Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Dr McCroary [2019] NSWCATOD 115 Hearing dates: 1 and 2 April 2019 Date of orders: 19 July 2019 Decision date: 19 July 2019 Jurisdiction: Occupational Division Before: N Hennessy ADCJ, Deputy President Dr M Cox, Professional Member Dr J Fogarty, Professional Member J Barker, General Member Decision: 1. Dr McCroary is guilty of unsatisfactory professional conduct. 2. Dr McCroary is reprimanded. 3. Dr McCroary's registration is subject to the following condition: To be mentored for at least 12 months and then as determined by the Council: (a) to nominate a registered experienced general practitioner to act as his professional mentor for approval by the Medical Council of NSW in accordance with the Medical Council of NSW's Compliance Policy – mentoring (as varied from time to time) and as subsequently determined by the appropriate review body; (b) to meet face-to-face monthly for at least one hour; (c) at the initial meeting the discussion is to focus on: the issues highlighted in this decision and professional boundaries and at subsequent meetings discussion is to include as necessary the issues highlighted in this decision and professional boundaries and any personal and/or medical practice issues that may arise; (d) to authorise the Council to provide a copy of the decision to his mentor; (e) to authorise the mentor to advise Council on a quarterly basis as to whether the required meetings have occurred; (f) to authorise the mentor to inform the Council immediately if the mentoring relationship ends, or of any significant concerns regarding the practitioner, or his compliance with any conditions on his registration; (g) to be responsible for any costs associated with the mentoring relationship. 4. Dr McCroary is to pay the Health Care Complaints Commission's costs as assessed or agreed. Catchwords: MEDICAL PROFESSION – unsatisfactory professional conduct and professional misconduct complaints – where doctor entered into and continued a sexual relationship with a patient - Legislation Cited: Health Practitioner Regulation National Law (NSW) Cases Cited: Australian Leisure and Hospitality Group Pty Ltd v Director of Liquor Licensing [2012] WASC 463 Chen v Health Care Complaints Commission [2017] NSWCA 186 Health Care Complaints Commission v Ake [2018] NSWSC 1170. Health Care Complaints Commission v Do [2014] NSWCA 307 Health Care complaints Commission v Dr Gow [2008] NSWMT 2 Health Care Complaints Commission v Firth (No 3) [2016] NSWCATOD 58 Health Care Complaints Commission v Gupta [2018] NSWCATOD 153 Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 Health Care Complaints Commission v Little [2016] NSWCATOD 146 Health Care Complaints Commission v Philipiah [2013] NSWCA 342 Health Care Complaints Commission v Ryken [2016] NSWCATOD 58 Health Care Complaints Commission v Skandaliaris [2018] NSWCATOD 199 Texts Cited: Good Medical Practice; A Code of Conduct for Doctors in Australia, Medical Board of Australia, March 2014 Sexual Boundaries; guidelines for doctors, Medical Board of Australia, 28 October 2011 Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Kenneth McCroary (Respondent) Representation: Counsel: L Thomas (Applicant) P Dwyer (Respondent) Solicitors: Director of Proceedings, Health Care Complaints Commission (Applicant) File Number(s): 2018/00335339 Publication restriction: Any disclosure of the name or other identifying particulars of the patient who is identified as Patient A is prohibited otherwise than is required by the parties for the proper conduct of the proceedings. Order made under Health Practitioner Regulation National law (NSW) Sch 5D cl 7. REASONS FOR DECISION Overview 1. Dr McCroary is a general practitioner. Patient A is a registered nurse employed at his practice. Dr McCroary has admitted that his conduct in entering into and continuing a sexual relationship with Patient A amounts to one kind of unsatisfactory professional conduct: Health Practitioner Regulation National Law (NSW) (National Law), s 139B(1)(a). As Dr McCroary has admitted that part of the complaint in writing, the Tribunal is not required to make findings about it: National Law, s 149(b). It follows that the particulars of Complaint 1 constitute unsatisfactory professional conduct as defined in s 139B(1)(a) of the National Law. 2. The Health Care Complaints Commission (HCCC) submits that Dr McCroary's conduct also comes within another definition of unsatisfactory professional conduct in the National Law: s 139B(1)(l). In addition, the conduct is said to amount to professional misconduct as defined in s 139E. Dr McCroary does not admit either of those parts of the complaints. 3. Dr McCroary says that the appropriate penalty is a reprimand. The HCCC says that as well as a reprimand, Dr McCroary's registration should be suspended for three months and should be subject to various conditions. The HCCC says that Dr McCroary should pay their legal costs. Dr McCroary says that he should only have to pay a proportion of HCCC's legal costs. 4. The broad issues are: 1. Does entering into and continuing a sexual relationship with Patient A amount to "improper or unethical conduct"? (In legal terms, "Is the subject matter of Complaint 1 proved in relation to unsatisfactory professional conduct as defined in s 139B(1)(l)"?) 2. Does entering into and continuing a sexual relationship with Patient A amount to professional misconduct? (In legal terms, "Is the subject matter of Complaint 3 proved?") 3. Apart from a reprimand, what protective orders should the Tribunal make, if any? 4. Should Dr McCroary be ordered to pay all HCCC's legal costs? 1. We have decided that entering into and continuing a sexual relationship with Patient A does amount to "improper or unethical conduct" but that it does not constitute professional misconduct. Apart from a reprimand, we have ordered Dr McCroary to be mentored for 12 months. In relation to costs, we have ordered Dr McCroary to pay the HCCC's costs. Background 1. Dr McCroary commenced practice as a general practitioner in 1994. Since 1997 he has practised at the Macarthur General Practice in Campbelltown, NSW. Patient A started working at the practice in March 2012. She has complex and chronic health conditions. Dr McCroary started treating her as his patient more than a year later, in June 2013. Towards the end of 2013 they started spending time together outside work. By that time, they had developed what may be described as a personal relationship. In April 2004 they began a sexual relationship. 