HCCC v Herron - Medical Council of New South Wales

MEDICAL TRIBUNAL OF NSW
REASONS
Deputy Chairperson:
Judge A. Balla
Members:
Mr Kelly
Dr S Gani
Dr S Toli
Matter no:
40013 of 2012
Complainant:
Health Care Complaints
Commission
Respondent:
Dr Guy Herron
Counsel for the
Complainant:
Ms Brus
Respondent:
Mr M Lynch
Date:
1 March 2013
PURSUANT TO CLAUSE 7 OF SCHEDULE 5D OF THE HEALTH PRACTITIONER
REGULATION NATIONAL LAW (NSW) THE TRIBUNAL HAS MADE A NON PUBLICATION
ORDER IN RESPECT OF THE NAME OF ANY PATIENT OR ANY MATERIAL WHICH MAY
IDENTIFY ANY PATIENT
Dr Herron is a general practitioner.
The Complaint relates to a family who attended at his practice - Mr A (the husband), Ms A (the
wife) and Patients B and C (the children).
The Health Care Complaints Commission says that Dr Herron is guilty of unsatisfactory
professional conduct and professional misconduct because he:
Inappropriately commenced a personal and sexual relationship with Ms A.
Inappropriately continued to provide care to Ms A as her general practitioner while they
were having that relationship.
Did not refer Ms A to another general practitioner immediately or shortly after they
commenced that relationship.
Inappropriately had a financial/business relationship with Ms A at the same time as their
doctor-patient and sexual relationships.
Inappropriately continued to provide care to Mr A as his general practitioner while
having a personal and sexual relationship with Ms A.
Did not refer Mr A to another general practitioner immediately or shortly after he
commenced a personal and sexual relationship with Ms A.
During a consultation inappropriately discussed with Mr A matters concerning Mr A’s
marriage when Dr Herron was involved in a personal and sexual relationship with Ms A.
Referred Mr A to counselling for marital problems in 2006. Although Mr A requested the
referral, Dr Herron:
a) made the referral, at least in part, for his own personal reasons.
b) did not disclose those personal reasons to Mr A.
Inappropriately continued to provide care to the children as their general practitioner
while having a personal and sexual relationship with Ms A.
Did not refer the children to another general practitioner immediately or shortly after he
commenced a personal and sexual relationship with Ms A.
The Health Care Complaints Commission says that Dr Herron is also guilty of unsatisfactory
professional conduct and professional misconduct because:
He did not keep a proper record when he referred Mr A to the counsellor.
His medical records for the whole family were generally deficient as he failed to
adequately record:
a) the medical history, examinations and assessments
b) the issues raised or discussed during consultations
c) the nature of, and reasons for, referrals
d) his plans for follow up and review.
Dr Herron admits all of the particulars of the Complaint.
History
Dr Herron is 55 years of age. He graduated as a doctor in 1986 and has worked as a general
practitioner in private practice since 1991.
The Complaint
Relationship between Ms A and Dr Herron
In 1991 Dr Herron set up the Spring Street Medical Practice at Bondi Junction.
Mr A first consulted Dr Herron in 1995. At that time Mr A was not married. Three years later Mr A
introduced Dr Herron to Ms A as they all went to the same gym. Dr Herron then became Ms A’s
general practitioner.
Mr A and Ms A married in 2000 and from that time the three of them became friends. They
frequently met at the gym and also met socially two or three times a year.
In 2001 Mr and Ms A had their first child a son (Patient B). In 2003 they had their second child, a
girl (Patient C). Both children were patients of Dr Herron from birth. Dr Herron and Mr and Ms A
continued to socialise although less frequently.
In 2005 Dr Herron noticed that the relationship between Mr and Ms A had significantly deteriorated.
At the time he felt socially isolated and he now acknowledges that he then crossed a boundary by
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discussing his personal problems with Ms A. They went shopping together and Ms A, with a male
companion, attended a party hosted by Dr Herron and his then girlfriend. At the time Mr A’s job
required him to travel frequently.
Dr Herron continued to see Mr and Ms A both as patients and socially. He formed the view that the
marriage had broken down although they were still living together in the same house. By early
2006 he knew that in late 2005 Mr and Ms A had told Ms A’s family that their marriage was over.
