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  Decision No: 98/24C
Practitioner: Dr Julian Meredith Clive White
Charge Characteristics: Inappropriate financial relationship
Pressure on a patient for financial gain
Additional Orders: Denied application for private hearing:
9824chearpriminlaw
Complainant and all witnesses granted interim name suppression: 9824chearpriminlaw
Complainant and all witnesses granted permanent name suppression:  9824cfindingssuplaw
Doctor granted interim name suppression:
9824chearpriminlaw
Doctor denied permanent name suppression:  9824cfindingssuplaw
Decision: 9824cfindings
Reasoned Decision: 9824cfindings2law
Penalty Decision: 9824cfindingssuplaw
Appeal: Doctor appealed Decision on costs to District Court - Appeal withdrawn

 

Charge:  

A Complaints Assessment Committee ("the CAC") of the Medical Council of New Zealand charged that Dr White was guilty of disgraceful conduct in a professional respect in that he:

  1. Breached ethical and professional standards by entering into or being a party to an agreement dated 7th December 1990 to purchase the property of a patient.
  2. Breached ethical and professional standards by continuing to treat the woman as a patient between the month of March and April 1997 at a time when he was engaged with financial negotiations with the woman
  3. Breached ethical and professional standards by benefiting either directly or indirectly under an all obligations mortgage executed by the woman on the 15th of April 1997 under which the amount recoverable was limited to $100,000 to secure a loan in favour of the Duke Street Health and Medical Centre Limited as borrower.
  4. Breached ethical and professional standards by engaging in financial negotiations over the period between March/April 1997 with a person who was or up until recently had been a patient of his.
  5. Breached ethical and professional standards by continuing to treat his patient having entered into or having been a party to an Agreement dated 7th December 1990 to purchase the patient's property.
  6. Breached ethical and professional standards by entering into, or being a party to, unsecured borrowing of approximately $27,000 about the end of 1991, or the beginning of 1992, from a person, who was or up until recently had been a patient of his.

(The Tribunal amended the charge by adding the sixth particular at the end of the CAC case.)

 

Background:

An elderly woman first met Dr White and his then wife in 1988 when a friendship developed. The elderly woman also became a patient of Dr White at about the same time. In December 1990 the woman entered into an agreement with Dr White under which she sold her house to Dr White's Family Trust in exchange for the right to occupy the property for the rest of her life. She received independent legal advice. Prior to the agreement Dr White spoke to the then Chairman of the Medical Practitioners Disciplinary Committee, who advised him that the proposed agreement raised a number of ethical issues, and that if the agreement went ahead it would be inappropriate for Dr White to continue to act as the woman's doctor. The agreement was duly executed on 7 December 1990. After completion of the Sale and Purchase agreement, except for a period of approximately 20 months, Dr White continued in the role of the woman's GP up until her death on 9 June 1977.

At the end of 1991 or the beginning of 1992 the woman made an undocumented loan of approximately $27,000 to the White Family Trust. Dr White claimed he was unaware of the loan at the time it was made.

In February and late in April 1997, two doctors separately diagnosed a cancerous mass in the patient's right abdomen.

During March and April 1997 Dr White's Family Trust was a 50% shareholder in the Duke Street Health and Medical Centre ("the company"). A loan to the company from a bank was secured by a mortgage over Dr White's home. As a result of a matrimonial property settlement Dr White's home was sold. Dr White was then obliged to arrange replacement security to secure the loan to the company. A suggestion was made that the woman's property be used as security. There was dispute as to whether Dr White approached the woman with the suggestion or whether the woman herself made an offer to Dr White.

The woman had legal advice as to the ramifications of signing the mortgage to use her home as security for the borrowing of the company. Her solicitor advised her not to execute the mortgage. The woman decided initially to arrange for a registration of lease for life, thereby protecting her occupation rights of her home. It was claimed that within two hours of advising Dr White's solicitors, the woman called her solicitor and told him she had changed her mind and that she wished to sign the mortgage. Dr White was present with the woman at the time. She signed the mortgage on 15 April 1997. The woman died on 9 June 1997.

