Medical Tribunal New South Wales

• Medium Neutral Citation: Health Care Complaints Commission v Dr Ristevski [2012] NSWMT 23
• Hearing dates: 10/12/2012 - 11/12/2012
• Decision date: 14 December 2012
• Jurisdiction: Civil
• Before: Elkaim SC DCJ; Dr J Ng; Dr M Higgins; Mr R Kelly

Decision

See paragraph 41

• Catchwords: Transgression of doctor patient boundaries, record keeping failure.
• Legislation Cited: Crimes (Sentencing Procedure) Act 1999; Health Practitioner Regulation National Law (NSW) No 86A
• Cases Cited: Briginshaw v Briginshaw (1938) 60 CLR 336; HCCC v Howe [2010] NSWMT; King v Health Care Complaints Commission [2011] NSWCA 253; Lee v Health Care Complaints Commission [2012] NSWCA 80
• Category: Principal judgment
• Parties: Health Care Complaints Commission (Complainant); Dr Kiro Ristevski (Respondent)
• Representation: L Fernandez (Complainant); M J Windsor SC (Respondent); Health Care Complaints Commission (Complainant); Fraser MacLennan-Pike (Respondent)
• File Number(s): 40007/12
• Publication restriction: Yes

Judgment

The proceedings

1 At the commencement of the hearing the Health Care Complaints Commission (the "HCCC") sought leave to rely on a Further Amended Notice of Complaint. The new document added a series of particulars of a failure on behalf of the doctor to record proper clinical records of consultations and referrals with Patient A. The doctor's conduct in respect of this patient is the subject of the HCCC's complaints generally. Although the Amended Complaint did not allege any failures in record keeping, with one exception, Dr Ristevski was able to deal with the new particulars. The exception was particular numbered '2' to Complaint One. This was not pressed. The Tribunal accordingly proceeded on the basis of the Further Amended Notice of Complaint, but without the withdrawn particular.

Some background

2 Dr Ristevski was born in 1952 in Macedonia. He obtained a medical degree from the University of Cyril and Methodius in, as it was then known, Yugoslavia. He came to Australia in 1982 and over a period of 10 years studied for the Australian Medical Council examinations. He was conditionally registered as a medical practitioner in 1992. In 1994 the registration became unconditional. In the same year Dr Ristevski commenced general practice at the "Bellevue Medical Centre" in Hurstville. This is also his home and with the exception of some visiting health practitioners it is essentially a sole practice.

3 On 10 June 2003 Patient A, a married woman almost aged 27, commenced working for Dr Ristevski as a receptionist. A few days later she consulted him as a patient. She continued to consult him from time to time including during October 2003. At the end of October 2003 Dr Ristevski commenced a sexual relationship with Patient A. This relationship continued until 3 July 2009 when Dr Ristevski assaulted Patient A. During the course of the relationship Dr Ristevski continued to see Patient A as a patient. However, following the consultation on 28 July 2006 Dr Ristevski no longer recorded the consultations with Patient A, making no note of her histories or of the various referrals that he gave her.

4 Following the assault in 2009 the police took action against Dr Ristevski. On 21 June 2010 he was convicted in the Sutherland Local Court on the charge of assault occasioning actual bodily harm. He was dealt with under Section 9 of the Crimes (Sentencing Procedure) Act 1999 and placed on a good behaviour bond for 12 months. An apprehended violence order was made for two years.

5 Dr Ristevski immediately appealed against both his conviction and sentence. This appeal was dealt with in the District Court on 16 February 2011. The appeal against the finding of guilt was dismissed. The sentence imposed by the magistrate was quashed and the doctor was dealt with pursuant to Section 10 of the above Act. In effect this meant that the facts of the allegation were found to have occurred but a conviction was not recorded. He was placed on a good behaviour bond for a period of two years. The apprehended violence order continued in the Local Court.

The Complaints

6 For convenience a copy of the Further Amended Complaint is annexed to these reasons.

7 The attitude of the HCCC as stated at the commencement of the hearing was that Dr Ristevski should have his registration cancelled. Dr Ristevski's response was that cancellation was not appropriate. Rather he should be allowed to continue to practise subject to a reprimand and the imposition of various conditions.

8 Learned senior counsel for Dr Ristevski indicated at the outset of the hearing that his client did not challenge any of the matters of fact alleged in the Complaint. Further, he indicated that Dr Ristevski accepted that his conduct was unsatisfactory professional conduct within the meaning of Section 139B of the Health Practitioner Regulation National Law (NSW) No 86A. However, Mr Windsor SC said that notwithstanding this concession it was not conceded that the doctor's unsatisfactory professional conduct was "of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration ..." within Section 139E. This, he said, was a decision the Tribunal needed to make.