In April 2006 Dr Herron invited Ms A to join a group attending a concert. On that evening after the
concert their sexual relationship commenced and is still continuing although they do not live
together.
Dr Herron said that over the following months Mr and Ms A’s relationship deteriorated even further.
His relationship with Ms A continued and they saw each other regularly as Mr A spent a lot of time
overseas. They hid the relationship from others including the children.
On 14 July 2006 Mr A consulted Dr Herron and asked to be referred for marriage guidance
counselling. He told Dr Herron that he wanted Ms A to snap out or wanting to leave the marriage.
Dr Herron provided the referral. He said that at the time he had hoped that counselling might help
Mr A realise that his marriage was over.
In 2006 Dr Herron closed the Spring Street Practice and moved to BMI Medical Centre.
Mr A moved out the matrimonial home in around November 2007 and did not consult Dr Herron
after March 2008 after he found out about Ms A’s relationship with Dr Herron.
In 2008 Dr Herron moved to the Bondi Junction Medical Practice where he still works.
Mr and Ms A divorced in 2010. Mr A remarried in October 2010. In December 2010 Dr Herron and
Ms A told the children about their relationship. On 6 January 2011 Mr A complained to the Medical
Council of NSW, which referred the complaint to the Health Care Complaints Commission. After Dr
Herron was told about the complaint, Ms A and the children started to consult doctors other than Dr
Herron.
Payments to Ms A
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In 1993 Dr Herron established a business which he conducted through a company and which
provided vaccinations for the staff of local businesses and Councils. From 2008 that business
employed Ms A to promote and market the vaccination services. Her company invoiced his
company. After expenses they divided the profits equally. Ms A ceased her involvement in the
business in 2011 when the Complaint was made to the Health Care Complaints Commission. Dr
Herron paid:
(i)
$28,566 in 2008.
(ii)
$21764 in 2009.
(iii)
$3000 in 2010.
Records
The Health Care Complaints Commission retained Dr Mann to comment on Dr Herrons notes. She
concluded that the bundle of notes that she received were very scant with virtually no information
in any of the patient history notes. They were significantly below the expected standard.
MrA
Mr A believes that the sexual relationship caused the breakdown of his marriage.
However Mr A also acknowledges that their relationship started to break down after they consulted
Dr Herron in relation to a significant medical issue in 2005. He believes that Ms A acted on Dr
Herron’s advice.
Unsatisfactory professional conduct
Section 1 39B(1) of the National Law defines "unsatisfactory professional conduct" as including:
(a) Conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised,
by the practitioner in the practice of the practitioner’s profession is significantly below the
standard reasonably expected of a practitioner of an equivalent level of training or
experience.
(b) A contravention by the practitioner (whether by act or omission) of a provision of this Law, or
the regulations under this Law or under the NSW regulations, whether or not the practitioner
has been prosecuted for or convicted of an offence in respect of the contravention.
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(1) Any other improper or unethical conduct relating to the practice or purported practice of the
practitioner’s profession
Dr Herron concedes that he is guilty of unsatisfactory professional conduct.
Dr Herron was in a personal relationship with a married patient which developed into a sexual
relationship. He knew that Ms A was having difficulties with her relationship with her husband, Mr
A. She was in an emotionally vulnerable position. Dr Herron deliberately hid their relationship from
Mr A knowing that he was concerned about the breakdown of his marriage. Dr Herron nevertheless
not only continued the sexual relationship with Ms A but also continued to treat her husband. That
continued for around eighteen months. After Mr A found out about the affair, Dr Herron continued
both the doctor-patient relationship and the sexual relationship with Ms A for another three years.
They also started a business relationship. In addition he continued to treat the children over that
time and kept very poor records of their consultations and treatment.
The Tribunal finds that Dr Herron’s conduct demonstrates that his judgment was significantly below
the standard reasonably expected of a practitioner of an equivalent level of training or experience,
contravened Medical Practice Regulation 2003 (NSW) (repealed), Medical Practice Regulation
2008 (NSW) (repealed) and Health Practitioner Regulation (New South Wales) Regulation 2010
and was improper and unethical conduct relating to the practice of medicine.
The Tribunal finds Dr Herron guilty of unsatisfactory professional conduct.
