thigh; and * Responded to Patient A's question about whether she should find another therapist. 1. Dr Wright responded: "My overall comment in relation to the emails on 1 September 2012 is that all semblance of a purely therapeutic interaction between [the Respondent] and [Patient A] appears to have gone. Patient A asked the question "do you want me to find another therapist?… and [the Respondent] responds in the last paragraph of a long email that 'when you see me on Monday, we will do six months, talk about treatment, who/where to go, stuff like that. And I will have a small gift for you and you won't be payin.(sic). You're family now.'" 1. Dr Wright said that the Respondent was indicating that he could no longer be the therapist and appeared encouraging of a development of an intimate relationship between himself and Patient A. He said that it was appropriate for the Respondent to indicate that he could no longer be Patient A's therapist, "but it appears to me that the clinical priority of managing a safe transition of treatment from [the Respondent] to another suitable therapist is overshadowed by the expression of a desire to pursue an intimate relationship." Dr Wright's opinion was that the failure to ensure continuity of care and an adequate transition to a new therapist was conduct that fell significantly below the relevant standard and invited his strong criticism. He also expressed the opinion that "the overt expressions of an interest in a romantic relationship with someone before ensuring a hand over to another therapist falls below the standard reasonably expected". His opinion was that it was significantly below the standard and invited his strong criticism. 2. It was unsatisfactory professional conduct under s139B(1) of the National Law. 3. Dr Wright was also asked to comment on the conduct of the Respondent in sending Patient A an email on 3 September 2012 when he discussed: * His financial plans; * Keeping their relationship away from the Medical Board; * His sex life with his wife; * His sexual appetite; and * Her emotional and psychological vulnerability. 1. His opinion was that the conduct of the Respondent in sending Patient A an email on 3 September 2012 when he discussed such matters was inappropriate. He said: "There is no semblance of a therapeutic need for this material". His opinion is that the conduct of the Respondent in sending that email fell significantly below the standard reasonably expected and invited his strong criticism. 2. It was unsatisfactory professional conduct under s139B(1) of the National Law. 3. When asked of Dr Wright "Please comment on the clinical rationale of [the Respondent] prescribing to [Patient A] from June 2011 up to and including the last consultation on 3 September", Dr Wright said that his response to that question had to be qualified because none of the documentation available to him provides a sufficiently detailed and longitudinal account of Patient A's condition. But he said: "I note that [the Respondent] in his response to the HCCC describes a diagnosis of Attention Deficit Hyperactivity Disorder for which [Patient A] received treatment with dexamphetamine,so that he also diagnosed depression and anxiety and it would appear also diagnosed complex post-traumatic symptoms. The referral from Dr Matthew Pols describes a diagnosis of PTSD, dissociative subtype." 1. Dr Wright was of the view that because of the undoubtedly complex nature of Patient A's underlying psychiatric diagnosis and the lack of comprehensive assessment document or detailed contemporaneous treatment notes, he was reluctant to make specific comments on the appropriateness of the prescribing decisions between June 2011 up to September 2012. He did comment in regard to the prescription on 3 September 2012 of Alprazolam 1mg tablets in a script of 100 tablets with five repeats. "My concern about this prescription relates to the risk in overdose attached to these medications and Patient A's past difficulties of self-harm and relatively recently 'accidental' overdose. I note that [the Respondent] had previously only prescribed minimal Xanax in scripts of 50 with no repeats and I expect that this was in order to minimise the risk of overdosage. Provision of a script for potentially very large amounts of Alprazolam at a time when [the Respondent] was initiating another therapist is a risky practice. In my opinion this falls below the standard reasonably expected of a practitioner of an equivalent level of training or experience applicable at the time of the conduct and in my opinion that departure from the standard was significantly below that. This attracts my strong criticism." 1. It was unsatisfactory professional conduct under s139B(1) of the National Law. 2. The next question was: "20. Please comment on the admitted conduct of [the Respondent] in not referring [Patient A] to another practitioner or seeking guidance when he began to experience countertransference". 1. On the information provided to Dr Wright, he concluded that Patient A's condition is "complex and fragile." He said: "Her history appears to be that of a person vulnerable to exploitative sexual relationships and abuse and she disclosed to [the Respondent] that she had been in a sexual relationship with a previous treating doctor. "Such a history should generate a level of vigilance regarding transference . . ." 1. Dr Wright took the view that such a history would generate a level of vigilance regarding transference and counter transference in any practitioner and would often be the reason for a therapist seeking advice either in a peer review group or specific supervision with a trusted senior colleague. Dr Wright was of the opinion that the fact that the Respondent did not seek any such guidance when he began to experience difficulties managing his own countertransference his conduct of the Respondent fell significantly below the relevant standard and invited his strong criticism. He also said: "The fact that [the Respondent] did not raise the issue about referring Patient A to another practitioner when he started to struggle with his own countertransference towards her, but instead delayed such a referral until he appeared committed to a romantic relationship, also falls below the standard reasonably expected of a practitioner of an equivalent level of training or experience applicable at the time of the conduct and that departure from the standard was significantly below the standard and attracts my strong criticism." 1. It was unsatisfactory professional conduct under s139B(1) of the National Law. 2. On 15 March 2013 the Respondent referred Patient A to Dr Cassidy. The referral did not mention that he had stopped treating Patient A in September 2012 or that he had been involved in an intimate relationship with her. Dr Wright said that failure to notify Dr Cassidy of the intimate relationship with Patient A was consistent with the Respondent's previously stated intent in an email to Patient A that he did not wish the Medical Council to become aware of their relationship. Dr Wright added that "it amounts to withholding of information from Dr Cassidy that would be important in adequate treatment planning." 3. Dr Wright's opinion is noted that the failure to disclose the intimate relationship to Dr Cassidy was conduct of the Respondent significantly below the standard expected of a practitioner of an equivalent level of training or experience and invited strong criticism. 4. It was unsatisfactory professional conduct under s139B(1) of the National Law. 5. Dr Wright was asked to comment on the conduct of the Respondent in initiating an intimate relationship with Patient A. He said that the material available to him is sufficient to form the opinion that her condition is complex and fragile, that she has been subject to abuse and sexually exploitative relationships in the past, and disclosed to the Respondent that she had been involved in a sexual relationship with her previous doctor. He said: "She was an extremely vulnerable woman and in my opinion [the Respondent's] conduct in initiating an intimate relationship falls below the standard reasonably expected of a practitioner of an equivalent level of training or experience applicable at the time of the conduct and in my opinion that departure from the standard was significantly below that standard and invites my strong criticism." 1. It was unsatisfactory professional conduct under s139B(1) of the National Law. 2. Dr Wright was asked to comment on the admitted conduct of [the Respondent] in smoking cannabis in the presence of Patient A. Dr Wright reported that although he does not condone the regular use of cannabis by anyone, "but in the absence of evidence that [the Respondent] was using or affected by cannabis in clinical encounters with [Patient A] or anybody else, I do not wish to comment further." 3. Dr Wright was asked to comment on the Respondent's admission that he had prescribed natural progesterone cream 4% for his wife but it was for his own use. Dr Wright considers self-medication by a medical practitioner to be unwise. He noted too that the prescription was ostensibly for the Respondent's wife but he was using the cream for himself for treatment of a condition outside his area of expertise. Dr Wright noted The Code of Conduct for Doctors in Australia recommends that all doctors have their own general practitioner and do not prescribe medication for their own use or prescribe for friends or family. Dr Wright's opinion is that this conduct by the Respondent falls significantly below the relevant standard and but that it "does not invite my strong criticism." 