2. Dr McCroary consulted another doctor in the practice, Dr Guest, about the propriety of continuing to treat Patient A if their relationship became intimate. Dr McCroary says that Dr Guest told him there was no problem and was very supportive. He does not recall speaking with any other colleagues about this issue. 3. Dr McCroary also read the code of practice published by the Medical Council of Australia called, "Good Medical Practice; A Code of Conduct for Doctors in Australia", March 2014. He was satisfied that he was not in breach of that code. He is not sure whether he read another, more relevant guideline about sexual boundaries, 'Sexual Boundaries; guidelines for doctors", 28 October 2011. He discussed the situation with Patient A when she first became a patient and they decided that it was appropriate for him to treat her as long as they confined discussions in consultations to medical issues. They did not discuss the issue again after they commenced a sexual relationship. 4. Dr McCroary now admits that he failed to observe professional boundaries in entering into a sexual relationship and continuing with that relationship when he was Patient A's general practitioner. He now acknowledges that Dr Guest's advice was not correct, that he misread the code of conduct and that he should have had another conversation with Patient A when they commenced a sexual relationship. However, he does not believe Patient A was vulnerable, that there was any significant power imbalance in the relationship or that he lacked objectivity. He says he now understands the potential for loss of objectivity when treating anyone with whom he has a close personal relationship. 5. Dr McCroary and Patient A gave written and oral evidence. Dr Kertesz, a general practitioner, provided an independent expert report and expanded on that evidence at the hearing. The complaints in detail and Dr McCroary's response Summary 1. Complaint 1 is a complaint of unsatisfactory professional conduct in that Dr McCroary both entered into a personal and sexual relationship with Patient A and continued to treat her for more than two years while maintaining that relationship. Complaint 3 is a complaint of professional misconduct which relies on the same two particulars both individually and cumulatively. Complaint 2 was withdrawn. Compliant 1 1. Complaint 1 is that Dr McCroary is guilty of unsatisfactory professional conduct in that he has: 1. 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 2. engaged in improper or unethical conduct relating to the practice or purported practice of medicine. 1. The two bases on which Dr McCroary is said to have been guilty of unsatisfactory professional conduct correspond with the definition of that term in s 139B(1)(a) and s 139B(1)(l) of the National Law respectively. Section 139B(1)(a) is: Conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised by the practitioner in the practice of the practitioner's profession is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. 1. Section 139B(1)(l) defines unsatisfactory professional conduct to include, "[A]ny other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession." 2. The particulars of Complaint 1 are that: 1. Dr McCroary failed to observe professional boundaries in that he entered into a personal and sexual relationship with Patient A in or around April 2014. 2. Between April 2014 and September 2016 Dr McCroary inappropriately continued to provide medical treatment to Patient A whilst maintaining a personal and sexual relationship with her in that he: 1. consulted with patient A on approximately 100 occasions; 2. prescribed medications to Patient A as set out in Annexure A. (Emphasis added.) 1. Dr McCroary admits that he is guilty of unsatisfactory professional conduct under s 139B(1)(a) of the National Law in that his conduct demonstrates that his judgment is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. The HCCC does not contend, and Dr McCroary does not admit, that his medical knowledge, skill or care is lacking in any way. 2. Dr McCroary does not admit that his conduct amounts to "other improper or unethical conduct": National Law, s 139B(1)(l). Complaint 3 1. Complaint 3 is that Dr McCroary is guilty of professional misconduct under s 139E of the National Law in that he has: 1. engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration, or 2. engaged in more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify the suspension or cancellation of the practitioner's registration. 1. Particulars 1 and 2 of Complaint 1 are relied on individually in support of Complaint 3. Particulars 1 and 2 of Complaint 1 are also relied on cumulatively. 2. Dr McCroary denies Complaint 3. Issue 1: Is entering into and continuing a sexual relationship with a patient "improper or unethical conduct"? The statutory definitions 1. Section 139B defines unsatisfactory professional conduct to include 12 kinds of conduct: National Law s 139B(a) – (l). The twelfth kind, set out in s 139B(l), is, "Any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession." (Emphasis added.) Dr McCroary has admitted that his conduct in entering into and continuing a sexual relationship with Patient A constitutes unsatisfactory professional conduct as defined in s 139B(a), but denies that it meets the definition in s 139B(l). The same conduct can breach s 139B(1)(a) and s 139B(1)(l) 1. Dr McCroary does not dispute that it is open for the Tribunal to find that his conduct comes within the definitions in both s 139B(1)(a) and s 139B(1)(l). In Health Care Complaints Commission v Little [2016] NSWCATOD 146 at [58] to [61] the Tribunal rejected the submission that the words "any other improper or unethical conduct" limited the operation of s 139B(1)(l) to conduct that did not fall within one of the other eleven paragraphs. That view has been adopted in subsequent cases including Health Care Complaints Commission v Gupta [2018] NSWCATOD 153 at [71] – [73] and Health Care Complaints Commission v Skandaliaris [2018] NSWCATOD 199 at [21]. Meaning of "improper" and "unethical" 1. The words "improper" and "unethical" are general words which, in this context, should be given their ordinary meaning: Australian Leisure and Hospitality Group Pty Ltd v Director of Liquor Licensing [2012] WASC 463 at [22]. We adopt the following Macquarie Dictionary definitions of those words: "improper" "not in accordance with propriety of behaviour, manners, etc.: improper conduct." "unethical" adjective 1. contrary to moral precept; immoral. 