 

Finding: 

The Tribunal found Dr White was guilty of disgraceful conduct in a professional respect. The Tribunal was not satisfied as to the benignity of Dr White's motives and therefore any benefit of the doubt as to whether his conduct was disgraceful was not available to him.

The Tribunal found particular 1 of the charge was established. It found the 1990 Sale and Purchase agreement was Dr White's proposal. Although the agreement facilitated payment of an overdue mortgage, the terms of the agreement were heavily weighted in Dr White's favour. The Tribunal considered the fact that the patient had independent legal advice counted for little when regard was had to the circumstances in which that advice was sought, particularly as the patient thought she had no option but to agree to Dr White's terms. The Tribunal found that it was clear the patient did not fully understand the agreement. Dr White claimed he did not know the terms of the 1990 agreement. The Tribunal did not accept this but in any event held he could not be excused on the basis that he was not aware of the terms of the agreement.

The Tribunal found particulars 2 and 4 of the charge were established. Dr White continued to treat the woman as a patient at a time when he was clearly engaged in financial negotiations with her.

The Tribunal found particular 3 established. Dr White received a benefit by reason of the woman signing the mortgage. The Tribunal found that Dr White brought some pressure to bear on the woman with respect of the mortgage. It considered this increased the degree of culpability on Dr White's part.

The Tribunal, when considering particular 5, found that despite the advice from the Chairman of The Medical Practitioner's Disciplinary Committee, Dr White (except for a period of 20 months) continued as the patient's doctor for many years with all the potential for influence that that role carried. Under the terms of the 1990 agreement Dr White stood to benefit from the patient's death or displacement from her property. This was not conducive to single-minded care in the best interests of the patient. The Tribunal found Dr White was well aware of the risks when he continued to treat the patient. He was aware of the very serious ethical issues arising out of him being a party to the 1990 agreement. He chose to take that risk and in so doing misconducted himself at the highest level.

The Tribunal found particular 6 was not proven. There was no dispute that the woman made an unsecured undocumented loan of $27,000 to assist the White Family Trust in purchasing a property. Dr White claimed that as a trustee he had no idea where the money for the Trust's purchase of the property came from. The Tribunal held that while there was merit in the submission that it was difficult to comprehend Dr White could be so na´ve in matters concerning the Trust, there was sufficient evidence given on Dr White's behalf to suggest he did not know. He should, therefore, be given the benefit of the doubt.

Having made adverse findings against Dr White in respect of five out of six particulars, the Tribunal held that the overall gravity of his conduct warranted a determination that his behaviour was disgraceful conduct in a professional respect.

 

Note: 

The Tribunal held there is an ethical and professional caveat against financial dealings between doctor and patient, in much the same way there is a caveat against sexual relations between doctor and patient. The Tribunal considered that in the event of a financial transaction occurring between doctor and patient, then the resultant threshold of suspicion mandates the effective formal cessation of the relationship immediately. It was held it is the duty of the doctor to bring the professional relationship to an end.

 

Penalty:

Dr White's name had already been removed from the Register as a result of earlier charges, so Dr White's ability to practise medicine was no longer an issue.

The Tribunal ordered that Dr White be censured and pay costs of $65,456.00 and publication of the hearing in the New Zealand Medical Journal.  The order prohibiting publication of Dr White's name was vacated.  The order prohibiting publication of the name and particulars of all patients and complainants was made final.

Accompanying the censure the Tribunal issued the following warning to the medical profession:

"A doctor should not enter into any financial arrangement with any patient above and beyond the fee he/she is entitled to charge for his/her professional services."

 

Appeal:

The Doctor lodged an appeal with the District Court in relation to costs.  The appeal was withdrawn.