Medical Tribunal New South Wales

• Medium Neutral Citation: HCCC v McKay [2013] NSWMT 20
• Hearing dates: 18 and 19 November 2013
• Decision date: 17 December 2013
• Before: Levy SC DCJ; Dr P Anderson; Dr E Kok; Ms A Collier

Decision

See paragraph [75] for orders.

• Catchwords: MEDICAL PRACTITIONER - general practitioner - inappropriate personal relationships with two patients - professional misconduct
• Legislation Cited: Health Practitioner Regulation National Law (NSW) No 86a, s 139B, s 139E, s 149C, cl 7 Sch 5D; Medical Practice Regulation 2003 (NSW) (repealed), Cl 5 and Sch 2
• Cases Cited: Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336; King v Health Care Complaints Commission [2011] NSWCA 353
• Category: Principal judgment
• Parties: Health Care Complaints Commission (Complainant); Dr Michael McKay (Respondent)
• Representation: Mr A Britt (Complainant); Respondent in person; Health Care Complaints Commission (Complainant); Respondent in person
• File Number(s): 40034/12
• Publication restriction: Suppression order made in respect of the patients named in the complaints and in the evidence

Judgment

Table of Contents

The proceedings	[1] - [4]
Non-publication order	[5]
Dr McKay's registration history	[6] - [8]
The complaints	[9] - [16]
Evidence	[17] - [19]
Disciplinary history	[20]
Facts	[21] - [39]
Dr McKay's responses to the complaints	[40] - [41]
Dr McKay's personal circumstances	[42] - [54]
Findings	[55] - [58]
Considerations for protective orders	[59] - [74]
Protective orders	[75]

The proceedings

1 This tribunal was convened to inquire into three inter-related disciplinary complaints filed by the Health Care Complaints Commission ["HCCC"] concerning the conduct of Dr Michael McKay, a general medical practitioner.

2 The conduct in question concerned Dr McKay's pursuit of inappropriate personal and sexual relationships with two of his patients whilst he was practising in Penrith, NSW. Those events, which were conceded, occurred between January 2002 and July 2007. The proceedings are governed by the Health Practitioner Regulation National Law (NSW) No 86a ["National Law (NSW)"].

3 In these proceedings, the HCCC was represented by solicitors and by counsel. Until a few months before the hearing, Dr McKay had legal representation in respect of the subject matter of these complaints. At the hearing before the tribunal Dr McKay elected to be self-represented. At the outset of the hearing, when the question of his representation was raised, he indicated that he wished to proceed to finalise the proceedings without legal assistance.

4 Dr McKay has accepted the validity of the complaints as particularised against him.

Non-publication order

5 As a preliminary matter, at the commencement of the hearing on 18 November 2013, the tribunal made an order pursuant to cl 7 Sch 5D of the National Law (NSW) prohibiting the publication or disclosure of the names, addresses, or any other evidence and information that might tend to or lead to the identification of the two female patients who are the subject of these proceedings.

Dr McKay's registration history

6 Dr McKay is presently aged 60 years. He obtained general registration as a medical practitioner in 1978, after graduating from the University of New South Wales in 1976, with the degrees Bachelor of Medicine and Bachelor of Surgery. In 1979, he obtained a Diploma from the Royal Australian College of Obstetrics and Gynaecology.

7 Dr McKay has practised as a general practitioner in Wollongong, Coffs Harbour, Penrith and Erina. On 3 May 2013, he took leave of absence from medical practice pending the resolution of these proceedings. He did not renew his registration as a medical practitioner when it was due for renewal on 30 September 2013. Accordingly, he is currently not a registered medical practitioner.

8 Notwithstanding Dr McKay's present unregistered status, the tribunal is obliged to consider the evidence and proceed to record its findings on the conduct in question.

The complaints

9 The first complaint, which was brought pursuant to s 139B of the National Law (NSW), alleged unsatisfactory professional conduct on the part of Dr McKay because of his relationship with the person described in the complaint as Patient "A". She was his patient between October 1999 and 25 March 2002.