2. in contravention of some code of professional conduct. Expert opinion – Dr Kertesz 1. Dr Kertesz did not express a view as to whether Dr McCroary's conduct in entering into and continuing a sexual relationship with a patient was "improper or unethical". But he did say in his report that it was "significantly inappropriate." He considered that not terminating the doctor/patient relationship was conduct that fell significantly below the standard expected of a practitioner of an equivalent level of training or experience. Breach of sexual boundaries guideline 1. The Medical Board of Australia has power to develop guidelines and codes: National Law, s 39. Dr McCroary's conduct is clearly in breach of the guideline on Sexual Boundaries, "Sexual Boundaries; guidelines for doctors", 28 October 2011. That document states at point 2 on page 1, that: Good medical practice relies on trust between doctors and patients and their families. It is always unethical and unprofessional for a doctor to breach this trust by entering into a sexual relationship with a patient, regardless of whether the patient has consented to the relationship. (Emphasis added.) 1. The same point is repeated at point 6 on page 3: "Doctors are responsible for establishing and maintaining boundaries with their patients. A doctor should not enter into a sexual relationship with a patient even with the patient's consent." Continuing such a relationship, or failing to terminate the doctor/patient relationship, is also clearly in breach of the guideline. Behaving in those ways is, by definition, "sexual misconduct". At point 3 on page 2, that term is defined to include "engaging in sexual activity with a current patient regardless of whether the patient consented to the activity of not". 2. There is no dispute that Dr McCroary's conduct is in breach of the sexual boundaries guideline and that it constitutes sexual misconduct. The guideline describes that conduct as "unethical". 3. Even so, Dr McCroary argued that his conduct was not improper or unethical because: 1. he repeatedly read the code of conduct and decided that he was not in breach of that code; 2. he did not recall reading the sexual boundaries guideline; 3. he discussed the situation with Dr Guest; 4. the patient/doctor relationship had commenced when Dr McCroary and Patient A were in an employer/ employee relationship and there was no prohibition on entering into or continuing that relationship; and 5. Patient A was not vulnerable and the power imbalance was not significant; 6. his situation is much less serious than other cases where improper or unethical conduct has been found. Meaning of code of conduct 1. As well as the sexual boundaries guideline, the Medical Board of Australia has published a more general code of conduct for doctors called, "Good Medical Practice; A Code of Conduct for Doctors in Australia", March 2014. Dr McCroary said that he read the code of conduct repeatedly but did not think he was in breach. 2. The Code of Conduct contains the following information about personal relationships at 3.14. Whenever possible, avoid providing medical care to anyone with whom you have a close personal relationship. In most cases providing care to close friends, those you work with and family members is inappropriate because of the lack of objectivity, possible discontinuity of care, and risks to the doctor and patient. In some cases, providing care to those close to you is unavoidable. Whenever this is the case, good medical practice requires recognition and careful management of these issues. 1. According to Dr McCroary, words such as, "wherever possible" and "in most cases" suggest that there is no direct prohibition on treating a person with whom the general practitioner has a close personal relationship. This part of the code of conduct relates to a person with whom a practitioner already has a close personal relationship, such as a close friend or family member. Patient A became a close personal friend of Dr McCroary towards the end of 2013. 2. At 8.2, under the heading "Professional boundaries", is the following relevant information: 8.2 Professional boundaries Professional boundaries are integral to a good doctor–patient relationship. They promote good care for patients and protect both parties. Good medical practice involves: Maintaining professional boundaries. Never using your professional position to establish or pursue a sexual, exploitative or other inappropriate relationship with anybody under your care. . . . Specific guidelines on sexual boundaries have been developed by the Medical Board of Australia under the National Law.12 1. Footnote 12 in the Code of conduct is a cross-reference to the sexual boundaries guideline and the online version provides a link to that publication. 2. This part of the code of conduct is more equivocal than the sexual boundaries guideline in relation to commencing a sexual relationship with a patient. The sexual boundaries guideline states that doctors should not commence such a relationship even if the patient consents, whereas the code of conduct suggests that such relationships will contravene the code only where the doctor uses his or her professional position to establish or pursue the relationship. 