Findings

Charge Characteristics

Additional Orders

Commonly
Cited Cases

Precis

Charge:  

The Director of Proceedings charged that between 14 October 1997 and February 1998, Dr Gray entered into a sexual relationship with his patient and was therefore guilty of disgraceful conduct.

Background: 

Dr Gray and his family moved into a house near the patient and her family. At that time the patient was consulting another practitioner. In 1994 the patient had suffered from depression and for much of 1995 was prescribed antidepressant medication.

On 12 October 1996 the patient transferred her own and her family's records to Dr Gray and consulted him as their general practitioner. Throughout the period from November 1996 to mid-1997 the patient was unwell and very unhappy in her personal life. She confided in Dr Gray in relation to personal and health issues. In mid-1997 the patient sought counselling of her own initiative.

It was the patient's evidence that she had been raped by an acquaintance when she was 17 years old. She had not reported the rape to the police at the time, but since that time she had suffered 'flashbacks' and also difficulties in her sexual relationship with her husband. The patient's evidence was that Dr Gray was aware of the counselling and the reasons for it. Dr Gray denied that the patient had told him about the reasons for the counselling.

In November 1997 Dr Gray and the patient commenced their sexual relationship. They gave conflicting accounts as to how the relationship began and who instigated it. However both agreed that the relationship was consensual. Throughout the period of the relationship the patient and her family continued to consult Dr Gray as their family doctor. At no time did Dr Gray suggest that either the patient or her husband or their children should transfer their care to any of the other practitioners available at the time.

Both Dr Gray and the patient agreed that there was no sexual intercourse between them during any clinical consultation. However, the patient gave evidence that there was physical contact of a sexual nature between them in the course of at least two consultations and on one occasion they had engaged in 'phone sex' while Dr Gray was at the surgery. Dr Gray denied both of those allegations.

Finding:

The Tribunal found Dr Gray guilty of disgraceful conduct in a professional respect.

The Tribunal considered it must be satisfied that Dr Gray's conduct in engaging in a sexual relationship with his patient would be reasonably regarded by his professional colleagues as disgraceful and dishonourable.

The Tribunal, in general, preferred the evidence given by the patient over that of Dr Gray. The Tribunal did not accept that Dr Gray was unaware of the patient's history of depression, her concerns about the possibility that she was suffering from a serious illness, the fact she was unhappy in her marriage, and that she had been raped and, for that reason, sought counselling.

The Tribunal considered that Dr Gray should have been aware of the patient's 'clinical picture' and been alert for the signs and symptoms of her depressive illness. The Tribunal was satisfied that the patient was vulnerable and therefore susceptible to abuse and/or exploitation. It considered the potential for disaster should have been plain to Dr Gray.

Penalty:

When considering penalty, whilst the Tribunal kept in mind the very serious findings it made against Dr Gray, and the concerns that it still had regarding Dr Gray's insight and overall judgment, it considered that it must take into account the fact that Dr Gray had apparently been practising safely during the three and a half years since the events giving rise to the charge occurred, and that he had put in place a number of measures to ensure not only that he practises safely, but also that the community, and the practice, within which he is currently practising can be reassured of his commitment to ensuring that he will not re-offend.

The Tribunal considered that, as a matter of fairness, it must take into account the personal rehabilitative efforts Dr Gray had made over the past three and a half years, and the steps he had taken to improve and ensure the safety of his general practice. Taking all of these matters into account, and balancing them against the public interest generally, and the interests of the community Dr Gray currently practises in, the Tribunal determined that Dr Gray should not be struck off the Medical Register.

The Tribunal ordered that Dr Gray be censured, fined $7,500.00 and pay 50% of the costs and expenses incidental to the investigation, prosecution and hearing of the charge.

The Tribunal also considered that Dr Gray's registration should be suspended for a period not exceeding six months. However, because Dr Gray had practised for three and a half years since his offending occurred, it was the Tribunal's view that it would be artificial to now suspend him from practice. But, the Tribunal was also concerned that if it did not order a period of suspension the Medical Council's unequivocal policy on sexual misconduct/abuse in the professional relationship may be undermined. Accordingly, the Tribunal also ordered that the period of suspension should itself be suspended provided that no other charge involving allegations of sexual misconduct is laid against Dr Gray during a period not exceeding three years. In the event that any such charge is laid in the Tribunal, it was ordered that Dr Gray's registration should forthwith be suspended for not less than six months, such period to commence immediately upon receipt of the charge by the Tribunal, or any successor tribunal.

The Tribunal also ordered that Dr Gray may, for a period not exceeding three years, practice medicine only in accordance with the following conditions:

1. Dr Gray is required to attend a psychiatrist for a full assessment by the psychiatrist and follow-up at approximately monthly intervals at the discretion of the psychiatrist;
2. The penalty Decision and the substantive Decision be referred to the Medical Council's Health Committee together with a request that the Committee receive reports and monitor Dr Gray's practice in such manner as the Committee deems appropriate for a period of not less than three years. Dr Gray is to observe and comply with all of the terms of any programme of reporting and/or monitoring stipulated to him by the Health Committee;
3. Dr Gray may not, except with the prior written permission of the Medical Council of New Zealand, practise medicine as a sole practitioner and, in the event he wishes to move from his current practice and/or community, he may work only with such other practitioner or practitioners and in such place or places as have from time to time been approved in writing by the Medical Council of New Zealand;
4. The Tribunal also considered that a period of mentoring would assist Dr Gray, such mentoring to provide support and some general oversight of Dr Gray's practice. The Tribunal intended that the nature of the assistance and support provided by a mentor must be provided in addition to, and separate from, Dr Gray's psychiatric care and treatment. The Tribunal considered that Dr Gray requires both mentoring and on-going psychiatric care and support to ensure the continued safety of his practise.

The Tribunal determined that these orders shall remain in place for a period of three years but it reserved leave to Dr Gray to apply to the Medical Council for a review of the conditions which the Tribunal imposed upon his practice after the expiration of two years. If Dr Gray does make such application, then the Medical Council may vary and/or remove any of the conditions stipulated after the expiration of two years if it determined that it is fair and reasonable to do so, taking into account Dr Gray's personal and professional circumstances, and the public interest.

The Tribunal further ordered publication of the above orders in the New Zealand Medical Journal.