10 The particulars of that first complaint, which Dr McKay accepts, are that in the course of his treatment of Patient "A" for complaints of debilitating pain, depression and other chronic illnesses, including treatment whereby he had provided her with counselling, he failed to maintain the proper professional boundaries that are required in the doctor and patient relationship. It is alleged that by so doing, he breached the NSW Medical Board Policy on Sexual Misconduct.

11 Dr McKay has acknowledged that such breach occurred in the following manner:

(1) Between about 1 January 2002 and 31 March 2002, he failed to maintain proper professional boundaries with Patient "A" in that he:

(a) discussed his own marital problems with Patient "A" during her consultations with him;

(b) accepted emotional support from Patient "A" in relation to his own marital problems;

(c) discussed his intimate feelings towards Patient "A" during her consultations with him;

(d) having entertained Patient "A" by dining with her and seeing a film with her in either late February or early March 2002;

(2) On or about 30 March 2002, he commenced an inappropriate sexual relation with Patient "A";

(3) He failed to properly refer Patient "A" to another general practitioner in January 2002;

(4) By his conduct as set out in particulars (1) to (3) above, he breached the NSW Medical Board Policy on Sexual Misconduct in that he:

(a) allowed Patient "A" to move into his home on or about 30 March 2002;

(b) commenced an inappropriate sexual relationship with Patient "A" on or about 30 March 2002, in the foregoing circumstances.

12 The second complaint, which was brought pursuant to s 139B of the National Law (NSW), alleged unsatisfactory professional conduct on the part of Dr McKay because of his relationship with the person described in the complaint as Patient "B". She was his patient between April 2000 and 18 July 2007.

13 The particulars of the second complaint, which Dr McKay also accepts, arise in the context of his treatment of Patient "B" for her chronic eating disorder condition of anorexia nervosa. In May 2005 Patient "B's" condition became potentially unstable when her partner left her. From May 2005 Dr McKay took sole responsibility for treating that condition. In doing so, he failed to maintain proper professional boundaries in the doctor and patient relationship, and by so doing, breached the NSW Medical Board Policy on Sexual Misconduct.

14 Dr McKay has acknowledged such breach occurred in the following manner:

(1) Between about September 2006 and 18 July 2007 the practitioner failed to maintain proper professional boundaries with Patient "B" in that he:

(a) discussed with Patient "B" his personal interest in her and her personal interest in him during consultations;

(b) engaged in inappropriate physical contact with Patient "B" during consultations, including kissing and cuddling;

(c) provided Patient "B" with his mobile telephone number and told her to call him for 'anything';

(d) visited Patient "B" at her home regularly;

(2) Between 18 July 2007 and about November 2007 the practitioner engaged in an inappropriate personal relationship with Patient "B" in that he:

(a) had frequent telephone contact with Patient "B" of a personal nature;

(b) socialised with her outside of the practice;

(c) visited Patient "B" at her home regularly;

(d) moved into the home of Patient "B" in approximately November 2007;

(3) From about August 2007 the practitioner commenced an inappropriate sexual relationship with Patient "B";

(4) The practitioner failed to properly refer Patient "B" to another practitioner in or about September 2006 and thereafter;

(5) By his conduct set out at Particulars 1 - 4 above, the practitioner breached the NSW Medical Board Policy on Sexual Misconduct and the NSW Medical Board Code of Professional Conduct - Good Medical Practice;

(6) From about October 2006 until 18 July 2007, the practitioner failed to provide adequate care and/or treatment to Patient "B" in relation to her anorexia nervosa in that he:

(a) failed to develop, review and/or record a management plan in relation to his treatment of Patient "B";

(b) failed to make and/or adequately follow-up referrals for specialist care;

(c) failed to seek the assistance and/or guidance of practitioners experienced in the field of treating anorexia nervosa, or otherwise failed to record doing so;

(d) failed to conduct and/or record adequate physical examination and medical monitoring, including assessment of Patient "B's" postural hypertension, pulse rate and serum electrolytes;

(e) failed to conduct and/or record a comprehensive psychological assessment;

(f) encouraged Patient "B" to be emotionally dependent on him;

(g) failed to make appropriate arrangements for the handing over of Patient "B's" care to another practitioner on cessation of the professional relationship;

(7) From about October 2006 to 18 July 2007, the practitioner failed to keep adequate medical records in relation to his care and treatment of Patient "B" in accordance with the requirements of Cl 5 and Sch 2 of the Medical Practice Regulation 2003 (NSW) (repealed).