4. Nevertheless, the Tribunal finds that this was unsatisfactory professional conduct under s139B(1) of the National Law. 5. The Respondent admitted prescribing for family and friends. Dr Wright noted that this is prohibited under The Code of Conduct. Dr Wright expressed particular concern about the Respondent prescribing Dexamphetamine for his friend, Mr D, in spite of the Respondent stating that he reviewed Mr D at his practice, took a detailed history and confirmed that he had ADHD. Dr Wright's concern was heightened by the fact that the Respondent was unable to locate the medical records for Mr D and also because Dexamphetamine is a restricted substance which is addictive and that it is most unwise to provide any form of treatment to a friend in those circumstances. Dr Wright's opinion is that the instances of prescribing for family and friends is conduct that 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 invited criticism, but not strong criticism. 6. The Tribunal finds that this was unsatisfactory professional conduct under s139B(1) of the National Law. 7. Dr Wright was asked to comment on the admitted conduct of the Respondent that he gave Patient A the only paper copy of her records. Dr Wright is critical of the fact that the Respondent did not make a copy of the records to retain. His opinion was that the failure to retain a copy fell significantly below the standard reasonably expected, but did not attract his strong criticism. 8. The Tribunal finds that this was unsatisfactory professional conduct under s139B(1) of the National Law. 9. Dr Wright was also asked to comment on the adequacy of the medical records provided by the Respondent whether they complied with the RACGP Standards and the Health Practitioner Regulation (NSW) Regulation 2010. Dr Wright said that he understood that he has not been provided with the complete records of the Respondent in relation to Patient A. He said that if that is correct then he is not able to give an opinion about the complete records. 10. On the other hand he said that if the documents he has seen represent the complete file, he would consider that the letter to the referring GP to be adequate and the subsequent notes at each consultation to be rather superficial, and lacking in any clear review of the treatment plan. He said: "If these are indeed the complete notes I would consider that their brevity and superficiality falls below the standard reasonably expected of a practitioner of an equivalent level of training or experience applicable at the time of the conduct and that this departure from the standard was significantly below that standard. This departure invites my criticism but it falls short of strong criticism." 1. There was no other clinical record put in evidence. The records of the respondent were inadequate and did not comply with the requirements of the Regulation. 2. His non-compliance was unsatisfactory professional conduct under s139B(1)(b) of the National Law. 3. After providing his report, Dr Wright was asked by the Applicant to provide an additional response arising from evidence in the s150 proceedings on 3 February 2017. In those proceedings it emerged that the Respondent had commenced a sexual relationship with Patient A within a week of terminating the therapeutic relationship. When asked by the Applicant to comment on this Dr Wright noted from the email exchanges between the patient and the Respondent that professional boundaries had been breached on numerous occasions prior to the termination of therapy and there had been an exchange of personal and intimate information for some time prior to September when the therapeutic relationship ended. He also referred to the Medical Board of Australian Guidelines for Mandatory Notifications and quoted from page 3 of those Guidelines which state that: "engaging in sexual activity with a person formerly under a practitioner's care (i.e. after the termination of the practitioner - patient relationship) may also constitute sexual misconduct. Relevant factors will include the vulnerability of the patient or client due to issues such as: a) age, capacity and or health conditions; the extent of the professional relationship; for example, a one off treatment in an emergency department compared to a longterm programme of treatment; and the length of time since the practitioner - patient/client relationship ceased". 1. Dr Wright said that in his opinion the commencement of an intimate relationship within a week of ceasing psychiatric treatment with a vulnerable patient is inappropriate. His opinion is that the Respondent's conduct was significantly below the relevant standard expected of a practitioner of an equivalent level of training or experience. His opinion was that a practitioner of an equivalent level of training or experience would not pursue an intimate relationship with a patient such as Patient A "at any time after having treated her". He said: "The standard reasonably expected of a practitioner of an equivalent level of training or experience is that they would put the needs of the patient foremost, which would include maintenance of appropriate boundaries and ensuring a professional relationship which had not become sexualised. In my opinion, the cessation of a therapeutic relationship did not in this case alter the inappropriateness of pursuing an intimate relationship." 1. He said that the conduct invited his strong criticism. 2. It was unsatisfactory professional conduct under s139B(1) of the National Law. 3. There are extensive findings by Dr Wright that conduct particularised in Complaint One was conduct that is significantly below the standard reasonably expected at the time from a psychiatrist of similar training or experience to the Respondent. Each of those particularised items of conduct comes within the definition in paragraph 139B the statutory definition of unsatisfactory professional conduct. 4. The Tribunal is satisfied that given the extent of these incidents of breach of professional boundaries and the fact that they continued over a period of four years together they are extremely serious. Complaint Two – Conclusions 1. This Complaint concerns the clinical records of the Respondent in relation to Patient A. 2. Dr Wright found that the consultation notes of the Respondent of 10 August 2012 for Patient A relating to what is recorded as "accidental overconsumption of Xanax last night. It was a pill box confusion, no self-harm intent" were inadequate and did not comply with the Regulation" There was evidence that the Respondent had said that he had given records of patient A to her but not retained copies. Dr Wright was concerned that it may only be part of the record as the Respondent had also stated in a response to the HCCC that he no longer held a file for Patient A. the records he had were not adequate to comply with the requirement of the Regulation or inform another practitioner assuming the care of patient A. 3. The Respondent did not at the hearing provide any other record in relation to that incident or any copy of any such record. Accordingly, on the balance of probabilities the record was the complete record of the incident. On that basis Dr Wright's opinion was that the records were inadequate because an adequate documentation would include the amount of medication consumed, the circumstances of the "pill box confusion" and the outcome of any further attention that was sought, as well as the status of the patient at the time that the file note was made. His opinion was that the records available, such as they were, fell below the standard reasonably expected at the time of a practitioner of an equivalent level of training or experience under the Regulation applicable at that time. They had no adequate record of consultations or of any treatment plan. 4. In answer to the question Dr Wright was asked to comment on the adequacy of the medical records for Patient A provided by the Respondent and whether they complied with the RACGP Standards and the Health Practitioner Regulation (NSW) 2010. He said that he had an understanding that the records were not the complete records in relation to Patient A. He said that if the documents he had seen did represent the complete file: "I would consider the initial letter to the referring GP to be adequate and the subsequent notes at each consultation to be rather superficial, and lacking in any clear review of the treatment plan. If these are indeed the complete notes, I would consider that their brevity and superficiality falls below the standard reasonably expected of a practitioner of an equivalent level of training or experience applicable at the time of the conduct and that his departure from the standard was significantly below the standard." 1. There were no other records produced to address the inadequacies described by Dr Wright. Accordingly, the notes for consultations between June 2011 and September 2012 were inadequate and there were not adequate records stating clear reviews of the treatment plan for Patient A. These matters are a breach of the requirements of the Regulation. 