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Precis

Charge

Dr Dhammika Pradeepa Dassanayake general practitioner of Christchurch, was charged with disgraceful conduct in relation to a patient (Ms B) whom he knew was diagnosed as suffering from psychiatric disorders.

The charge alleged that the doctor:

1. Had sexual intercourse with Ms B who was at the time, or had been until recently, his patient; and/or
2. Paid money in return for sexual services to Ms B who was at the time, or who had been until recently, his patient; and/or
3. Provided prescription only drugs to Ms B without prescription, and without proper medical reasons or justification for doing so and at the time when he was not Ms B’s medical practitioner and/or when he was not in a treating role with her; and/or
4. Gave Ms B advice on how to prepare a lethal dose of medication for her to use as a suicide tool; and/or
5. Following a complaint being made against him to the Health and Disability Commissioner in or about 2003 concerning his treatment of Ms B, paid to Ms B a sum of money in return for her not attending a planned interview she was to have with investigators from the Health and Disability Commissioner’s office in September 2003; and/or
6. Telephoned Ms B on the morning of the Complaint Assessment Committee’s interview of her (2 November 2004) in relation to the complaint made against him by a psychiatrist, and attempted to dissuade Ms B from meeting with the Complaints Assessment Committee in relation to that complaint.

Outcome

Particulars 1, 2, 5 and 6 were proved. Particulars 3 and 4 were dismissed as they were not proved to the requisite standard.

Background

Ms B first met the doctor in 1991 when she was in high school. He treated her for depression and anorexia

When the doctor moved to another practice in 1992, Ms B and her family transferred to the doctor’s new practice. One of Ms B’s siblings subsequently died from a drug overdose. Ms B became very depressed and her anorexia very severe. Ms B started seeing the doctor once a week for counselling in around 1996/97.

In 1997 the doctor was convicted of a number of charges of fraud and other related charges and was sentenced to imprisonment for 12 months of which he served six months.

Ms B was an inpatient at a Psychiatric Hospital from July 1998 until April 2001. The doctor visited her in hospital once in 1999.

Other than one visit from the doctor at that time, Ms B did not see the doctor until around early May 2002 when she saw him at a local supermarket. They had a chat and he told her he was doing counselling. She said she would like to go back to counselling. He telephoned her at the Stepping Stone Trust residence where she was then living, saying he wanted to meet with her for coffee in a café.

They met at a café and Ms B said about a week later he telephoned her inviting her to his home that evening. Ms B said she went to his apartment that evening and the doctor made her a coffee while they talked for about one hour to one and a half hours about what had happened to her while he had been in jail. At that visit she said he hugged her and started kissing her.

The doctor denied that they had ever met at his house. He said he saw Ms B on a few occasions in a setting like the one in the coffee shop and that discussions they had were in relation to matters at Stepping Stone and other personal matters but that they did not discuss matters to do with past [family] issues as he felt that was a matter for Stepping Stone and its counsellors.

After the first visit, Ms B said she would have gone to the doctor’s apartment about once a week. She explained that on the first few occasions she went to his flat he would just hug and kiss her, but then later had sexual relations there.

When Ms B returned from her visits to the doctor’s flat she would tell the staff at Stepping Stone about her encounters with him.

She said that throughout their relationship he told her she should never leave any text messages he had sent her on her mobile phone and that she should wipe every trace of all of them. Ms B began to feel used by the doctor but although she was feeling used and, at times, angry with him, she kept on seeing him because every time she went to his flat he would say nice things to her.

On six or seven occasions when she was at his flat, Ms B said that the doctor gave her drugs always being clonazepam or temazepam. She said he would give her about six to eight tablets at a time and would make her take the medication at his flat saying it would relax her.

The doctor said he had never dated Ms B and had never had a sexual relationship with her nor had he given her drugs. the doctor said that all the meetings he had with Ms B were in his role as a support person and were prior to his re-registration and employment as a medical practitioner in late August 2002.

Around October 2002 Ms B got a severe kidney infection, and she decided to go and see the doctor at his practice in order to get a prescription for some antibiotics. Before she left his room he gave her a kiss. When they went out to reception he told the receptionist that he wanted her notes transferred to his practice. She said they had not discussed this in his room but she was quite happy for that to be done.

During this time Ms B said she was still having sex with the doctor at his apartment about once a week.

During January 2003 Ms B said that Stepping Stone staff told her they were going to make a complaint to the Health and Disability Commissioner about the doctor, saying he was being unethical, that he was using her and that it was their role to make a complaint. She said this made her very angry because she did not want to get the doctor into trouble and told them she would have nothing to do with their complaint and would deny it all.

She reported this to the doctor one evening. When she told him that the staff were going to make a complaint she said his response was that Ms B and he would deny everything.