15 The third complaint, which was brought pursuant to s 139E of the National Law (NSW), alleges that by reason of the subject matter of the first two complaints, when either taken individually or cumulatively, Dr McKay's conduct in question was of a sufficiently serious nature to justify suspension or cancellation of his registration.

16 In these proceedings, Dr McKay has accepted that the described conduct occurred and he has accepted that this amounts to professional misconduct on his part.

Evidence

17 The HCCC tendered two volumes of documents: Exhibit "A", Tabs 1 to 69. Those documents included the forms of complaint to the HCCC in respect of both Patient "A" and Patient "B". The content of that evidence was not disputed by Dr McKay.

18 Patient "B" was the only patient who gave oral evidence. Her evidence was not challenged by Dr McKay. The HCCC called two expert witnesses who provided evidence of Dr McKay's failure to observe the professional standards required of him in relation to his care of the patients who were the subject of these complaints. The first such witness was Dr Ian Chung, a general practitioner, the second such witness was Professor Jan Orman, an expert in the treatment and management of eating disorders. Both experts expressed strong peer criticisms of Dr McKay's management of the eating disorder suffered by Patient "B". Dr McKay did not challenge those opinions.

19 Dr McKay gave oral evidence. In his evidence he acknowledged the facts underlying each complaint and he acknowledged that the circumstances, which he has conceded, amounted to both unsatisfactory professional conduct and professional misconduct, as alleged in the complaints. It is therefore unnecessary to further set out the factual details beyond that recorded in paragraphs [9] to [14] above.

Disciplinary history

20 Before the advent of these proceedings, Dr McKay's relationship with Patient "A" had been the subject of an earlier HCCC investigation. That investigation had been terminated on 24 August 2004 by means of an administrative decision made by the HCCC: Exhibit "A", Tab 63. However, that complaint was re-activated on 18 May 2011 after the HCCC received the complaint in respect of Patient "B": Exhibit "A", Tab 64.

Facts

21 There is no dispute that Dr McKay's sexual relationships with both Patient "A" and Patient "B" were entirely consensual.

22 Patient "A" was not called to give evidence. The substance of the complaint against Dr McKay concerning Patient "A" was that approximately 6 days after his last consultation with her on 25 March 2002, he commenced a sexual relationship with her and began living with her.

23 In relation to the complaint regarding Dr McKay's relationship with Patient "A", the HCCC tendered the opinion of Dr Michael Harding, a general practitioner, expressing the view that Dr McKay's conduct with regard to Patient "A" had fallen below the accepted standard in that a personal and sexual relationship had commenced shortly after Dr McKay's professional relationship with his patient had ended. The evidence disclosed that in relation to Patient "A", Dr McKay's departure from the accepted standard of practise attracted mild peer disapproval.

24 Patient "B" was born in 1972. In 2007, when the relationship with Dr McKay had commenced, she was aged 35 years. She was married but separated, and she had two children, who were respectively aged 10 and 12 years.

25 Medicare records show that Dr McKay had rendered professional fees for seeing Patient "B" on some 75 occasions between 3 April 2000 and 30 March 2006, before a personal relationship had developed between them.

26 The Medicare records also show that from 3 April 2006 until 19 July 2007, Dr McKay had rendered professional fees for seeing Patient "B" on some 127 occasions.

27 Dr McKay's clinical notes in respect of Patient "B" contain only brief entries for his consultations with her: Exhibit "A", Tab 17. Dr McKay conceded his records concerning Patient "B" were inadequate.