2. The non-compliance with the medial records requirements of the Regulation was therefore unsatisfactory professional conduct under para 139B(1)(b) of the National Law. Complaint 2 was proved. Complaint Three – Conclusions 1. Complaint Three is about two incidences where the Respondent prescribed medication in breach of the NSW Medical Council Policy: "Medical Practitioners Treating Relatives and Self". Under Particular 1 he prescribed Dexamphetamine 5 mg for Patient B, a close friend. 2. In respect of Particular 2, in May 2012 he prescribed natural progesterone cream 4% for his wife (Patient C) but indeed he intended the cream for himself. Dr Wright reported that the prescribing of the cream was intended to treat a condition and the use of the cream and the condition were outside his area of expertise. Dr Wright relied upon the Code of Conduct for treatment of a condition for Doctors in Australia which recommends that all doctors have their own general practitioner and do not prescribe medication for their own use or prescribe for friends or family. He reported: "[The Respondent's] practice in writing a prescription in his wife's name and using it to treat a condition outside his own expertise for himself falls below the standards reasonably expected of a practitioner of an equivalent level of training or expertise applicable at the time of the conduct and in my opinion this departure from the standard was significantly below the standard." 1. Prescribing natural progesterone cream for Patient C, his wife, was therefore unsatisfactory professional conduct, as was the prescription of Dexamphetamine for Patient B, a close friend. 2. The two particulars of complaint 3 are proved. They were unsatisfactory professional conduct under para 139B(1) of the National Law. Complaint Four – Conclusions 1. Complaint Four relies upon Particular 16 of Complaint One (establishing and maintaining an improper personal and sexual relationship with Patient A), Complaint Two (breach of the requirements for adequate patient records), Complaint Three (prescribing for relatives or close friends and prescribing for wife breaching the requirements of the NSW Medical Council Policy: "Medical Practitioner Treating Relatives and Self" by prescribing for a close friend and prescribing for himself, using his wife as nominated patient, in circumstances where the medication was to treat a condition outside his area of expertise). The allegation in relation to Complaint Four is that the Respondent "engaged in more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amounted to conduct of a sufficiently serious nature to justify the suspension or cancellation of the Respondent's registration". 2. The particulars of Complaint Four have been established and they each constitute unsatisfactory professional conduct that, when considered together, amounts to conduct of a sufficiently serious nature to justify the suspension or cancellation of the Respondent's registration. 3. Together they constitute professional misconduct that would justify cancellation of his registration if he were still registered. Impairment 1. Complaint Five is that the Respondent "suffers from an 'impairment' which means a physical or mental impairment, disability, condition or disorder (including substance abuse or dependence)". 2. "Impairment" is defined in s5 of the National Law as meaning: "The person has a physical or mental impairment, disability, condition or disorder (including substance abuse or dependence) that detrimentally affects or is likely to detrimentally affect- (a) for a registered health practitioner or an applicant for registration in a health profession, the person's capacity to practise the profession." Expert Evidence – Dr Anthony Samuels – Psychiatrist 1. In March 2017 the Applicant briefed Dr Anthony Samuels, a consultant psychiatrist, to carry out an assessment of the Respondent and provide a report. The first assessment was provided pursuant to the orders made as a result of the s150 hearing. He also saw the Respondent on 19 April 2017. In all Dr Samuels conducted 5 assessment reports. 2. The Respondent told Dr Samuels that in the 1980's, while working as a general practitioner he briefly saw a psychiatrist, Dr Bruce Chenoweth who conducted some Gestalt therapy. In the 1990's he commenced seeing Dr Eng Kong Tan for psychotherapy. He said this was at the suggestion of one of his supervisors when he started psychiatry training. He saw Dr Tan for two years twice a week. The Respondent said it was quite helpful to address some of his vulnerabilities, including the need to be "nice" and the need to "make things right for others". In 2004 he started to work with some adults with Attention Deficit Hyperactivity Disorder and although he had extensive experience with children, he believed he needed to learn more about ADHD. He was introduced to Kim Street, an expert in that area and as he was reading about the disorder he began to think that he himself might well have some features. He therefore consulted Kim Street some time in 2004 professionally and was prescribed some Ritalin which he took for a few weeks. But it gave him tinnitus and led to irritability. At his wife's request he ceased taking the Ritalin. 3. He told Dr Samuels that recently he had seen Dr Michael Diamond, psychiatrist, on nine occasions. 4. He said that he does not smoke and that alcohol has never been a problem for him. He said that he had gone camping with various men's groups at times and had on occasions smoked marijuana. He said that, while he was in a relationship with his patient, he was smoking marijuana more regularly; using it once or twice on weekends. He also said that when he was living with his wife he had used marijuana on maybe two or three occasions in all their years together. His wife was very opposed to the use of substances. He said that he is now not using substances of any kind and having regular urine drug screening. 5. He told Dr Samuels that childlessness became a major focus for him and his wife and after she decided not to continue with IVF attempts, he concentrated on his career, but by their 40's they did not have a sexual relationship "because in some ways this reminded them of their inability to have children". He said he felt increasingly despondent and dissatisfied in the relationship. He told Dr Samuels that he felt quite unhappy in his life and was having some passive suicidal thoughts. It was in this context that Patient A was referred to him in mid-2011 with ADHD. 6. He described Patient A as presenting as "a vivacious, smiling, and chatty 44-year-old who was a bit 'scatty'." He considered she had classical features of ADHD and started her on a medication. She had a very positive response, but although her functioning improved she became quite depressed and he told Dr Samuels that she did look depressed and he knew her history of depression. He was aware of her history of abuse and restarted an antidepressant that she had been taking before. He also continued her on the stimulant medication. 7. He said Patient A also had serious gambling debts of $160,000 and was having some thoughts of killing herself for the life insurance. He said that at that point he moved her into a more therapeutic role and sent her to Gamblers Anonymous. She also asked him at that point if he would be her therapist in relation to the childhood abuse. He said he resisted this. He said he liked her but felt she should see a trained psychotherapist and he, in fact, did later facilitate some trauma therapy for her with a psychotherapist. 8. He said that her version is different to his. He told Dr Samuels that he believes he tried to fend off seeing her in psychotherapy but she was quite insistent. He had some awareness that he really was not in an emotional space to take on her problems. He was having some suicidal thoughts in relation to his own marriage. He was concerned about his rising PSA and was quite frightened, having seen his father die of prostate cancer. He said he was just "not in a good place" but there was something about Patient A that seemed to draw him to her. 9. Dr Samuels concluded that the Respondent "did not appear at that time to be clinically depressed". But he said there was a history of "early traumatisation" and he did describe some possible features of a mild underlying Post-Traumatic Stress Disorder. Dr Samuels also reported "[The Respondent] certainly has underlying personality vulnerabilities with dependant, unassertive traits and a need to please others". Dr Samuels concluded that the relationship between the Respondent and Patient A "was clearly not therapeutic and almost certainly very destructive for the patient". 10. Dr Samuels also said: "The fact that he conspired with the patient to transfer her care to other practitioners, in order to maintain and cover up their ongoing relationship, is extremely concerning. He also deliberately hid the relationship from his sister whom he knew would challenge him. Until the situation spiralled out of control he did not seek professional help or advice and deliberately did not contact his Medical Defence Unit. He ultimately sought legal advice and opted not to disclose and followed this advice up until the mandatory notification. These behaviours suggest a pattern of duplicity and deception and raised concerns about Cluster B personality traits with narcissistic and antisocial features. It also raises the possibility that, despite the history he has outlined, this is in fact not an isolated event but part of a pattern of predatory behaviour. "Whilst some of these behaviours may be comprehensible in the context of his personality vulnerabilities, the gross professional incompetence, failure in duty of care and ethical breaches are very serious indeed. "[The Respondent] does suffer from an impairment within the meaning of the Act, namely a personality dysfunction with mixed features that has seriously impacted upon his professional practice and functioning." 