Professional misconduct
Professional misconduct is defined in 139E of the National Law as:
(a)unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or
cancellation of the practitioner’s registration; or
(b) more than one instance of unsatisfactory professional conduct that, when the instances are
considered together, amount to conduct of a sufficiently serious nature to justify suspension
or cancellation of the practitioner’s registration.
Dr Herron concedes that he is guilty of professional misconduct.
The Tribunal finds that Dr Herron’s unsatisfactory professional conduct was of a sufficiently serious
nature to justify suspension or cancellation of his registration and finds him guilty of professional
misconduct.
Protective Orders
As all of the particulars of the Complaint had been admitted, the parties agreed that there was no
need for and there was no application for, an adjournment before the Tribunal proceeded to make
Orders.
In formulating the Orders the Tribunal is exercising a protective, not a punitive jurisdiction.
Section 149A provides that the Tribunal may do any one or more of the following:
(a) caution or reprimand the doctor;
(b) impose the conditions it considers appropriate on the doctor’s registration;
(c) order the doctor to seek and undergo medical or psychiatric treatment or counselling;
(d) order the doctor to complete an educational course specified by the Tribunal;
(e) order the doctor to report on his practice at the times, in the way and to the persons
specified by the Tribunal;
(f)
order the doctor to seek and take advice, in relation to the management of his practice,
from persons specified by the Tribunal.
Section 149B provides that the Tribunal may impose a fine.
As the Tribunal has found Or Herron to have been guilty of professional misconduct the Tribunal
may suspend his registration for a specified period or cancel his registration (section 149C).
The fact that Dr Herron’s conduct was sufficiently serious to justify suspension or removal from the
Register does not mean that his name must be removed. The legislation makes it clear that the lull
range of disciplinary powers is available to this Tribunal on a finding of professional misconduct.
The discretion of the Tribunal is at large and will depend upon the circumstances of the individual
case.
Section SA of the National Law provides that the protection of the health and safety of the public
must be the paramount consideration.
The purpose of disciplinary proceedings is to maintain proper ethical and professional standards in
the protection of the community and also to protect the good standing and reputation of the
profession and not to punish the practitioner. The public and professional colleagues must have
confidence that a medical practitioner will properly and safely perform in his profession. The object
of protecting the public includes deterring the practitioner from repeating his misconduct and
deterring others who might be tempted to behave in a similar way.
The authorities also establish that before a medical practitioner is deregistered or exposed to the
sanction of their livelihood being taken away, albeit, for a protective purpose, this Tribunal needs to
find that the practitioner is probably permanently unfit to practice.
Or Herron gave evidence. In determining the appropriate protective Orders, the Tribunal has taken
into account the following:
(a) Dr Herron has admitted the conduct since he was first approached by the Health Care
Complaints Commission in February 2011.
(b) There are matters which do raise an issue as to the reliability of the evidence of Or Herron.
He concedes that on two occasions he initially deliberately falsely stated that the
relationship with Ms A started in 2007 or 2008. Dr Herron also admits that while he was
working as a resident medical officer at a hospital in about 1990 over a period of around 12
months he sell-injected pethidine which he initially sourced from doctor’s bag supplies and
later from prescriptions that he wrote for fictitious patients. After the prescribing came to
the attention of the Pharmaceutical Services Branch, Or Herron relinquished his right to
prescribe Schedule 8 drugs.
However, after having heard from Dr Herron who was cross examined, the Tribunal
accepts that he did his best to honestly describe what he perceived as having occurred
and why he believes it could not occur again.
(c) In relation to his relationship with Ms A, Dr Herron says that it was the profound
embarrassment of having used narcotics that caused him to move into solo practice in
1991. He was then professionally and socially isolated, ashamed, emotionally unattended,
depressed, stressed and working a sixty hour week and vulnerable to committing the
boundary violation which occurred with Ms A. He said he knew at the time that it was
totally inappropriate for a doctor to have a sexual relationship with a patient but justified it
to himself by saying that the marriage was unsalvageable.
INA
(d) In relation to his failure to refer Ms A to another doctor earlier, Dr Herron said he had
discussed it with Ms A many times but she was working full-time, the two children were
quite sick and he was able to fit her in at times that suited her.