28 Patient "B" complained that Dr McKay had failed to provide her with proper treatment for her condition of anorexia nervosa, a condition from which she had suffered since her teenage years.

29 Patient "B" commenced consulting Dr McKay's practice in 1999. These consultations were for herself and in respect of, or mainly for, her children. Her partner had left her in April 2005. As a reaction to that separation she had started losing significant amounts of weight and her previous eating disorder re-emerged. Dr McKay provided her with counselling for this, as well as referral for two sessions at a clinic in a major hospital.

30 In about September 2006 a personal and romantic relationship developed between Dr McKay and Patient "B". At several consultations Dr McKay kissed and cuddled the patient. He provided her with his mobile telephone number and invited her to contact him for anything.

31 In April 2007, Dr McKay turned up at Patient "B's" home. Some kissing and cuddling occurred on this occasion. Within a month he was a frequent visitor at times when her children, who were then aged 10 and 12 years, stayed with their father.

32 In about May 2007, Patient "B" ceased consulting Dr McKay and she then returned to seeing her former general practitioner who had previously treated her condition.

33 Sometime shortly before August 2007, Dr McKay and Patient "B" began a sexual relationship. The relationship intensified by about October / November 2007, by which time Dr McKay moved into Patient "B's" home, where he remained between November 2007 until May 2009.

34 After November 2009, when Dr McKay left the relationship with Patient "B", he visited her occasionally and he attempted to initiate a further sexual relationship. They remained in occasional contact until about December 2009.

35 Patient "B's" current treating general practitioner wrote a letter setting out the effect of the patient's relationship with Dr McKay, as follows:

"4. In my opinion, Ms [name of Patient "B" suppressed] is a psychologically vulnerable woman who suffered significant distress as a result of the relationship. She stated that at the time of the relationship break-up she suffered a relapse of her eating disorder. During her treatment her BMI was abnormally low consistent with anorexia nervosa. She displayed symptoms of depression and she felt a significant amount of guilt about the relationship."

36 In respect of Dr McKay's treatment of Patient "B", the HCCC obtained a peer review opinion from Dr Ian Chung, a general practitioner. Dr Chung's report dated 4 October 2010, which was unchallenged, set out the following professional criticisms of Dr McKay:

(a) Dr McKay's treatment records provided insufficient detail to form a clear idea of his model for treatment of Patient "B's" anorexic condition;

(b) Dr McKay's conduct in attending the patient's house to have meals with her as part of a management plan for his anorexic patient was inappropriate, inadequate, not in keeping with any accepted guidelines for the management of that condition, and tended to foster dependence and encourage inappropriate counter-transference;

(c) Dr McKay's conduct in having a personal relationship with Patient "B" whilst continuing to provide medical treatment fell significantly below the standard expected of a general practitioner in the circumstances, and represented an inappropriate crossing of the doctor and patient boundary which was unacceptable, and this was aggravated by Dr McKay's failure to seek counselling or supervision to manage transference and counter-transference issues in the interests of the patient;

(d) The forming and pursuit of a personal relationship with a patient whilst Dr McKay was still her general practitioner was contrary to the mandatory requirements of the then applicable NSW Medical Board Code of Professional Conduct (July 2005);

(e) Dr McKay's "treatment approach" for Patient "B" lacked clarity, was confused and overshadowed by the personal relationship, and this added to the complexity of the patient's medical problem;

(f) Dr McKay's attempts to terminate the therapeutic relationship with Patient "B" after having developed a personal relationship with her, and the related failure to obtain guidance for doing so, was inadequate;

(g) Dr McKay showed a lack of insight into the issues of transference and counter-transference.

37 Dr Chung identified his strong and extreme criticism of Dr McKay's conduct and stated that the identified conduct would attract the strong and extreme disapproval of peers of good repute and equivalent training.

38 Prof Orman considered that after October 2006, Dr McKay's management of Patient "B" was significantly below that which would have been expected of a general practitioner managing the condition of anorexia nervosa. Her criticisms centred around Dr McKay's failure to investigate and record BMD results and failure to involve other specialists in the case of Patient "B". She was of the view that this failure of care caused the patient's condition to deteriorate over time. The level of criticism was strong, notwithstanding that the patient had also contributed to the situation by refusing other treatment options.