1. Dr Samuels made only interim recommendations in his report of 19 April 2017 because he was aware the matter would go further as the HCCC was reviewing the matter. He recommended that the Respondent continue consultations with Dr Diamond and his consultations with his general practitioner and also continue regular urine drug screening. In relation to practice conditions Dr Samuels recommended that the Respondent should not be engaging in any formal psychotherapy with any patients "currently". He said: "If he is ever to return to this kind of work, he will need appropriate training in psychotherapy and ongoing supervision and until he has addressed his own personality issues this area of psychiatry would seem inappropriate anyway." 1. Dr Samuels understood from the Respondent that he was working with vulnerable and behaviourally disturbed children and adolescents. He said in his report: "Although he seems to be mainly working in the area of ADHD, this is an area of practise that is not without ethical challenges or vulnerable patients. . . . Drug seeking and demanding behaviour are not uncommon in this area of practice setting limits and managing these behaviours is an important component of the work." 1. He recommended that the Respondent continue to see Dr Rickarby for supervision but queried whether that was a sufficient safeguard for patients. He said that consideration may need to be given in regard to having a practice and prescribing review "in light of his history of inappropriate prescribing to [Patient A] after apparently terminating their professional relationship." 2. Dr Samuels again saw the Respondent on 5 July 2017 for review. He was provided with additional documentation, including the report from the s150 enquiry. 3. The Respondent informed Dr Samuels that he was working two days a week at a public hospital seeing mainly children and adolescents and had no inpatients. He had a small number of adults he was seeing for attention deficit hyperactivity. He was receiving supervision from Dr Rickarby twice weekly and seeing Dr Diamond once a week. Dr Diamond had commenced him on Citalopram (10mg) and he had been taking it for a month. 4. He was living alone and dating a woman he had met. He was playing soccer twice a week. 5. He told Dr Samuels that he met with the Medical Council and they were satisfied that the conditions were appropriate for the time being. He acknowledged that he needed to continue his consultations with Dr Diamond. 6. He was taking Cipramil which was alleviating his anxieties. He reported that he was sleeping well and his appetite was good. He denied being suicidal or panicky. 7. He said his current alcohol consumption was about two glasses of wine three times a week. His urine screens had been clear and he said that he "feels better not using pot". Dr Samuels reported that he appeared to be fit and healthy and "there were no neurovegetative symptoms of depression". He reported that "He continues to struggle with feelings of guilt and remorse. He is taking active steps to address these issues". 8. Dr Samuels stated his opinion on psychiatric issues as follows: "[The Respondent] seems to be quite stable from a psychiatric perspective. He understandably had a period of increased anxiety following the destruction of property and the threatening behaviour. He has consulted about this and has received support from his psychiatrist and decided to begin a SSRI-type antidepressant which he feels has alleviated a lot of the anxiety symptoms. He has been reluctant to take any action in regard to the break in and said this in a somewhat indirect way through his lawyers writing to [Patient A's] lawyers and I did raise with him my concerns about his ongoing tolerance of quite extreme behaviours and seeming inability to set limits and take measures that would be appropriate to such a situation. I made it clear that my role is not to provide any therapeutic advice but I was just bringing to his awareness a very critical issue that led him to the attention of the Council. By the end of the interview [the Respondent] indicated to me that he realised that he, in fact, needed to protect himself and he was able to acknowledge that he actually is quite frightened of the person concerned. "His general health seems good. He has a lot of social support. He is in a new relationship which is also quite supportive and it is noteworthy that his partner, who is a Social Worker, felt that he had not appropriately dealt with the threat. "My view is unchanged. [The Respondent] does suffer from an impairment within the meaning of the Health Practitioner Regulation National Law (NSW) (the Law); namely an anxiety condition which seems to be well controlled on Cipramil as well as significant underlying personality vulnerabilities." 1. Dr Samuels concluded that the suggestions he had raised in his previous report still applied because "as it is important to ensure that this really is an isolated event and not part of a wider pattern of inappropriate practise [sic]." 2. Dr Samuels saw the Respondent again on 4 October 2017 and produced a report to the Medical Council of that date. The Respondent was continuing to see Dr Diamond weekly and seeing his GP regularly. 3. He told Dr Samuels that there had been a very difficult recent incident where Patient A had phoned the hospital where he practised and complained about him being listed on the hospital website. The practice manager of his practice had then "looked up his conditions". Patient A told the hospital that if they did not do anything about his tenure, she would mount a media campaign against them. The next day she went to his rooms and sat amongst his patients. When a patient left his rooms she confronted him and said: "Why are you still working?". He refused to talk to her and went to the waiting room and showed her the door. She continued her comments to patients about their sexual relationship as she left. 4. He reported that he was continuing to see Dr Diamond weekly and finding the psychotherapy helpful. He was continuing on Citalopram 10 mg a day, Ramipril 5 mg a day and Cialis PRN. He was most of the way through the Monash Ethics Course and he reported that his mood was fine and he had a few sleepless nights after the incident with Patient A. He said that he is prone to "anxiety and vigilance" but is continuing playing soccer and his appetite is good. 5. Dr Samuels concluded: "Despite a lot of stressful events, including some harassment from his former patient, the loss of his position at [the private hospital] and having to find new rooms, [the Respondent] has been very stoical, has coped well and has access to appropriate support. He continues to work through the issues. He has applied himself diligently to the ethics course. He is reflecting on what has occurred and is certainly not making excuses but his coming to terms with his vulnerabilities which he understands will be ongoing and lifelong. He is adhering to all of the safeguards that have been put into his practice. He is certainly very concerned about patient welfare, he is being proactive in terms of handing over patients, he is realistic about the future and already making plans for that. He has longer term plans beyond whatever ensues at the HCCC." 1. Dr Samuels confirmed he still considers the Respondent suffers from an impairment within the meaning of that expression in the National Law, being "a personality vulnerability and depression". He said that the depression is well controlled on a SSRI antidepressant and "he is addressing his personality vulnerabilities with ongoing therapy with Dr Diamond". Dr Samuels concluded that the Respondent's present conditions on his registration were appropriate. 2. Dr Samuels next saw the Respondent for review on 11 January 2018. In his report of that date the Respondent told Dr Samuels he had met with officers of the HCCC since the last consultation on 4 October 2017. 3. In January he reported to Dr Samuels that he was working 2½ days per week and sharing rooms with a psychotherapist and a psychologist. He was continuing to see his supervisor, Dr Rickarby, fortnightly and had arranged a secondary supervisor to cover gaps. He was still in the relationship with a Social Worker. He was not playing soccer because of a hip issue, but was swimming and attending a gymnasium and also assisting the Social Worker with her gardening. 4. He reported that Patient A had broken into his house again with a crowbar. He had reported it to the police and requested they obtain an Apprehended Violence Order, but they had not. It appeared that as a result of that incident the Social Worker was not visiting him in Maitland anymore. He also reported that Patient A had left a photograph of him and her annotated with Nazi swastikas and also left a lighter and butane gas in the house as well as a very large axe on a chair. 