3. As Dr McCroary did not consider there to be any breach of trust or power imbalance, he thought he could be completely objective. He was mistaken about that. He now acknowledges that he misread the code of conduct. Knowledge of sexual boundaries guideline 1. When asked whether he recalled having read the guideline on sexual boundaries, Dr McCroary said that it does not stick in his mind like another publication, the code of conduct, but it is possible that he read it. We are satisfied that Dr McCroary did read the sexual boundaries guideline. His evidence was that he read the code of conduct repeatedly. That code contained a cross-reference to the sexual boundaries guideline and Dr McCroary admits that it is possible that he read it. In our view, his evidence focused on the code of conduct because it is more equivocal than the sexual boundaries guideline in relation to commencing a sexual relationship with a patient. The guideline describes the kind of conduct in which Dr McCroary engaged as unethical. We agree with that characterisation. Conversation with Dr Guest 1. Dr McCroary consulted another doctor in the practice, Dr Guest, about the propriety of continuing to treat Patient A if their relationship became intimate. Dr McCroary says that Dr Guest told him there was no problem and was very supportive. He was treating his wife at the time and said it was normal practice. Dr McCroary does not recall speaking with any other colleagues about this issue. As with ignorance, bad advice does not change the nature of the conduct. Chronology of events 1. Dr McCroary submitted that he had already commenced a patient/doctor relationship with Patient A in circumstances that were entirely ethical. He subsequently fell in love with a woman who was a senior nurse of similar age. 2. It was not in breach of the guidelines or unethical for Dr McCroary to treat Patient A when she was an employee, as long as they did not have a close personal relationship. They did develop a close personal relationship at the end of 2013, but there is no complaint about Dr McCroary continuing to treat Patient A at that time. The focus of the complaint is commencing a sexual relationship when Patient A was a patient. The previous circumstances are relevant to the seriousness of the conduct, but not to whether it was unethical or improper. Vulnerability 1. The sexual boundaries guideline deals with the issue of the imbalance of power in the doctor/patient relationship: The doctor-patient relationship is inherently unequal. The patient is often vulnerable. In many clinical situations, the patient may depend emotionally on the doctor. It is an abuse of this power imbalance for a doctor to enter into a sexual relationship with a patient. 1. Patient A is a senior nurse employed by the practice and she and Dr McCroary are roughly the same age. She gave evidence saying that despite her complex care needs, she never felt vulnerable as a patient. She described herself as outspoken and as a good advocate for her own care. The HCCC agreed with Dr McCroary that Patient A was not particularly vulnerable in this case. While Patient A is not a particularly vulnerable patient, it is nevertheless unethical for a doctor to commence a sexual relationship with a current patient. Power imbalance and loss of objectivity 1. The sexual boundaries guideline makes the point at page 3, that, "[A] sexual relationship, even if the patient is a consenting adult, may impair the doctor's judgment and compromise the patient's care." Dr McCroary admits that he was providing Patient A with emotional support during consultations. He did not accept that in April 2014, when they began dating, his judgment was compromised by his affection for Patient A. Dr McCroary thought, at the time, that he had made the right decision and that he was operating within the code of practice. 2. Dr McCroary says that he thought about every issue which could arise such as psychological issues or reproductive health and encouraged Patient A to get a second opinion. They agreed that they would not continue with the doctor/patient relationship if one of them was not comfortable. He says he now understands the potential for loss of objectivity when treating anyone with whom he has a close personal relationship. 3. The fact that Patient A was not particularly vulnerable and the power imbalance was not great lessens the seriousness of the conduct, but it does not make it ethical or proper. Comparison with other cases 1. Dr McCroary also sought to distinguish his conduct from the conduct of other health practitioners who had been found to have behaved improperly or unethically in the practice of their profession. He contrasted his circumstances with that of a chiropractor, Dr Little, who had encouraged Patient B to deceive her husband in relation to the nature and extent of their relationship. The Tribunal found that Dr Little's attempts to encourage Patient B to maintain that deception were improper and unethical. The Tribunal concluded that the conduct, ". . . did not conform with standards of professional conduct and practice and as such was improper and unethical": Health Care Complaints Commission v Little [2016] NSWCATOD 146 at [72]. 2. Even if Dr McCroary was not dishonest, his behaviour was still improper and unethical. Conclusion 1. In our view, Dr McCroary's conduct was "improper and unethical conduct" relating to the practice of medicine. It was in clear breach of the guidelines relating to sexual boundaries. Even if he made a genuine mistake about what the code of conduct meant, he also read the guidelines on sexual boundaries and should have abided by it. The breach of that guideline was not minor or technical. The circumstances in which the sexual relationship began do not make the conduct ethical. Dr McCroary's judgment was clouded by his attachment to Patient A. 2. The subject matter of Complaint 1 is proved in relation to unsatisfactory professional conduct as defined in s 139B(1)(l). Issue 2: Does entering into and continuing a sexual relationship with Patient A amount to professional misconduct? Statutory definition of professional misconduct 1. Professional misconduct is defined in s 139E of the National Law in the following terms: (a) unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; or (b) more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration. Is there more than one instance of professional misconduct? 