39 Prof Orman also identified the fact that when Dr McKay eventually ceased his professional relationship with Patient "B", he did so without adequate handover to another practitioner and in circumstances, which would have been likely to be interpreted by the patient as abandonment, with significant associated psychological trauma in a patient who was vulnerable. She also commented that in such circumstances, a sexual relationship between Dr McKay and Patient "B" should have been seen by Dr McKay to have been out of the question.

Dr McKay's responses to the complaints

40 For the purpose of these proceedings, Dr McKay prepared a signed statement which was undated but received by the Tribunal Registry on 1 November 2013. This was tendered in the proceedings. In that statement, as well as in his oral evidence, Dr McKay admitted all factual aspects of these complaints made against him.

41 It was plain from Dr McKay's evidence that he lacked a full insight into how he had mismanaged the issues of transference and counter-transference in his dealings with the two patients in question. That said, the tribunal is satisfied that Dr McKay gave his evidence truthfully, to the best of his recollection without any intention of concealing relevant facts. He did so in circumstances where the subject matter of his evidence caused him personal embarrassment and humiliation.

Dr McKay's personal circumstances

42 Dr McKay has been married and divorced twice. He is estranged from those families, including from the adult children of his marriages. He is not in employment at present and he is experiencing financial difficulties.

43 For a long time, Dr McKay had poorly managed his own health issues, which included depression, Type II diabetes and benign prostatic hypertrophy. He has also been taking alcohol to excess in order to relax.

44 In more recent times, Dr McKay has been under the medical care of a general practitioner, Dr Chitra Fernando, of Mt Druitt. She has been treating him for his severe anxiety and depression, which Dr Fernando identified as being related to the present disciplinary issues faced by Dr McKay.

45 Dr McKay has chosen to consult his general practitioner in Mt Druitt because they have known each other since 1998, when they were in practice together in Penrith. Dr Fernando's letter dated 5 June 2013, which was to the above effect and which was addressed to HWL Ebsworth Lawyers, Dr McKay's former solicitors, was tendered in evidence.

46 Dr McKay has been certified to be unfit to practise his profession due to his mental state. Dr McKay accepts that conclusion.

47 On 8 March 2013, at the request of his former solicitors, Dr McKay consulted Dr Michael Diamond, a consultant forensic psychiatrist. For the purposes of preparing his report in the context of these proceedings, Dr Diamond perused a range of background materials and conducted an in-depth interview with Dr McKay as part of his assessment. Dr Diamond summarised Dr McKay's physical health in the following terms:

"Physical Health

Dr McKay said he was generally fit and healthy until about fifteen years ago. He developed problems with benign prostatic hypertrophy. The condition was not fully investigated. He presented with a high PSA level but it was not properly followed up. Two years ago he underwent a biopsy.

Over the years he developed Type 2 Diabetes. He does not manage this properly. He understands the correct management but he does not carry it out. The condition was diagnosed by a general practitioner in Mt Druitt. He last saw that practitioner over six months ago. Although he went to visit her about a month before I saw him, she was not there on the day. He obtained forms for tests but he has not followed them up as yet.

With his regular interest in wine, he has always enjoyed drinking wine. He realises however that his consumption of alcohol has increased significantly. He uses alcohol to settle himself. He feels distressed and angry about the way his life has turned out and about practising medicine generally. He is now drinking eighty grams of alcohol per night regularly. He is drinking whisky rather than wine. He now also drinks port. He drinks on his own at home.

He takes medication for his diabetes, Diabex XR one tablet daily. He does not check his blood sugars. He takes Crestor 10mg per day. He takes Panadol for pain as needed on occasions. Otherwise he denied self-treating with prescription drugs. He said he did not write scripts for himself. He is a non-smoker and he has not used recreational drugs.