9 Dr Ristevski did not elect to have a separate hearing in respect of consequential orders on a finding relating to his conduct (as envisaged in King v Health Care Complaints Commission [2011] NSWCA 253).

The evidence and discussion

10 Dr Ristevski's case was put through Exhibit 1. In addition, he gave oral evidence, as did Dr Adams-Dzierzba and Dr Wright.

11 The examination in chief of Dr Ristevski, appropriately, was designed to elicit his remorse for his conduct and for Patient A and to satisfy the Tribunal that he was unlikely to engage in similar behaviour in the future.

12 Dr Ristevski certainly expressed considerable remorse, apologising repeatedly both for the anguish and hurt caused to Patient A and for the insult to the long established principles of patient care upheld by the medical profession. In addition, Dr Ristevski "guaranteed" that he would never again engage in similar conduct. He said that the trauma that had been caused to Patient A, to his own family and to himself had brought home to him the extent of his wrongdoing. In addition he said Dr Wright had given greater clarity to him in a series of consultations that continued to date and would do so into the future.

13 While the Tribunal accepts that Dr Ristevski genuinely regrets what has occurred there were nevertheless a number of concerns that arose from his evidence. These included the following:

(a) Dr Ristevski said that once the relationship had commenced it was based on genuine love between him and Patient A to the extent that they both intended that Patient A should separate from her husband and enter a permanent relationship with Dr Ristevski including the possibility of marriage.

(b) Notwithstanding this, and somewhat inconsistently, Dr Ristevski said that about a year after the relationship began he concluded that it was inappropriate and he attempted to persuade Patient A that the relationship should end. Importantly, the relationship he was referring to was not that of Patient A continuing to be his patient but rather that, despite the love and affection of which he attested, that the relationship itself should end.

(c) Despite concluding that the relationship was inappropriate Dr Ristevski continued in the relationship for a number of years until July 2009.

(d) The Tribunal had the overwhelming impression that but for the events giving rise to the assault the relationship might not necessarily have ceased.

(e) Dr Ristevski's appreciation of the inappropriateness of the relationship was given practical effect when he ceased recording his consultations with Patient A after July 2006.

(f) Dr Ristevski initially said that he only continued to see Patient A because she insisted. She sometimes saw him without an appointment and he felt compelled to treat her because of the nature of her complaints. Despite this he conceded that such records as do exist do not indicate any need for emergency consultation.

14 Notwithstanding the often repeated expressions of remorse another thread that consistently appeared in Dr Ristevski's evidence was his assertion that Patient A intimidated him. There was, in the view of the Tribunal, an attempt by Dr Ristevski to shift the blame for his actions on to Patient A. He said, in effect, that she did not want to give up the relationship with him, that she insisted on coming back and she insisted on continuing to see him socially. He said it became a relationship in which he did not receive and he did not give. He said he had become impotent. Despite this, he was involved in a second sexual relationship with Ms X which commenced in 2004 and carried on for four or five years. Dr Ristevski's evidence before the magistrate suggested an air of almost normality in which he conducted these affairs concurrently.

15 Both in the Local Court and in the Tribunal he spoke of the three parties getting together to try and sort out who should, in effect, have the benefit of his companionship. He gave this evidence in the Local Court:

"WITNESS: And both of them knew, it was not a hidden thing. We sat down with them and spoke couple of times and both of them knew exactly what was happening, there were no secrets there. Both of them were treated as goddesses, as nicely as I could treat them in the best possible way. They had the option to leave and to go whenever they wanted to." (Exhibit A, Tab 26, page 102).

16 Dr Ristevski's assertions of trying to get out of the relationship with Patient A, but being prevented from doing so by her intimidatory actions, of still loving her, of concurrently having an intimate relationship with Ms X all created an almost surreal picture entirely inconsistent with the doctor's evidence of appreciating that he was doing the wrong thing.

17 Dr Ristevski said, as already noted, that from about a year after commencing the relationship with Patient A he appreciated it was wrong. He said that a little later in time he concluded that he might end up before the medical authorities (like the Tribunal) if he carried on. Despite this, because of Patient A's actions he did not end the relationship. His explanations bordered on the unbelievable.

18 Dr Ristevski said that around the end of 2005 it was a good time to end the relationship but he struggled with feelings of passion and the need to see Patient A. This seems at odds with his alleged impotency and general acceptance of an intimate relationship until 2009. He said that Patient A was persuading him that their relationship was not wrong, that it was based on true love and their children would be happy.