1. Complaint 1 has two particulars; entering into a personal and sexual relationship and continuing to provide medical treatment while maintaining that relationship. These two particulars are repeated for Complaint 3 and are said to comprise "more than one instance" of unsatisfactory professional conduct. Each particular is relied on individually and cumulatively. We understand that by relying on the particulars cumulatively, the HCCC is pleading that the conduct comes within s 139E(b). 2. In our view, entering into a sexual relationship with a single patient and continuing that relationship does not amount to "more than one instance of unsatisfactory professional conduct." An "instance" of unsatisfactory professional conduct" is not necessarily the same as a "particular" of such conduct. In this case, Dr McCroary entered into a sexual relationship with a patient and did not terminate that relationship or the doctor patient relationship. The continuation of the conduct is not a separate "instance" of unsatisfactory professional conduct. For that reason, the HCCC cannot rely on s 139E(b). The remaining issue is whether our findings of unsatisfactory professional conduct are of a sufficiently serious nature to justify suspension of Dr McCroary's registration. Meaning of professional misconduct in s 139E(a) 1. In Chen v Health Care Complaints Commission [2017] NSWCA 186 Basten J explained at [20] that: The term "professional misconduct" does not have a specific meaning; it is merely a category of "unsatisfactory professional conduct" which is sufficiently serious to justify suspension or cancellation 1. In Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 635 at 638, the Court of Appeal (Gleeson CJ, Meagher and Handley JJA) held that: The gravity of professional misconduct is not to be measured by reference to the worst cases, but by the extent to which it departs from proper standards. 1. In Health Care complaints Commission v Dr Gow [2008] NSWMT 2 the Medical Tribunal made the following comment in relation to the predecessor to s 139E, s 37 of the Medical Practice Act 1992: The Tribunal is satisfied that the determination of whether conduct amounts to professional misconduct has as its starting point, an objective assessment of the practitioner's conduct against the standard. The Tribunal is of the view that in coming to a decision about whether conduct is " sufficiently serious " to justify the sanction of de-registration, circumstances which bear on that objective assessment of that conduct may properly be taken into account. 1. Whether Dr McCroary's conduct is "sufficiently serious" to justify suspension (the Commission is not seeking cancellation) depends on "an evaluative judgment made by the Tribunal as to the nature and seriousness of the conduct": Chen v Health Care Complaints Commission [2017] NSWCA 186 at [20]. Expert opinion – Dr Kertesz 1. When asked to express a view about the appropriateness of commencing an intimate relationship with Patient A, Dr Kertesz wrote, in his 27 November 2017, that: Dr McCroary's conduct in commencing an intimate relationship with (Patient A) whilst she was his patient and had been for just under one year was significantly inappropriate in that he did not consider ceasing the doctor-patient relationship when the intimate relationship was being considered by each party. This failure to terminate the doctor-patient relationship with (sic) view to forming an intimate relationship with (Patient A) was conduct that fell below the standard expected of a practitioner of an equivalent level of training or experience. The degree of the conduct was significantly below that standard and invites strong criticism. 1. Dr Kertesz also responded to a question about the appropriateness of Dr McCroary ceasing to treat Patient A when he was notified of the complaint in September 2016. As no part of the complaint relates to those circumstances, that response is not relevant. Consideration 1. In this case, two categories of unsatisfactory professional conduct have been proved. The first is conduct that demonstrates that Dr McCroary's judgment is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience: National Law, s 139B(1)(a). The second is "other improper or unethical conduct": National Law, s 139B(1)(l). 2. The HCCC submitted that the Tribunal treats so called "boundary violations" of a sexual nature as a most serious category of ethical breach, almost invariably giving rise to a finding of professional misconduct. The HCCC gave several examples of cases about boundary violations involving patients where the Tribunal found the conduct to constitute professional misconduct. 3. Dr McCroary submitted that his conduct was not sufficiently serious to justify suspension for many of the same reasons that it was not unethical or improper including that he misread the guidelines; he sought advice from a colleague which confirmed his view; and that Patient A was not vulnerable. In addition, he characterised his relationship with Patient A as that of a co-ordinator, rather than her treating GP. In a letter to the Medical Council of Australia dated 24 June 2016, Dr McCroary said that he has "occasionally assisted by providing a script, e.g. for antibiotics but I do not consider myself her regular treating doctor." When questioned about this statement he said that what he meant was that her specialists were her main treating doctors. 4. In correspondence with the Health Care Complaints Commission on 13 September 2013, Dr McCroary said that he reduced his role in her medical care when the relationship deepened. In his statement to the Tribunal at [21], Dr McCroary states that he saw his role "more as establishing a system for managing and collating her various consultants and co-ordinating what was a complex collection of opinions, treatment plans and strategies for her various treatment plans." 