He recognises that his mood state is low. He feels disillusioned, lacking motivation and drive, and generally low in mood. Dr McKay said he avoided seeing his general practitioner, Dr Chitria (sic) Fernandez (sic). In the past he worked with her at the practice at Penrith. He said although he has time to see her, he stays away. He said he knew what to do about looking after his health but he procrastinated.

He felt embarrassed by what he has done and generally finds it hard to broach the subject with his general practitioner. He spoke generally of experiences in the past of seeing doctors who did not provide care for him. Instead they asked him what he wanted to be done. He said however that Dr Fernandez (sic) was not like that."

48 Dr Diamond reviewed the substantive details of the relationships that Dr McKay had conducted with Patient "A" and Patient "B". However, he was not able to fully explore those matters because of the limited material that had been provided to him for the purpose of his examination.

49 Dr Diamond summarised his assessment of Dr McKay's mental state in the following terms:

"Mental state Examination

Dr McKay arrived punctually. He engaged in the interview in a cordial fashion. He was appropriately dressed in a business shirt, trousers and wore runners. He had a serious demeanour throughout the interview. He presented himself in a self-deprecating way. He was quite cautious to engage initially but did so in the course of the two and a half hour interview.

His account was candid but not complete. He has limited psychological awareness. He spoke about what he had done without developed insight or understanding of the psychological motivations behind his conduct. He was a factual historian and was clearly not good with dates. His speech was normal in content, form and tone. He had normal thought processes.

He demonstrated restricted affect. He dealt with his predicament in a sardonic fashion at times. Otherwise his affect was flat.

His mood was pervasively depressed throughout the interview.

He displayed very limited insight into his personal behaviour and motivations. He had very simple and unformed ideas about the place of boundaries in the interactions that occurred between doctors and patients.

Although his history was clearly limited (when compared with what I read in the documentation subsequently), this arose largely because of the extent of his insightlessness as opposed to an attempt to deny what he had done.

He expressed spontaneously that he experienced his emotions privately and externally appeared to be an isolated loner. He questioned whether he wanted to be a doctor or not. He had little idea at how to deal with such a case where he would be before a Medical Tribunal. He had not thought deeply about how he might have dealt with his psychological problems over many years before they all came to a head because of his repeated forming of personal relationships with existing patients.

He knew that he had significant emotional problems for many years but he did not know how to address these in a therapeutic way.

He volunteered at the end of the interview that being interviewed in this way had taken him down a path he had never been before. He acknowledged that he had gained a great deal of understanding of what he had done in the course of being interviewed on this occasion. He volunteered that he would speak to his general practitioner and make inquiries about appropriate referral to have his psychological and psychiatric issues assessed by a clinician and treated."

50 As at March 2013, Dr Diamond considered that Dr McKay had a poorly formed understanding and insight into his inappropriate conduct which has led to these disciplinary proceedings. On the issue of whether Dr McKay was currently fit to practice at the time of writing his report, Dr Diamond stated:

"...

At this stage I do not believe that Dr McKay could practise medicine and not pose any risk to the public regardless of what conditions were placed on his registration. He has a considerable remedial effort ahead of him in order to meet a basic standard so that he could have conditions placed on his registration sufficient for him to practise safely were he to comply fully with those conditions."

51 Dr Diamond also made the following additional observations on Dr McKay's situation, and the aberrant manner of his conduct. He also set out some relevant aetiological factors that have led to the present circumstances:

"...

My final comment with regard to Dr McKay is that this is a case that demonstrates to me an individual who has largely practised outside of a collegiate environment in which his personal ignorance and psychological fallibilities could have come to notice and could have been dealt with in a remedial fashion.

Although there is evidence that he has practised competently in a caring and safe manner for a large portion of his medical career, his psychological and personal vulnerabilities have steadily come to the fore. It has meant that he has developed into an isolated, shut down practitioner who has lost contact with the required practice standards with regard to the relationships that exist between doctors and their patients.