19 Other examples of the doctor attempting to shift the blame from himself can be found in the letter at Tab 38 of Exhibit A. On page 3 Dr Ristevski attributes an apparent revenge motive to his victim. He states that he has denied her allegations to the police. It is to be recalled that these allegations were found proved both in the Local Court and in the District Court. A similar attitude can be found in the electronic interview with the police at Tab 20, for example in Question 112. In his evidence before the Magistrate Dr Ristevski suggests an almost planned act of revenge on the part of the victim (Exhibit A, Tab 26, page 92, lines 9 to 20).

20 Dr Ristevski said on a number of occasions that the court proceedings in 2009 had been very traumatic and embarrassing for him. This is no doubt the case but the Tribunal was left with the impression that but for the court proceedings Dr Ristevski may not have appreciated the error of his ways. This was to some degree apparent in the evidence of Dr Adams-Dzierzba who became Dr Ristevski's general practitioner in 2010.

21 The Tribunal is concerned that Dr Adams-Dzierzba did not have a complete history and found his opinion difficult to accept. Dr Adams-Dzierzba said that Dr Ristevski had told him that he had been treating the relationship seriously and hoping it would continue on a long-term basis. This is despite Dr Ristevski's evidence that after about a year he changed his expectations of the relationship and in any event had already begun the separate relationship with Ms X. It is also noteworthy that Dr Adams-Dzierzba said that initially he had the impression that Dr Ristevski had come to see him to discuss the assault. This confirmed the Tribunal's impression that the events that were most acutely embarrassing and traumatic to Dr Ristevski were his involvement in the assault proceedings.

22 Dr Wright, in his oral evidence suggested a number of conditions that might be imposed on Dr Ristevski. These included working in a group practice, reducing his hours of work, not working on weekends, not providing his mobile phone number and having a mentor. He also suggested that Dr Ristevski continue to consult a psychiatrist, perhaps for a further 18 months.

23 Dr Wright said that since his consultations with Dr Ristevski had begun that he felt the doctor had gained a fuller insight into his wrongdoing. While the Tribunal has great respect for the views of Dr Wright it is also observed that Dr Ristevski knew that what he was doing was wrong, certainly from about a year after the relationship started and perhaps even, based on his evidence, before it started at all.

24 Dr Wright was asked about Dr Ristevski's manner of giving evidence, in particular his somewhat expansive answers. He said that Dr Ristevski was "naturally effusive" and that he wanted to please those persons with whom he dealt. The Tribunal had a strong feeling that Dr Ristevski's evidence to a large measure contained his perception of what he thought the Tribunal wanted to hear. This was evident, for example, in the number of times he said he was sorry for his actions.

25 In relation to record keeping, Dr Wright had not dealt with the matter in his report because he had not seen the Further Amended Complaint. Having the particulars described to him he said that he was critical of the absence of record-keeping. Adopting Dr Ristevski's words that records are kept "for good clinical care" the failure to keep records for Patient A is seen by the Tribunal as a significant transgression of his methods of practice.

26 In relation to the criminal charges, notwithstanding Dr Ristevski repeatedly saying that he accepted the findings of the District Court in relation to his appeal he nevertheless asserted that a number of the allegations made by Patient A were not correct. The Tribunal takes the view that it is bound to accept the events as found both in the Local Court and in the District Court.

27 Ultimately the Tribunal simply does not accept Dr Ristevski's statements of remorse about the relationship with Patient A other than to the extent that it has caused him considerable cost and embarrassment, particularly as a result of the criminal proceedings. The Tribunal does appreciate that the civil proceedings brought by Patient A were settled promptly but absent further information the Tribunal is not in a position to say that this was not done on advice and perhaps was an endeavour to compromise what was potentially a larger claim. The Tribunal does not accept that Dr Ristevski has appropriate insight into his wrongdoing and is certainly not confident that he is capable of avoiding a similar circumstance should it present in the future.

Resolution of the complaints

28 A summary of basic principles in HCCC v Howe [2010] NSWMT 12 is a useful introduction:

"59 This jurisdiction is exercised for the protection of the public and the medical profession. It is protective rather than punitive, and deregistration is not an automatic outcome of a finding of professional misconduct, even where that conduct is sufficiently serious to justify it: Health Care Complaints Commission v Karalasingham [2007] NSWCA 267 at [67]. It is clear that deregistration may be required in serious cases of professional misconduct in order to adequately achieve the objectives of minimising the risk of recurrence and of deterring other practitioners from engaging in such conduct and thereby maintaining public confidence in the profession: Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630; Re Dr Parajuli [2010] NSWMT 3 at [32]; Saville v Health Care Complaints Commission & Anor [2006] NSWCA 298 at [45]; Prakash v Health Care Complaints Commission [2006] NSWCA 153, Santow JA at [64] and Basten JA at [101]; Childs v Walton [1990] NSWCA 41."

