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Decision No: 03/116D
Practitioner: Name suppressed
Charge Characteristics: Sexual misconduct
Additional Orders: Doctor granted interim name suppression:  03116dfindingsnamesup
District Court granted an interim order suppressing publication of the doctor's name and any details that might identify him.
District Court granted Doctor further interim name suppression (Dr xx v Director of Proceedings (District Court, Auckland, CIV-2004-004-1631, Joyce QC DCJ, 23 July 2004))
Director of Proceedings granted private hearing:  03116dfindingsnamesup
Complainant and witnesses granted permanent name suppression:  03116dfindingsnamesup
Decision: 03116dfindings
Penalty Decision: 03116dfindingssup
  Appeal: The Doctor appealed the substantive and penalty Decisions to the District Court.
Pending the substantive appeal, the penalty Decision was stayed by the District Court and a condition was placed on the Doctor's practice (Dr xx v Director of Proceedings (District Court, Auckland, CIV-2004-004-1631, Joyce QC DCJ, 23 July 2004))
The District Court upheld the Doctor's appeal.  The Court quashed the Tribunal's finding and penalty.  The orders relating to name suppression were made permanent.  (Dr X v Director of Proceedings (District Court, Auckland, CIV-2004-004-1613, Hubble DCJ, 23 February 2007))

 
Charge:
  

The Director of Proceedings charged that between 1 August 1999 and 31 July 2000, the Doctor acted in such a way that amounted to disgraceful conduct in that he had an intimate and sexual relationship with his patient. 

 

Background: 

The patient first consulted the Doctor on 13 March 1996. He saw her again in 1997 and 1998 when she was diagnosed with ovarian cysts. In August 1999 a decision was made to have a laparoscopic tubal ligation and IUCD removal. That operation took place on 23 August 1999. On 31 August 1999 the patientís stitches from the surgery were removed by the Doctor.

Following that consultation there were numerous telephone calls between the Doctor and the patient from September through to December 1999. There were also a number of meetings, generally on a Thursday or a Saturday, towards the end of the day that took place between them over this time in his consulting rooms. There was no record of these meetings. The Doctor said that he was giving the patient informal counselling during these meetings.

Telephone communication and meetings continued through the first part of 2000 although at times the Doctor was away and contact was curtailed. Around the middle of the year, the Doctor advised the patient that he could not continue with their relationship.

The Doctor and the patient continued to have contact for the remainder of 2000 albeit not with the same intensity. On 29 November 2000 the patient had a further operation for a D&C and hysteroscopy undertaken by the Doctor.

In December 2000 the Doctor commenced counselling sessions with a psychologist.

In February 2001 the patient engaged a private investigation firm to find out whether the Doctor was having an affair with another woman. There was still telephone contact and the occasional meeting but they were general discussions relating to whether the Doctor was involved in other relationships. On 6 September 2001 the private investigator rang the Doctor posing as a friend of the patient. During the course of that conversation the Doctor admitted to having a sexual relationship with the patient.

On 3 November 2001 the Doctor and the patient met and the patient taped the conversation. The tape was subsequently damaged and restorative work was carried out to retrieve the taped conversation. In part of the retrieved conversation, the Doctor stated:

ďI have never ever been in a relationship with anybody outside my marriage other than you.Ē

The Doctor stated that he had made the admissions of a sexual relationship, which were taped, to appease the patient and because he was very stressed.

 

Finding:

The Tribunal found the Doctor guilty of disgraceful conduct.

The Tribunal acknowledged that it was faced with a situation where the patient and the Doctor differ significantly in their evidence as to the nature of the relationship.

The patient underwent a relatively straight forward operative procedure in August 1999 and there was no evidence in the Doctorís records that would indicate the existence of any psychological problems. In fact, in the notes of his consultation following the surgery on 31 August 1999, the Doctor merely noted that there should be a review in three months time. The Tribunal did not accept that what occurred between the Doctor and the patient was counselling and considered the Doctorís explanation of the counselling lacked credibility.

The Tribunal was satisfied the intensity of the telephone calls, the after hours meetings that were not the subject of appointment or record or payment and the patientís diary notes confirming the meetings and the calls all pointed to an intense infatuation that developed into an affair.

The Tribunal considered it clear that his admission that his only relationship outside his marriage had been with the patient was in order to appease her accusations of other relationships and did not appear to be based on pressure from the patient for him to admit to a sexual relationship with her. The Doctorís admission to the private investigator does appear to have been made in an unguarded moment and on the basis of possibly having an ally to deal with his problem with the patient.

In respect of the false admissions counsel referred to the Doctorís psychiatric history, particularly his depression. There was no evidence before the Tribunal that would suggest that a major depressive illness would necessarily result in a false admission.

The Tribunal was of the view that from September 1999 the Doctor and the patient began an affair that continued through until around July 2000 when the Doctor chose to discontinue the physical relationship but continued to have telephone conversations with the patient. The Tribunal considered the Doctorís actions are exacerbated by his decision to undertake further surgery on her in November 2000. By his own admission that was well after the time that he was aware of her attachment to him.

It is clear that throughout the period from September 1999 until December 2000 the patient was a patient of the Doctorís and he remained responsible for her care. In the Tribunalís view this was a very serious case, particularly as the intimate and sexual relationship took place within the consulting rooms of the Doctor. The Tribunal had very grave concerns about any form of informal counselling as described by the Doctor taking place within the context of his practice.

The Tribunal agreed that the Medical Councilís policy on doctor/patient sexual relationships is expressed in unequivocal terms. All sexual behaviour in a professional context is abusive. The onus is on the doctor to behave in a professional manner at all times. The Tribunal was satisfied that in terms of the Medical Councilís categorisation of sexual abuse, the Doctorís sexual relationship with the patient fell into the most serious of the three categories: sexual violation.

 

Penalty:

The Tribunal ordered:

  1. The Doctorís name be removed from the Register. This order was to come into effect two weeks from the date of receipt of the decision by the parties.
  2. The Doctor be censured;
  3. The Doctor pay 50 percent of the total costs of and incidental to the inquiry by the Director of Proceedings, prosecution of the charge by the Director of Proceedings and the hearing by the Tribunal.
  4. The Doctor pay a fine of $15,000; and
  5. A notice under Section 138(2) of the Act be published in the New Zealand Medical Journal;

The Tribunal also noted that if the Doctor were to apply for readmission to the Register it would recommend that the Medical Council look carefully at the question of imposing conditions on his practice. In the Tribunalís view it may be appropriate to confine the Doctorís practice initially to a public hospital where there is little opportunity to engage in the behaviour that gave rise to the complaint and finding against the Doctor.

 

Appeal:

Counsel for the Doctor appealed both the substantive and penalty Decisions of the Tribunal to the District Court.

The District Court has stayed the penalty Decision of the Tribunal pending the substantive appeal. A condition has been placed on the Doctorís practise in that the Doctor is not to examine any patients (save in circumstances of sheer emergency) except in the presence of a chaperone. (Dr xx v Director of Proceedings (District Court, Auckland, CIV-2004-004-1631, Joyce QC DCJ, 23 July 2004)).

The District Court upheld the Doctor's appeal.  The Judge considered the main issue was a purely factual one and the Tribunal could not be regarded as having special expertise in this particular manner.  The Judge found that a guilty finding could not be reached in this matter based on the evidence presented and on the required standard of proof.    The penalty orders and finding were quashed.  The orders relating to suppression were made permanent.   (Dr X v Director of Proceedings (District Court, Auckland, CIV-2004-004-1613, Hubble DCJ, 23 February 2007)).