Dr McKay is also suffering from a significant reactive depressive illness at this point. It is a matter of some importance that he is treated properly for this. In the course of that treatment he may also be able to access appropriate exploration of his personal vulnerabilities and needs that underlie the aberrant way in which has behaved."

52 Dr McKay did not have any further consultations with Dr Diamond. Instead, his general practitioner referred him to Dr Augustus Pusic, another consultant psychiatrist who practises in Penrith. Dr McKay's statement in respect of those consultations was as follows:

"8 I am committed to treatment with my psychiatrist with a view to resolving the issues that are facing me and coming to terms with the reasons I allowed myself to breach boundaries with the two patients, the subject of the current complaint.

9 I have also begun seeing a general practitioner on a regular basis Dr Chitra Fernando is assisting me with my general health issues, including managing my type 2 diabetes and is providing me with ongoing management in between my consultations with Dr Pusic. Whilst I have been reluctant in the past to seek general medical help, I have now realised its importance and benefit It is providing me with support which is greatly assisting me."

53 Earlier case management directions issued by the tribunal required Dr McKay to provide a report from Dr Pusic by 15 November 2013. Ultimately, Dr Pusic's report, which was addressed to Dr McKay's former solicitors and dated 11 November 2013, was only made available to the parties on the first day of the tribunal hearing in answer to a subpoena issued by the HCCC.

54 In that report, Dr Pusic stated:

"In regards to Dr McKay's insight into the conduct that brought him to the Tribunal I can say that at this stage he has achieved partial insight. The interview with Dr Diamond and Dr Diamond's subsequent report together with Dr McKay's attendance at a course on doctor / patient boundaries have been salutory (sic) for Dr McKay.

Dr McKay is aware that the relationship he had with two of his patients were wrong but he is yet to fully appreciate how even considering such a relationship can be harmful to the patients and to other patients in general. I think he would require further psychotherapy for him to fully elucidate and appreciate how his personal vulnerabilities and outlook in life lead him to the view that entering a sexual relationship with his patients can at any time ever be considered as a natural and acceptable progression of the doctor / patient relationship.

I would wish to continue seeing Dr McKay for a further six months on a fortnightly basis. I can then provide you with a report commenting as to whether Dr McKay is currently a fit and proper person to hold registration as a doctor and practice in accordance with appropriate ethical and professional standards."

Findings

55 Dr McKay has fully conceded that the subject matter of the present complaints made against him have been substantiated and are justified. Although he has conceded he had thereby engaged in both unsatisfactory professional conduct and professional misconduct as alleged, the tribunal is nevertheless required to make its own assessment of the matters complained of, in order to make and record appropriate findings.

56 Having assessed the two folders of materials, comprising Exhibit "A", the tribunal is satisfied that those concessions of unsatisfactory professional conduct and professional misconduct were appropriately made by Dr McKay.

57 Accordingly, the tribunal finds that each of the complaints of unsatisfactory professional conduct and professional misconduct as respectively defined by s 139B and s 139E of the National Law (NSW) have been proven to the required standard: Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336.

58 As a result of those conclusions reached by the tribunal, by the agreement of the parties, and since Dr McKay is not presently a registered medical practitioner, it therefore became unnecessary to proceed to a two-staged hearing of the proceedings: King v Health Care Complaints Commission [2011] NSWCA 353.

Considerations for Protective Orders

59 Dr McKay has demonstrated over a significant span of time that he has lacked relevant insight into the requirement that as a medical practitioner, he must observe proper personal and sexual boundaries between himself and his patients.

60 Furthermore, between 2002 and 2004, when Dr McKay had the scarifying experience of having to respond to allegations of professional and sexual impropriety towards Patient "A", during which time he was liable to face disciplinary proceedings of this nature, that experience seemed to have little, if any, remedial effect upon his thinking and actions.

61 After Dr McKay was told that the complaint involving Patient "A" was to be terminated without further action being taken against him, he did not adequately take stock of his situation. He did not implement any steps in his practice to guard against the prospect of a similar situation recurring. He did not seek guidance on such matters from any colleagues or mentors. He put no safeguards in place in his practice aimed at recurrences of such problems.