29 The Tribunal is acutely aware of the seriousness of the allegations put by the HCCC and the severity of the sanctions open to it. Accordingly it has approached the evidence on the basis of the standard of proof described in Briginshaw v Briginshaw (1938) 60 CLR 336.

30 As already stated, the factual allegations in the Further Amended Complaint are accepted. It is also accepted that Dr Ristevski has been guilty of unsatisfactory professional conduct as described in Section 139B of the National Law.

31 The Tribunal is of the view that the unsatisfactory professional conduct displayed by Dr Ristevski is of such a nature as to fall within the definition of professional misconduct in Section 139E. This is for the following reasons:

(a) The maintenance of boundaries between patient and doctor is a long and well established principle of medical practice.

(b) The breach of trust involved means that a breach of the boundaries must be viewed as a particularly serious activity.

(c) Patient A was a young married woman with young children. She was also an employee of the doctor. Her circumstances made her particularly vulnerable.

(d) Having commenced a so-called "loving relationship" with Patient A, as a result of which she left her husband, Dr Ristevski continued the relationship concurrently with a relationship with Ms X.

(e) The concurrent relationship was such that Dr Ristevski found it appropriate for the two women to meet and resolve their preferences. This attitude added to the vulnerability of the young mother, namely Patient A.

(f) The failure to record the consultations deprived Patient A of a record of her medical history, which may have been of significance to treatment of her by Dr Ristovski or any subsequent practitioner.

32 The Tribunal is satisfied that Complaint 1 including all particulars besides number two have been established to the necessary standard of proof. There was in fact no dispute about this finding.

33 The Tribunal is satisfied, as already stated, that the unsatisfactory professional conduct is such that Complaint 2 has been established both in relation to Parts I and II of the Complaint.

34 In respect of Complaint 3, like Complaint 1, there was no dispute that the complaint has been established at least to the extent that the District Court confirmed a finding of guilt in respect of one offence of assault occasioning actual bodily harm, although no conviction was entered.

35 The HCCC submitted that establishment of Complaint 3 brought the matter squarely within the bounds of Section 149C(1)(c) therefore justifying the cancellation of Dr Ristevski's registration. The Tribunal does not agree that cancellation should follow. It is necessary to take Complaint 3 on its own. Like Judge Murrell in the District Court the Tribunal thinks it appropriate to take into account the same considerations in coming to the conclusion that she could apply Section 10 and not proceed to a conviction. The Tribunal is also not satisfied that it would be in the public interest to cancel the doctor's registration only on the basis of the criminal findings.

36 The Tribunal's view is different in relation to Complaint 2. The Tribunal's assessment of the seriousness of the professional misconduct displayed by Dr Ristevski, its rejection of the level of insight asserted by the doctor and its concern of future similar misconduct on the doctor's part all combine to make cancellation of his registration an inevitable result.

37 The respondent cited a number of authorities in which cancellation did not follow upon inappropriate sexual misconduct but also acknowledged that each case must be viewed on its own facts. The considerations involved in making comparative judgments were well set out by the NSW Court of Appeal in Lee v Health Care Complaints Commission [2012] NSWCA 80 in particular from paragraph 23.

38 The respondent submitted that there were a number of reasons why cancellation was not appropriate. These included the nature of the respondent's practice and in particular his service to the Macedonian community. This is an important point but one that does not surmount the necessary protection to the community that must be imposed following the doctor's conduct and the doubts of the Tribunal that he will not re-offend.

39 The conduct in this case was serious, prolonged, in the face of knowledge that it was wrong and concerned the welfare of a young woman with a young family. The Tribunal does not see any appropriate alternative to cancellation. In reaching this conclusion the Tribunal has taken into account the various 'references' submitted by Dr Ristevski and included in Exhibit 1.

40 The Tribunal does however recognise that the respondent has operated as the only doctor in his practice and that arrangements will need to be made for the benefit of his patients. The orders will therefore allow for the cancellation to be delayed for a period of about 6 weeks.

41 Accordingly the Tribunal makes the following orders:

(a) That the respondent is reprimanded.

(b) The respondent's registration is cancelled with effect from 5pm on 31 January 2013.

(c) The respondent is to pay the applicant's costs of the proceedings.

42 The Tribunal appreciates that the return to the register will require the approval of a differently constituted Tribunal. Any such application should not be made for a period 12 months.

 

 

ANNEXURE

 

 

 

 

 

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Decision last updated: 04 March 2013