At the end of January 2003 Ms B was admitted to hospital after an overdose.

Ms B said the doctor was texting her and telephoning her most days and that after the complaint had been made by the Stepping Stone Trust she thought she saw him every day for a while. After a while she said they went back to seeing each other about once a week and were still having sex. She said the doctor kept telling her that she did not need the support of the staff and encouraged her to move out of the Stepping Stone residence. In early April 2003 Ms B moved out of Stepping Stone and went flatting.

On 10 April 2003, Ms B wrote to the Health & Disability Commissioner’s office informing them that she did not have any complaint about the doctor; that he had always acted professionally towards her; and that she did not agree with anything which the Stepping Stone Trust had said in its letter of complaint. Ms B told the Tribunal that the doctor told her what to write in this letter.

From around the time she left Stepping Stone in early April 2003 until early 2004, Ms B said her relationship with the doctor continued but on those occasions when she had sex with him he paid her for it at his insistence. On each occasion she said he would pay her about $30 cash and told her she had to keep quiet about their having sex otherwise she would not receive any more money.

Around the middle of 2003 Ms B was admitted to hospital again as she was suicidal. She was seeing her Therapist twice a week and was seeing her Psychiatrist about once a month. She started to tell them about the doctor and that he was paying her to have sex with him.

In August 2003 the Health & Disability Commissioner’s Office contacted her again and asked her for an interview as they were still investigating the Stepping Stone Trust’s complaint. She told them she would be interviewed.

Ms B said she met the doctor at a café where he got out his briefcase and helped her draft a letter to the Health & Disability Commissioner’s Office saying she did not want to be interviewed. She wrote down what he was dictating and that she told him she would post the letter but he insisted that he would post it himself. Ms B said the doctor paid her cash to leave town on the day that she was supposed to be interviewed by the Health & Disability Commissioner’s Office.

Ms B said that the doctor continued to pay her for sex until early 2004 when she sent him a text message around March or April 2004 saying that she wanted to stop it.

As she had been quite open with the Stepping Stone staff (particularly at the earlier stages) about her relationship with the doctor, Ms B was similarly open with her Therapist and her Psychiatrist. She told them about the sexual nature of her relationship with the doctor and other associated events.

Around April 2004, her Psychiatrist told her she was going to make a complaint to the Medical Council about the doctor and later told Ms B she had made one. Ms B said by that time she was happy to support this complaint.

The evening before the interview with the CAC was to take place, Ms B stayed at Pathways Respite. The following morning while still at Pathways she said she received a call on her mobile phone from the doctor. She said he asked her if she were going to the interview. She said she was and that she had to be honest. She said he tried to dissuade her from meeting the CAC.

Finding

The Tribunal found the doctor guilty of disgraceful misconduct.

The Tribunal considered this case was essentially about credibility. The Tribunal found Ms B to be a truthful witness. The Tribunal was impressed with all of the Stepping Stone witnesses and Ms B’s Psychiatrist and found them to be credible and reliable witnesses. The Tribunal found the doctor to be an unreliable witness.

The Tribunal found Particular 1 and 2 were established and that the doctor had sexual intercourse with Ms B.

The Tribunal was not satisfied Particular 3 was established. The prosecution did not advance evidence as to how the doctor could have got the drugs or what access he had for them. In addition the Tribunal was aware from the evidence that Ms B would from time to time stockpile drugs. While Ms B’s account was not inconsistent with the rest of her evidence, it did not quite cross the threshold of proof and accordingly the Tribunal gave the benefit of the doubt to the doctor.

The Tribunal was not satisfied Particular 4 was established. The Tribunal was not satisfied that the doctor advised her on how to prepare a lethal dose for her use as a suicide tool.

The Tribunal was satisfied Particulars 5 and 6 were established. The Tribunal found the doctor paid Ms B money in return for her not attending an interview with the HDC in September 2003. It was further satisfied that on 2 November 2004 he attempted to dissuade Ms B from meeting with the Complaints Assessment Committee.

The Tribunal found that the conduct alleged in Particulars 1, 2, 5 and 6 either separately or cumulatively amounted to disgraceful conduct and was at the high end of it.

Penalty

The Tribunal ordered that:

• The doctor’s name be removed from the Register of Medical Practitioners pursuant to section 110(a) of the Medical Practitioners Act 1995.
• The doctor be fined $5,000.
• The Tribunal made no order as to costs. However, if the doctor had not been legally aided then the Tribunal would have ordered the doctor to pay 40% of the costs of the CAC investigation and prosecution and 40% of the costs of the Tribunal.
• A report of the Tribunal’s substantive decision and this decision be published in the New Zealand Medical Journal.