62 Instead, over the course of his professional contact with Patient "B", Dr McKay failed to observe the personal and professional boundary he should have observed in his dealings with her. He failed to understand, recognise and appropriately react to the dynamics of transference and counter-transference that had evolved within the doctor and patient relationship he had with Patient "B".

63 Instead of recognising that those boundaries were becoming blurred and confused, which should have alerted him to the fact that he had a professional problem that needed to be properly dealt with, he allowed the relationship to deleteriously develop and intensify, which was to the detriment of Patient "B", and to himself.

64 Even as the hearing of the present proceedings approached, Dr McKay demonstrated little insight into the problem, as Dr Diamond has observed in March 2013. Furthermore, even as late as November 2013, as was observed by Dr Pusic, Dr McKay has only gained a partial insight into his professional shortcomings regarding the need to observe proper doctor and patient boundaries. The tribunal is satisfied that Dr McKay's lack of insight into these matters represents a degree of professional impairment on his part.

65 This is in circumstances where the medical profession has been on notice for many years that such boundary violations are unacceptable and must be seen as amounting to professional misconduct whenever they occur: Exhibit "A", Tabs 30, 40, 41, 69.

66 In such circumstances, the Medical Tribunal is required to protect the public interest where instances of such conduct are brought to light. In that regard, it is required to fulfil the dual function of sending a strong deterrent message to medical practitioners that such conduct cannot be condoned. Such deterrence operates as a protection and reassurance to the public that professional standards must be observed, and where breaches are brought to light, they are to be made the subject of appropriate criticism where the practitioner is at fault.

67 Against the factual background of this case, fairly so, Dr McKay acknowledges that at present he is unfit to practise his profession.

68 On behalf of the HCCC it was submitted that in the future, should Dr McKay decide to apply for re-registration, there must be a suitable period of preclusion for such an application. A period of 3 years was suggested as being the appropriate period of preclusion.

69 The tribunal accepts the submission made by the HCCC because the evidence does not suggest that Dr McKay is likely to overcome his problem of lack of insight in the short term. He faces a significant period of psychotherapy and related treatment, as has been foreshadowed by Dr Diamond and Dr Pusic. Dr McKay did not strenuously argue against that proposition and offered no defined counter-proposal.

70 The tribunal is therefore satisfied that the appropriate protective order should be that Dr McKay be subject to a 3-year preclusion from any application for registration as a medical practitioner: s 149C(4) of the National Law (NSW).

71 If Dr McKay was still registered as a medical practitioner the tribunal would have cancelled his registration for a similar period of 3 years: s 149C(4)(b) of the National Law (NSW).

72 It follows that if Dr McKay was still a registered medical practitioner, the findings of the tribunal would have required that his registration as a medical practitioner be cancelled. The circumstances would also have called for a reprimand.

73 The tribunal is conscious of the fact that in Dr McKay's present circumstances, the prohibition on him practising his profession for 3 years, represents a significant financial detriment which could be seen to also operate as a significant financial penalty. That is not the intended effect of the tribunal's order, although it may arise as an unintended consequence. That said, the tribunal has no other option when it comes to its consideration of how the public is best protected in the circumstances. In that regard, the practitioner's interests must be seen to be secondary to the public interest.

74 The HCCC argued that Dr McKay should pay the complainant's costs of these proceedings. Dr McKay sought to resist an order for costs as it would in effect represent a penalty. Whilst that may be so, the HCCC was obliged by its public duty to bring these proceedings. In doing so it incurred costs which, having due regard to the evidence and the outcome of the proceedings, should be paid by Dr McKay as is the usual order made in the ordinary course of such cases.

Protective Orders

75 The Tribunal makes the following orders:

(1) Dr McKay is prohibited from applying to the Medical Council for re-registration as a medical practitioner for a period of 3 years from 17 December 2013;

(2) Dr McKay is ordered to pay the HCCC's costs of the proceedings;

(3) The exhibits may be returned to the parties.

 

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Decision last updated: 20 May 2020