5. He reported the was continuing to see Dr Diamond weekly, taking Citalopram 10 mg and his health was fine. He said he had ceased taking Ramipril and occasionally took Cilalis as required. He was sleeping well and his appetite was fine. He said that he had "waves of anxiety" about the year ahead. 6. Dr Samuels reported: "It is evident that [the Respondent] still continues to struggle with and make sense of boundary issues. He seems to suppress emotional feelings and once again relates on very aberrant and concerning behaviours by the ex-patient in a very matter of fact and controlled way and still did not seem to fully appreciate the significance of what he was telling me. [The Respondent] went on to say this had been a difficult session. He said: 'It has been difficult telling you about these things but I have to. I feel ready to face this. Despite the history and this awful situation, I am enjoying my life and building space for the future outside the profession. My own sense of resolution is that I clearly have not been psychologically fit to be a doctor. I still struggle with it and let all my patients know that I am winding up. I am struggling with it but it does not flow onto my practice'." 1. He also told Dr Samuels that in his view his practice was "going well" and he did not believe that any of the issues are currently impacting upon his patient care. 2. Dr Samuels noted in his report that the Respondent had made some admissions about other 'fairly significant boundary violations'. One was that he met his wife in the context of a professional relationship when he was a very junior doctor and commenced a romantic relationship with her. Dr Samuels expressed concern that the Respondent "does not seem to appreciate the inappropriateness of his ex-wife remaining as practice manager and particularly the fact that she recently was a recipient of a potential suicide note from [Patient A]. He seems to have no idea about how to manage this situation and he told me that she is happy in the role and he feels reluctant to terminate her position particularly as he is going to wind up the practice. I indicated to him that this was an issue he needs to talk to Dr Diamond about". 3. Dr Samuels said that his long-standing relationship with another former patient, Patient B, was of greater concern. There were no overt sexual boundary violations in that relationship, and the Respondent regarded the therapy as a success. But Dr Samuels was concerned that the Respondent did not understand the significance of the patient having a sexualised dream involving him and did not seem to appreciate the inappropriateness of the Respondent effectively becoming the substitute 'soul-mate' for an estranged brother". 4. Dr Samuels reported: "There clearly were many other boundary slippages and despite seeing her over many years and having some awareness of these, he is concerned that he never accessed any professional supervision or support in managing that situation either." 1. Although the Respondent assured Dr Samuels there had been no other issues involving patients, Dr Samuels said in his report: "Given his history I would not be entirely surprised if further issues emerged." 1. Dr Samuels concluded that the Respondent has an impairment as defined under the National Law is unchanged. He described the impairment as "including a Mood and Anxiety Disorder which seems to be reasonably well-controlled but, in addition, he has significant underlying personality vulnerability characterised by a very strong need to be loved and cared for by others, difficulties dealing with conflict and setting limits and still failing to recognise the significance of extremely disturbing behaviours." 2. He said: "The fact that he finds it difficult to perceive any boundary issue with his ex-wife remaining as his practice manager and fielding emails from his former patient, Patient A, suggests that he still has a lot of psychological work to do. Whilst he has some appreciation of the inappropriateness of his relationship with Patient B, my impression is that he is still minimising the significance of the boundary violations which, even in the absence of an actual sexual relationship, were serious." 1. In his conclusions Dr Samuels said that from the review that day his concerns had been heightened. He said: "Whilst the boundary violations with[Patient A] are the most serious, it is evident that they occurred on a background of prior escalating boundary violations. I now have significant concerns about his level of insight and current fitness to practice even with the current conditions in place. I am aware that he is not currently engaging in formal psychotherapy but I am now beginning to wonder if he should cease all forms of psychiatric practice until the matter has been heard by the HCCC and a formal determination made." 1. There was a s150C hearing by delegates of the Medical Council and in their decision the existing drug screening conditions of the Respondent's registration were removed and the following conditions were imposed: "12. To comply with the Council's Urine Drug Testing (UDT) Protocol (as varied from time to time) and attend for random UDT at his own expense. To authorise the testing facility to forward all the results of the UDT to: (a) The Council-appointed practitioners; (b) The treating practitioners; (c) The Council. To comply with the Medical Council's Drug Screening Policy and Participant Procedure: Drug Screening (as varied from time to time) and attend for: (a) Random Urine Drug Screening; and (b) Quarterly Hair Drug Screening". Expert Evidence – Dr Michael Diamond – Psychiatrist 1. Dr Diamond has been the Respondent's treating psychiatrist since January 2017. The consultations have been on 14 occasions by 19 June 2017 and weekly thereafter. 2. Dr Diamond qualified in medicine in 1976. He became a Fellow of the Royal Australian and New Zealand College of psychiatrists in 1984. He has practised since then as a consultant psychiatrist. He also has had an extensive forensic and medico-legal psychiatry practice. He has been a medical and psychiatric consultant to the Medical Council of New South Wales and involved with hearings concerning professional conduct, impaired practitioners and suitability for registration matters. He is also an Impaired Registrants Panel Member for the Council for Nurses, Midwives, Psychologists and Psychiatrists. He is a Consultant for the New South Wales Police Force, the State Crime Command and the Counter-Terrorist and Special Tactics Command. 3. From 1993 – 1999 he was the Vice Chairman of the New South Wales Branch Committee of the Royal Australian and New Zealand College of Psychiatrists. He was the Director of Post-Graduate Education in Psychiatry of the Academic Mental Health Unit of South Western Sydney Area Health Service from 1991 – 1995. He was also a member of the "Ministerial Commission" convened by the Minister for Justice of New South Wales and enquiring into suicide and self-harm in New South Wales prisons for the period March – July 1993. From time to time he has been a Psychiatric Consultant to the Health Care Complaints Commission assisting investigations. He has been a member of the Royal Australian and New Zealand College of Psychiatrists Psychotropic Drugs Committee from 1990 – 1992 and has been a Psychiatric Consultant to the Health Care Complaints Commission assisting investigations from time to time. He has been a member of the NSW Mental Health Expert Working Group "National Health Goals and Targets". 4. In his report to the solicitors for the Respondent dated 19 June 2017, Dr Diamond said that the nature of the treatment he has been administering with the Respondent has been a "psychodynamic based psychotherapy focusing upon his developmental history, the developmental challenges that he experienced within a dysfunctional and troubled family and examining the long-term impacts that this has had on his psychosocial, psychosexual and psychological developments into adulthood". 5. He reported: "The nature of treatment described is in the process of uncovering and eliminating substantial and deep insights for [the Respondent] in order to make sense of his admitted aberrant conduct". 1. He said that recently the Respondent had accepted antidepressant medication, SSRI medication Citalopram "to assist with depressive symptoms and associated anxiety". 2. Dr Diamond said in his report: "My understanding of the nature of the treatment is that it is a long-term one of therapy appropriate to addressing the long-standing and life shaping developmental pathology that has affected [the Respondent] since his early childhood." 1. Dr Diamond, in answer to a question from the solicitors said that the current practice conditions on the Respondent's registration were adequate for the health and safety of the public and advised that he agreed to the view that the Respondent should practice "in a known environment and that he should not practice outside of that environment without the Council being aware of such changes". The arrangements in force involved supervision at a regular frequency on a fortnightly basis with the supervisor reporting to the Council. 