5. In our view, by saying that he did not consider himself as Patient A's regular treating doctor, Dr McCroary was attempting to minimise the extent of his therapeutic relationship with Patient A. The records show that he wrote more than 150 prescriptions from April 2014 to September 2016. 6. In many cases involving boundary violations, the Tribunal has found the conduct to amount to professional misconduct. In Health Care Complaints Commission v Little [2016] NSWCATOD 146 a chiropractor and a patient had a month long relationship where they met socially, hugged and kissed one another and communicated on social media. The patient was vulnerable because of her health conditions. The Tribunal found that even though the relationship lasted less than a month and did not include sexual intercourse, the practitioner was guilty of professional misconduct. 7. In Health Care Complaints Commission v Firth (No 3) [2016] NSWCATOD 58, a psychologist had a personal relationship with two patients including a single act of sexual intercourse with one of them. The Tribunal concluded that the practitioner had used his practice in respect of that patient, to sexualise the relationship. When discussing so-called boundary issues at [17], the Tribunal expressed the view that ". . . one of the most extreme violations of such boundaries is to engage in an inappropriate sexual relationship between the practitioner and his patient . ." 8. In Health Care Complaints Commission v Ryken [2016] NSWCATOD 58 a chiropractor formed personal relationships with two patients (one of whom had been a long-time friend) involving intimate and/or sexual communications on social media. He also had intimate physical contact with these patients, but not sexual intercourse. The chiropractor also had a sexual relationship with a third patient. The Tribunal did not have to determine whether this conduct amounted to professional misconduct because the practitioner admitted that he was guilty of professional misconduct. 9. Another reason the HCCC regarded Dr McCroary's conduct as sufficiently serious to justify suspension was that he ignored the warning signs mentioned in the sexual boundaries guideline. Those warning signs include "inviting each other out socially". Dr McCroary and Patient A discussed 'boundary issues' when she first became his patient at the end of 2013. They agreed that they would discuss health issues during consultations and personal issues outside work. There were no further discussions when they started dating or when they entered into a sexual relationship. Dr McCroary said that when the relationship developed, he thought that the previous understanding would continue. 10. Dr McCroary was aware that it might be inappropriate to continue the doctor/patient relationship when the personal relationship became more serious. He did not 'ignore' the warning signs. Rather, he reflected on the issue and decided that it was not inappropriate to continue to treat Patient A when their relationship became intimate. 11. While Dr McCroary's judgment was sub-standard and his behaviour unethical, his conduct is not of a sufficiently serious nature to justify suspension. That is the case because of the nature of the relationship and how it developed. Patient A was not a particularly vulnerable patient even though she had complex and chronic physical health conditions. Dr McCroary had known her as an employee and a close personal friend for several years before they commenced a sexual relationship. Their feelings were mutual and the relationship has continued. Dr McCroary did not exploit or take advantage of his position of power as Patient A's treating doctor. They discussed the issues when the personal relationship commenced and decided to keep medical and personal issues separate. Despite Dr Kertesz's view, these circumstances lead us to conclude that Dr McCroary is not guilty of professional misconduct. Issue 3: Apart from a reprimand, what protective orders should the Tribunal make, if any? Disciplinary powers and parties' submissions 1. Suspension is not an option as we are not satisfied that Dr McCroary is guilty of professional misconduct: National Law, s 149C(1)(b). 2. If the Tribunal finds the subject-matter of a complaint to have been proved, or the practitioner admits to it in writing, the Tribunal may make certain orders including those in s 149A: 149A General powers to caution, reprimand, counsel etc [NSW] (1) The Tribunal may do any one or more of the following in relation to the registered health practitioner— (a) caution or reprimand the practitioner; (b) impose the conditions it considers appropriate on the practitioner's registration; (c) order the practitioner to seek and undergo medical or psychiatric treatment or counselling (including, but not limited to, psychological counselling); (d) order the practitioner to complete an educational course specified by the Tribunal; (e) order the practitioner to report on the practitioner's practice at the times, in the way and to the persons specified by the Tribunal; (f) order the practitioner to seek and take advice, in relation to the management of the practitioner's practice, from persons specified by the Tribunal. 1. The parties agree that a reprimand is an appropriate order but the HCCC also submitted that we should impose various conditions including that Dr McCroary be mentored for 12 months, that he receive treatment by a counsellor or psychologist or psychiatrist of his choice, and that he complete a course about patient boundaries. Dr McCroary submitted that the appropriate order was a reprimand, with no conditions. Legal principles 1. One object of the National Law is "to provide for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered": National Law, s 3. In exercising a function under the National Law, "the protection of the health and safety of the public must be the paramount consideration.": National Law, s 3A. Section 4 requires the Tribunal "to exercise its functions having regard to the objectives and guiding principles" set out in section 3. 2. In Health Care Complaints Commission v Do [2014] NSWCA 307 at [35], the Court of Appeal emphasised that protecting the health and safety of the public is not confined to protecting future patients from the risk of harm: It includes protecting the public from the similar misconduct or incompetence of other practitioners and upholding public confidence in the standards of the profession. Insight 1. Dr McCroary now acknowledges that he was in breach of professional boundaries to continue to treat Patient A. He regrets the situation, but at the time he misunderstood the code of conduct and thought it was sufficient if he reflected on the situation and spoke to colleagues. Since 2016, he has reflected further, participated in self-education programs and obtained support from his extended networks. He has also changed his practice so that he does not treat any staff or family members. 2. Dr McCroary has spoken informally to a colleague who is a psychiatrist and obtained a reference from him. Dr Virgona is a consultant psychiatrist who serves on the SWSPHN Mental Health Advisory Committee with Dr McCroary. Dr McCroary asked to see him in 2016 as he was concerned about how he was coping with pressures of his personal and professional life and wanted to know if he felt he required professional assistance. This was not a formal consultation but Dr Virgona formed the view that he was managing the situation and had not developed any psychiatric disorder. Dr McCroary is also seeing a clinical psychologist as a support person every two to three months. He has discussed boundary issues in those sessions. He says he is doing his best to learn and grow from the experience. Mentoring, peer support and further education 1. Dr McCroary has not received any formal mentoring or peer support in relation to the complaints, but since separating from his wife, he says he has greater access to professional colleagues and is more engaged with the profession. He meets with a professor from the University of Western Sydney every couple of months. 2. Dr McCroary has several professional affiliations. He is on the Steering Committee of the South West Sydney Regional Mental Health and Suicide Prevention Plan, the Southwestern Sydney Clinical Council, is a conjoint Lecturer at the School of Public Health and Community Medicine at the University of New South Wales and Chair of the Standards Liaison Committee for the Royal Australian College of General Practitioners (RACGP). That role involves developing standards for medical practices, rather than for practitioners. 3. Dr McCroary has completed a "Future Leaders Program" with the RACGP. References 1. Dr McCroary provided over a dozen references. Professor Reath, the Chair of General Practice at the School of Medicine, Western Sydney University, regards Dr McCroary as one of the University's most well respected GP supervisors. She attests to Dr McCroary's clinical expertise, strong sense of professional responsibility and his good character. Dr Norville worked with Dr McCroary when she was on a 6 month placement at the practice in 2015. She has remained in regular contact and regards Dr McCroary as the most significant mentor of her career. She says that he is well respected and always behaved in a professional manner. 2. Professor Kelly, Chief Medical Officer with St John Australia and Chair of the RACGP Standards Committee is impressed by Dr McCroary's integrity and honesty. Dr James Wallace, an exercise physiologist, who treats some of Dr McCroary's patients, participates in the weekly staff meetings. He expressed a positive view of Dr McCroary's professional practice, clinical expertise and his character. Conclusion 1. We are satisfied that Dr McCroary now understands that his behaviour breached professional boundaries and has developed insight into his conduct. There is, in our view, very little risk that he will make the same mistake again. He is seeing his own psychologist to deal with stress and anxiety. There is no evidence of clinical depression or any other mental health issue that needs to be addressed by a psychiatrist, psychologist or counsellor. 2. There is no doubt that Dr McCroary now understands what the guidelines on sexual boundaries mean. In circumstances where he is not at risk of repeating the behaviour, there is no point in him attending a course on that subject. 3. However, we do consider that Dr McCroary may benefit from having a professional mentor for the next 12 months. Such a relationship would give him a further opportunity to reflect on and discuss his behaviour and obtain support. The mentoring condition suggested by the HCCC is as follows: (a) to nominate a registered experienced general practitioner to act as his professional mentor for approval by the Medical Council of NSW in accordance with the Medical Council of NSW's Compliance Policy – mentoring (as varied from time to time) and as subsequently determined by the appropriate review body; (b) to meet face-to-face monthly for at least one hour; (c) At the initial meeting the discussion is to focus on: the issues highlighted in this decision and professional boundaries and at subsequent meetings discussion is to include as necessary the issues highlighted in this decision and professional boundaries and any personal and/or medical practice issues that may arise; (d) To authorise the Council to provide a copy of the decision to his mentor; (e) To authorise the mentor to report to the Council on a quarterly basis; (f) To authorise the mentor to inform the Council immediately if the mentoring relationship ends, or of any significant concerns regarding the practitioner, or his compliance with any conditions on his registration; (g) To be responsible for any costs associated with the mentoring relationship. 1. To clarify that condition (e) does not require the mentor to report on the subject matter or content of the discussions, we propose to substitute that condition with the following condition: (e) to authorise the mentor to advise Council on a quarterly basis as to whether the required meetings have occurred. 