2. He referred to the report of Dr Samuels and described it as a "clear, detailed and comprehensive assessment" that reflected the careful consideration given by Dr Samuels to the material that he was provided by the Health Care Complaints Commission and any other material including the self-notification by the Respondent dated 21 December 2016 and a copy of the transcript of the s150 proceedings of 3 February 2017. 3. He referred to Dr Samuels having identified a number of instances where the Respondent colluded with his patient's disturbed behaviour. He said that Dr Samuels' comments "are understandable but, in my opinion are possibly excessive in the absence of further contextual understanding about the drives and motivations that form part of [the Respondent's] underlying personality vulnerabilities as a result of these listed observations and criticisms". 4. Dr Diamond referred to the suggestion by Dr Samuels that the behaviours of the Respondent he describes are indicative of "a pattern of duplicity and deception and raised concerns about Cluster B personality traits with narcissistic and anti-social features". He referred to Dr Samuels' statement that "Whilst some of these behaviours may be comprehensible in the context of his personality vulnerabilities, the gross professional incompetence, failure in duty of care and ethical breaches are very serious indeed". Dr Diamond agreed with that comment and that greater understanding of the Respondent's personal vulnerabilities, as was emerging in the course of his therapy, did provide a better understanding about how he conducted himself in the context of his offending behaviour. 5. Dr Diamond said in his report that the questions that flow from the observations and opinions about the Respondent's capacity to improve through the benefit of therapy over time. He said: "A better developed understanding by [the Respondent] of his deep personal vulnerabilities and the ability to show remedial responses via improved maturation, deeper insights and better developed clarity about the harm that has flowed from his dysfunctional conduct can allow for him, in the future, to be a safe practitioner working within his areas of training and competence." 1. Dr Diamond agreed with the recommendations made by Dr Samuels in his first report of 19 April 2017. 2. Dr Diamond's next report is dated 21 March 2018 to the lawyers for the Respondent. Dr Diamond reported: "[The Respondent] is deeply engaged in psychotherapy aimed at uncovering and exploring the psychological vulnerabilities that he carries, their origins and their relation to his developmental experiences as a child growing up in challenging circumstances. He has engaged in therapy that explores his past pursuit of sources of assurance and gratification that are relevant to his conduct and misconduct that relates to patients in the past. The process is ongoing. It has been challenging and distressing for [the Respondent] to face uncovering of these aspects of his personality and to appreciate how they have influenced his judgment and conduct in the past and the harm he has caused." 1. Dr Diamond had been supplied with a copy of the conditions of the Respondent's registration, the report of Dr Samuels of 11 January 2018 and the Respondent's response to that report. 2. He said in his report that he was aware of the reporting of Dr Samuels to the Council, the conditions placed on the Respondent's registration, and the need for him to comply with those conditions in order to assure the Council that he could practice safely within the constraint of those conditions. He said he was aware that the Respondent had been complying with the conditions and appreciated the necessity and purpose of the conditions. 3. He said that the assessment of the Respondent by Dr Samuels and the concern that Dr Samuels expressed about the risk the Respondent poses to the public presently came as a surprise to him. He said his view was that the risk had decreased over time rather than increased. He said this was supported by his experience of consulting with the Respondent regularly and dealing with issues noted by Dr Samuels as matters of course in his therapy with improved insight, stability of his mood and to implement the benefits of insight into improved practice and conduct. 4. In relation to the question of whether Dr Diamond considered that the current health practice conditions were adequate for the health and safety of the public, he detailed his knowledge of the compliance by the Respondent with the conditions and said he was not aware of any circumstances where the Respondent had shown short comings or conduct that caused concern regarding his ability "to practice in a manner that safeguards the health and safety of the public". He expressed the view that the present conditions served that purpose well. 5. Dr Diamond stated that the material which caused Dr Samuels to express further concern about the Respondent posing a risk to the safety of patients was material that was known to Dr Diamond and had been incorporated in the treatment of the Respondent "over many months". He said: "None of the material is current and none of it is new. Some of the more recent incidents that are described and interpreted by Dr Samuels are not factually accurate." 1. Dr Diamond said that the inaccuracies are relevant because the manner in which Dr Samuels had assembled the information led to a view of the Respondent that Dr Diamond does not share. He particularly said that: "The suggestion that he lacks understanding and insight into his past conduct is at the very least overstated and misleading". 1. Dr Diamond said that, "There was various conduct of the Respondent that demonstrated that in his dealings with Patient A were indicators of a poor understanding of the need to maintain boundaries in the clinical setting". 1. He said they were matters about which the Respondent had since gained substantial insight but did not have it at the relevant times. He expressed the opinion that the Respondent lacks insight to the extent that he is misinformed and constitutes a danger in the clinical setting, is not an accurate conclusion. He also noted that some of the information relied on by Dr Samuels about further interactions between the Respondent and Patient A recently that those were not interactions sought by the Respondent, but initiated by Patient A. He said that the Respondent understands those to be indicative of both Patient A's underlying psychological conditions that he mismanaged and also the consequence of his mismanagement. 2. He said: "He has appreciated the harm that he is responsible for. He has consulted with a number of relevant people at these times. He has been acutely aware of the complexity of the scenario that he ultimately is responsible for. He has taken advice and he has maintained a responsible position at these times". 1. Dr Diamond provided a three-page document responding to matters in the report of Dr Samuels of 11 January 2018 that he said were inaccurate or false. He referred to the findings of the s150 review interview on 5 December 2017 where the panel Review Interviewers stated: "He is able to acknowledge the gravity of his situation and expresses a clear understanding and acceptance that it was his inappropriate behaviour that led to the situation he is currently in. He impresses as feeling significant remorse for the impact on [Patient A] of his boundary violation. He has engaged well in weekly treatment with Dr Diamond and is able to identify the gains he is making from this". 1. There is a further report of Dr Diamond dated 22 February 2019. Dr Diamond had continued to provide weekly psychotherapy for the Respondent which he said constituted "ongoing examination of the fundamental underpinnings of the vulnerabilities that have caused [the Respondent] such serious consequences that relate to his professional conduct in this case". 2. He said that: "[The Respondent] had to deal with the acceptance that he should steadily withdraw from his psychiatric practice and has closed down his practice and relinquished his medical registration at this point. This is in keeping with his acceptance that he should not practice psychiatry at present. It has made the reality of relinquishing his professional registration a distressing and challenging step for him. He has conducted this process with clarity and responsibility regarding his duties to his patients primarily". 1. He referred to many other events that had occurred over the time he had been treating the Respondent, including the grave illness suffered by the Respondent's eldest brother. He said that his observation of the Respondent's overall personality function "occurred in a variety of challenging scenarios that are part of a wider spectrum of conduct beyond those issues associated with professional misconduct". 2. He said that that was important because of the question as to whether the Respondent had a severe Personality Disorder particularly toxic narcissism and an Antisocial Personality Disorder. Dr Diamond said that his observations and interactions with the Respondent throughout the therapy demonstrated a capacity for "adaptation, engagement in the therapy process, deep reflection and empathy". He said that it importantly included evidence of changes in the Respondent's behaviour over time. He instance his observation of progression over 2 years of his relationship with his partner to a healthy one. Another instance was the acceptance by the Respondent of the inappropriateness of his conduct concerning Patient A and also allowed exploration of his interaction with another patient and questions about his prescribing in relation to a third patient in accordance with the complaints. 