1. That condition is consistent with the Compliance Policy: Mentor publication on the Medical Council's website. Issue 4: Should Dr McCroary be ordered to pay all HCCC's legal costs? Application by Dr McCroary to pay only half of HCCC's costs 1. The Tribunal may order Dr McCroary to pay the Commission's costs: National Law, Sch 5D, cl 13(1). As the HCCC has been successful, the general rule is that the medical practitioner should pay the Commission's costs: Health Care Complaints Commission v Philipiah [2013] NSWCA 342 at [42]. 2. Dr McCroary submitted that he should only have to pay half of the HCCC's costs. On 24 January 2019, Dr McCroary's lawyers wrote to the HCCC saying that Complaint 3 alleging professional misconduct should be withdrawn in which case the matter could have been dealt with in the Professional Standards Committee which is a no cost jurisdiction. Alternatively, both Complaints 2 and 3 should be withdrawn. As Dr McCroary has admitted Complaint 1, there would then be no need for an inquiry into the complaint: National Law, s 165H. Dr McCroary added that if the HCCC proceeded on all three complaints, he would be seeking that the Commission pay his costs if the complaints are not made out. 3. The HCCC responded on 31 January 2019 advising that Complaint 2 would be withdrawn, after receiving the report from the expert witness, Dr Kertesz, but that Complaint 3 would not be withdrawn. An Amended Complaint was filed on 31 January 2019. 4. Dr McCroary submitted that he had incurred costs from 1 November 2019 when the complaint was filed until the date of withdrawal of Complaint 2. He had also incurred costs in defending Complaint 3. According to the HCCC, the withdrawal of Complaint 2 had no bearing on the costs Dr McCroary incurred. The complaint was amended before Dr McCroary filed his evidence, so no extra costs were incurred. Legal principles 1. Emmett JA set out the relevant costs principles in these kinds of proceedings in Health Care Complaints Commission v Philipiah [2013] NSWCA 342 at [42] and [44]: [42] As a general rule, costs of proceedings before the Tribunal should follow the event and mere impecuniosity is not a justifiable reason for departing from that rule. However, there are factors that might militate against the recovery by the Commission of all of its costs in particular proceedings. For example, one factor might be that the Commission failed to obtain findings of professional misconduct alleged, even though it obtained findings of unsatisfactory professional conduct. Another factor might be that the Commission failed to establish all of the particulars of professional misconduct alleged. Where discrete elements of the conduct complained of are not established, that may be relevant. A third factor might be oppressive conduct by the Commission in the way in which it prosecuted the proceedings before the Tribunal, such as taking procedural steps that gave rise to unnecessary expense in preparing for the hearing (see Lucire v Health Care Complaints Commission (No 2) [2011] NSWCA 182 at [48]-[52]). . . . [44] It is important when exercising the discretion to bear in mind that costs are intended to compensate a successful party. Costs are not intended to penalise an unsuccessful party. It is not an appropriate basis for the exercise of the discretion that an order for costs may cause hardship to the party against whom the order is made. 1. Fagan J endorsed these principles in Health Care Complaints Commission v Ake [2018] NSWSC 1170. Consideration 1. The HCCC withdrew Complaint 2 when requested by Dr McCroary to do so after receiving the report from the expert witness, Dr Kertesz. The withdrawal of the complaint at that time is not a matter which militates against the recovery by the HCCC of all of its costs. 2. The Commission failed to obtain findings of professional misconduct alleged, even though it obtained findings in relation to both aspects of unsatisfactory professional conduct. In summary, the HCCC proved Complaint 1, but did not prove Complaint 3. While Dr admitted one aspect of unsatisfactory professional conduct in Complaint 1, he did not admit that entering into and continuing a sexual relationship with Patient A was "improper or unethical conduct". The evidence and submissions relating to that issue overlapped to a large extent with the evidence and submissions relating whether entering into and continuing a sexual relationship with Patient A was professional misconduct. In those circumstances, Dr McCroary should pay 100% of the HCCC's costs. 3. The Tribunal may fix the amount of costs or order that the amount be assessed by a costs assessor: National Law, Sch 5D, cl 13(3A). In this case, we have decided to order that, if not agreed, the amount be assessed by a costs assessor. Findings and Orders 1. Dr McCroary is guilty of unsatisfactory professional conduct. 2. Dr McCroary is reprimanded. 3. Dr McCroary's registration is subject to the following condition: To be mentored for at least 12 months and then as determined by the Council: (a) to nominate a registered experienced general practitioner to act as his professional mentor for approval by the Medical Council of NSW in accordance with the Medical Council of NSW's Compliance Policy – mentoring (as varied from time to time) and as subsequently determined by the appropriate review body; (b) to meet face-to-face monthly for at least one hour; (c) at the initial meeting the discussion is to focus on: the issues highlighted in this decision and professional boundaries and at subsequent meetings discussion is to include as necessary the issues highlighted in this decision and professional boundaries and any personal and/or medical practice issues that may arise; (d) to authorise the Council to provide a copy of the decision to his mentor; (e) to authorise the mentor to advise Council on a quarterly basis as to whether the required meetings have occurred; (f) to authorise the mentor to inform the Council immediately if the mentoring relationship ends, or of any significant concerns regarding the practitioner, or his compliance with any conditions on his registration; (g) to be responsible for any costs associated with the mentoring relationship. 1. Dr McCroary is to pay the Health Care Complaints Commission's costs as agreed or assessed. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 19 July 2019