3. Dr Diamond projected that therapy is likely to continue for "some time ahead" but may be of a lesser frequency as it produces better resolution. He also stated: "The diagnosable psychiatric illness is best understood as a reactive illness described as an Adjustment Disorder with mixed features of depression and anxiety. The condition has only, at worst, been of mild to moderate severity with the intensity of symptoms reflecting a response to external stressors. Although this is the primary psychiatric diagnosis in terms of a syndromal condition, it is important to differentiate this from severe and disabling depressive illness. There is no history of other serious Mood Disorder". 1. He said "There was no history of severe recurring Major Depressive Disorder as a primary diagnosis". 2. Dr Diamond explained why he had concluded that contrary to the opinion of Dr Samuels, he did not believe the Respondent had met the criteria for diagnosis of a Personality Disorder, although he clearly had personality vulnerabilities "that have played a significant part in contributing to professional misconduct, as is relevant to this Tribunal, but also in terms of establishing and conducting healthy relationships over the years". 3. Dr Diamond concluded that: "I do agree that he suffers impairment according to the definition of the National Law. He does have a condition that may affect the practice of medicine as is clearly evident in this case, but it does not occur on the basis of a discreet overt diagnosable psychiatric illness related to a Personality Disorder". 1. He also said: "From time to time he has had reactive illness as I have described above that has been diagnosed and treated. The formal psychiatric diagnosis of Adjustment Disorder, when it is present, has not been of significant severity so as to impair his ability to practice". 1. He said that the SSRI antidepressant medication had provided effective assistance for anxiety and depressive symptoms. He said that in the time he had been treating the Respondent, the Respondent had not used cannabis at all and his consumption of alcohol was minimal. He said that the Respondent did not have a psychiatric diagnosis in relation to substance use. 2. Dr Diamond described the Respondent as being "a motivated and engaged patient", despite the stress, embarrassment and anxiety experienced by the Respondent as he pursued the therapy. He said: "He has always been candid. He has accepted criticism. He has remediated aspects of his conduct in a diligent manner. He remains engaged in the psychotherapy process". 1. Dr Diamond considered that the Respondent had been fully compliant in relation to the registration conditions. 2. He expressed the view that the Respondent has in the period since the psychotherapy commenced developed "a very clear understanding and insight into what has underpinned his motivations, drives and sources of gratification that relate to his offending conduct" and that that level of insight in his actions "would satisfy those who wished to examine his understanding at his insight into what he has done". 3. Dr Diamond expressed the view that the Respondent is in a therapy process where he is making steady and substantial gains and he has been tested in recent times in many situations testing his fortitude and character. But "He has come through these with the benefit of greater self-awareness, deepened insight and significantly diminished propensity to engage in actions that would replicate what was occurring in the setting of his professional misconduct". 4. Dr Diamond considered that the Respondent's prognosis is good. Dr Diamond said in his report: "Whilst the conduct demonstrates an absence of the appropriate professional boundaries, the conduct of [the Respondent] lies more within the realm of his own psychological vulnerabilities, his embracing of a misguided and overly developed sense of identification with vulnerable patients and an inappropriate belief in upholding an idiosyncratic position so as to be 'special' towards some patients". 1. He noted too that it was an aspect of the Respondent's long-term practice that it largely involved "vulnerable, disempowered patients including children". 2. He also noted that the history was not one of frequent or repetitive predatory behaviour. He conceded that one could interpret his conduct in relation to Patient A as predatory and self-serving at a time when she was very vulnerable. But he said it was not a repeated pattern in the sense that he habitually has gone about interacting with his patients in a predatory fashion. 3. Dr Diamond's overall view of the Respondent was that "despite the obvious history of professional misconduct … fundamentally, [the Respondent] can be seen as a person of good character overall". Character References 1. The Respondent has relied as part of his case on character references from Dr Graeme Choat, Dr Michael Fairley, (a psychiatrist), Dr G A Rickarby (a senior specialist psychiatrist working in the areas of child and adolescent psychiatry as well as psychotherapy), and Mr Tim Martin ( a psychologist who specialises in counselling and psychotherapy). Each of these witnesses was not briefed as an expert witness but provided what is in effect a character reference. Each of them has known the Respondent for a considerable period and has respect for him in his role as a psychiatrist and also in terms of his character. 2. None of these witnesses has read the Expert's Code of Conduct for the Tribunal or stated that they understand it and will be bound by it. The evidence did not establish that any of these witnesses has any expertise on the issue of impairment at the level of the expertise of Dr Wright and Dr Diamond. Their evidence was therefore not relied upon relied upon on the issues of diagnosis or impairment. Evidence by the Respondent 1. The Respondent gave evidence for about 30 minutes and was cross-examined and asked questions by the panel for a total of more than three hours. 2. He was at times visibly upset. He said that his approach to his work had been "unfortunately guided by my unrealistic patient-oriented approach". He conceded that he had no doubt in his mind once he established an intimate relationship with Patient A that he had an obligation to self-report. He referred to some of his email correspondence with Patient A and said: "I was in an extremely disordered state of mind for some weeks". When it was put to him that he was treating patients during that time, he avoided the question twice and then said "I was disordered about how to manage my relationship with her". 3. He at times was evasive and he also volunteered unresponsive material. He was cautioned by the presiding member about his avoidance, but sometimes continued. 4. In answer to one question, he replied: "I needed more than 48 hours. I needed more time to factor in her needs". But when it was was put to him: "None of your conduct factored in her needs," he agreed. 5. When asked whether his empathy for her was served by sending her his diary entries about his feelings for her and his wife he said: "It was my attempt to give Patient A musings, to show who I am and what I think – to show my intentions – self-disclosure". 6. He said he didn't refer her to another psychiatrist "because she had a psychologist". When he was asked about the occasion when she entered into a disassociated state in his treating rooms, he admitted the event, but then avoided subsequent questions. 7. He said that at the time it did not occur to him that ending the relationship would be a breach of trust of Patient A and he listed the complexities of his life at the time and said that Patient A had remarkable strength. 8. Later he conceded that he did not consider ending the relationship as a breach of trust until it arose in psychotherapy with Dr Diamond and he said it was early in the therapy. 9. He said that Patient A had been keen for him to see a psychiatrist and he was concerned from his own experience that he may have Bipolar Disorder. He said he had depression and difficulties in his life and had been rejected by another woman who was a recent neighbour and moved in as a single mother with two children. He said they had not shared intimacy but he had daydreamed about being her partner and father of her children. 10. It was put to him that he had told a friend, Dr Dullur, that Patient A "brought up feelings in him that he 'needed to rescue'. He said that he had similar feelings in the past with some of his family members". 11. It was put to him that he may have believed at the time that in some way he was "rescuing" Patient A. He said he did not recall using that word and could not deny that he did. When it was put to him that he did believe that he was in some way "rescuing" Patient A, he avoided the question. When the question was repeated by the presiding member, he answered: "No". It was put to him that Dr Diamond had used that word and also said that the Respondent seeks "gratification". The Respondent did not respond to the question at first but then conceded the proposition. He agreed with the proposition that entering into a relationship for self-gratification "is abnormal". 12. When asked, he was unable to say precisely when it was that he formed a view that he was not professionally equipped to deal with Patient A. He said: "It was in the course of the relationship that it occurred to me that I had vastly under estimated her needs". 13. In cross-examination the Respondent said that his past psychotherapy before he commenced psychotherapy with Dr Diamond, was in 1990 with Dr Tann. When it was put to him that it will take years of therapy before he could work psychotherapy through his dysfunctional problems and he denied that proposition and said that would not happen and that it was wrong because he is now aware of his problems and can more easily address them. It was put to him that in 2016 his insight did not lead him to self-report and he said that he had had legal advice not to self-report. 14. In answer to a panel member who asked whether it was an option for him whether he did or did not give oral evidence at the hearing, and what he was wanting to achieve by doing so, he said: "To answer any questions and show respect for the process". 15. When he was asked what he was seeking from the proceedings, he said: "Some justice for [Patient A] despite her beliefs about my character …". He said that he would be given a period of cancellation and "that offers some justice to her". 16. In answer to another panel member he said that he had not told his College about the proceedings and his retirement. He conceded that a notification by another psychiatrist to the Medical Council had occurred before he notified the Council. 17. He conceded that he had said that the harm to Patient A was caused by his determination of the relationship rather than the relationship. He was asked how he could explain that the beginning of the relationship was not as important in that regard as the end of the relationship and replied: "The breach of the boundary is more damaging at the end of the relationship". He also said that the breach of trust makes the end of the relationship more serious. 18. When asked what the breach of boundary at the beginning of the relationship does, he conceded that it can make the patient lose trust in the doctor. He conceded in answer to a question from one of the panel that a sexual relationship compromises the patient's interests by putting his own personal interests into conflict with those of the patient. 19. There were two serious concerns of the panel members from the oral evidence of the Respondent. One was that, from the Respondent's evidence, it was implied that he was much more concerned about the damage occasioned to himself from the relationship and the ending of the relationship, than he was about the damage to Patient A caused by the relationship. 20. The second concern that arose was that he appeared to consider that the damage to Patient A was primarily at the end of the relationship rather than at the start or during the relationship. The relationship commenced in September 2012 and extended for four years until September 2016. 21. The Respondent in his oral evidence replied that the mental health of Patient A was more disturbed by the ending of the relationship than it was when the relationship was continuing. 22. The records of the private hospital where Patient A was admitted repeatedly for mental health problems between March 2015 and February 2019 shows that in the period from March 2015 to the ending of the relationship in September 2016, she had averaged about five days per month as an inpatient. 23. The Tribunal concluded that the Respondent did not fully recognise the vulnerability of Patient A, and the damage that his conduct occasioned her. 24. During closing submissions the panel was informed by the Respondent's legal representative that the Respondent had had psychotherapy for about 2 years 20 years ago. It appears that Dr Diamond was not provided with that information. Impairment - Conclusions 1. On the combined evidence of Dr Samuels and Dr Diamond, the Tribunal is satisfied on the balance of probabilities that the Respondent currently suffers from an impairment which is managed by medication and continuing weekly psychiatric consultations and psychotherapy. He is not registered as a medical practitioner and is not practising. Should he apply in the future for registration, there will be, in the Tribunal's opinion, a need for evidence on the issues of his mental health. Orders Sought 1. It is common ground and the Tribunal agrees that if the Respondent were still registered protection of the public would require that his registration be cancelled. 2. The submission for the Applicant is that the protection of the public would have required an order that the Respondent not be able to apply for review of the cancellation within 5 years. The submission for the Respondent is that the period be 4 years, because 5 years would be more punitive for the respondent than a period of 4 years, which would be appropriate for protection of the public. 3. The Respondent relied upon a series of 7 previous decisions of this and corresponding tribunals in Victoria and Queensland to submit that the period be significantly less than 5 years. But the facts in each those decisions involved such significant differences to those in these proceedings that they were not a relevant guide. 4. The matters that weigh in support of a 5 year restriction on the right to apply for review of the disqualification include: * Patient A was not just his patient; she was an extremely vulnerable person. Her mental health was very poor; * Despite his training and experience as a psychiatrist and his awareness of her frailties, he engaged in a sexual relationship with Patient A when he knew or should have known that such conduct would cause serious further damage to her mental health; * He continued the sexual relationship for 4 years, which is greater than almost any such case that the Tribunal is aware of; * Throughout that period he knew that his conduct was a breach of professional boundaries, prohibited by the Medical Board, and may result in cancellation of his Registration; * From time to time during that period he discussed that with Patient A and colluded with her to avoid the Medical Council becoming aware of his continuing breach of the professional boundaries; * His mental health problems have much contributed to his unsatisfactory professional conduct and professional misconduct; * Despite treatment from time to time over a period of 20 years, including recent frequent psychotherapy and other psychiatric treatment for more than 2 years, there is no evidence as to when, if ever, he can be expected to recover sufficiently to practise in a reasonable way that ensures the safety of his patients; 1. Such a period will better protect the public: * by longer protecting potential patients from being his patients; * by discouraging the Respondent from further such conduct; * by discouraging other practitioners from such conduct; * by protecting the reputation of the profession; and * by ensuring public trust in the profession is reinforced and not misplaced. 1. The Applicant also seeks a prohibition order prohibiting the Respondent for 5 years from providing any health service as defined by section 4 of the Health Care Complaints Act 1993. The Respondent did not oppose that application. Such an order should be made in order to protect the public from the Respondent practising in a different health role such as a counsellor, in which he would pose a risk to patients/customers; Non Publication Order 1. The patients of the Respondent are entitled to have their privacy protected and there should therefore be a non-publication order. Costs 1. The Applicant seeks that the Respondent pay its costs. The Respondent did not oppose the application. 2. The Tribunal's power to award costs is in cl 13 of schedule 5D of the National Law. It provides that generally costs follow the event (See Health Care Complaints Commission v Philipiah [2013] NSWCA 342). The successful party's costs will be paid by an unsuccessful party. 3. Given the findings of professional misconduct and Impairment and the success of the Applicant on other grounds, the Tribunal should order that the Respondent pay the Applicant's costs of the proceedings. Orders 1. Accordingly, the orders are: 1. The Respondent Anthony Joseph Slowiaczek is guilty of professional misconduct; 2. The Respondent is disqualified from registration as a medical practitioner; 3. The Respondent may not file any application to review the disqualification until after 30 September 2023; 4. The Respondent is prohibited until 30 September 2023 from providing any health service as defined by section 4 of the Health Care Complaints Act 1993; 5. The Respondent must pay the Applicant's costs of or incidental to these proceedings as agreed or as assessed; and 6. Broadcast or publication without the leave of the Tribunal of the name or other identifying information of any patient of the Respondent referred to in the reasons is prohibited. ********* I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar Amendments 12 July 2019 - s5 of the Public Health Act 2010 amended to s4 of the Health Care Complaints Act 1993 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: 12 July 2019