(e) In relation to Dr Herron’s continuing to treat the children, both children had health and
behavioural issues. Dr Herron acknowledged that some of their behavioural problems
related to the breakdown of the marriage. He had been their general practitioner since birth
and he initially felt that continuity of care would be important for them and had not thought
there was a conflict of interest in continuing to treat them. He later realised there was a
conflict of interest and that it was very difficult for Mr A to accept that he was treating his
children and having a relationship with Ms A.
(I) In relation to the effect of his conduct on Mr A, Dr Herron said that when his relationship
with Ms A started he had been Mr A’s doctor for 10 years. He had continued to treat Mr A
because he considered that he was in a very difficult situation - he could not tell Mr A that
he could no longer treat him because he did not want to tell Mr A about his relationship
with Ms A. He was hoping that Mr A would remarry after which he would tell him. He
concedes that he played a significant role in the breakdown of the marriage because his
involvement prevented a natural resolution of their marriage. He now accepts that he
breached his duty of care to Mr A and that his conduct was totally inappropriate.
(g) In relation to his business relationship with Ms A 1 Dr Herron accepts that it is wrong for a
doctor to have financial relationships with a patient because a doctor is in a position of
power as compared to the patient and this imbalance is not a sound starting point for a
business relationship.
(h) In relation to his record keeping, Dr Herron acknowledges that his medical records at that
time were deficient. He says that this was due to computer software issues. He received
advice from his insurer’s risk management department which reviewed his practices. He
has implemented their advice to ensure his records comply with the applicable regulations.
(i)
Dr Herron has expressed his remorse for his conduct. He has sincerely apologised for the
distress and concern that his actions have caused Mr A. He understands that his conduct
caused damage to Ms A, her family, the medical profession, the community and himself
and his family. He respects the role of the Health Care Complaints Commission and the
Medical Council of NSW in ensuring that all medical practitioners conduct themselves in
accordance with high standards. He accepts that he failed to meet those standards. He
recognises that his actions were inappropriate and accepts responsibility for his actions.
(j)
Or Herron also said and the Tribunal accepts that he has gained insight from his sessions
with Dr Diamond, a psychiatrist whom he has been attending since February 2012 initially
monthly and now fortnightly. He has described it as a powerfully reflective experience. He
now understands that he had a long standing psychological pattern of social isolation and
the lack of community which made him vulnerable to engaging in this type of conduct. He
has learned from Or Diamond that behaviour does not exist on its own but is due to a
pattern of behaviour. Dr Diamond had helped him to understand how a general practitioner
should behave. He acknowledges that as a medical practitioner he was in a position of
power and that trust and confidence are of the utmost importance in a doctor/patient
relationship. He knows that his actions constituted an abuse of this power and that he
undermined the trust and confidence that formed the basis for the doctor/patient
relationships had with the members of the family.
(k) Dr Diamond is of the view that the evolution of Dr Herrons relationship with Ms A was
consistent with his need for status and admiration, which had been longstanding from his
early years. As Dr Herron’s engagement in psychotherapy had intensified he had
demonstrated a deepening of his understanding of his conduct and developed further
insight into his motivations, drives, personal vulnerabilities and rallibilities. Dr Diamond
considered that Or Herron had put effort into the sessions and brought his insights and
thoughts into subsequent sessions. Or Diamond was of the opinion that Dr Herron is not at
any real risk of developing a similar relationship with a patient in the future.
(I) Dr Herron has taken steps to address the issue of professional isolation. He is working at
the Bondi Junction Medical Practice with five other doctors all of 20 years or more
experience as general practitioners. He has a lot of respect for the other practitioners and
attends monthly practice meetings. The management of the practice is aware of these
proceedings. One year ago Or Herron became a Fellow of the College of General
Practitioners. He joined the College to increase his interaction with other general
practitioners.
(m) The Tribunal has been provided with a number of references testifying as to Dr Herron’s
professional skills and exemplary character.
Iv.]
(n) Dr Herron has recently completed the Monash University’s Short Certificate Course in
Medical Ethics.
(o) While the circumstances leading to the loss of Dr Herron’s prescribing rights raise issues
as to his judgment, the Tribunal has given them little weight as they occurred many years
ago and are of no direct relevance to the type of conduct now being considered.
The maintenance of boundaries between patient and doctor is a long and well established principle
of medical practice. The breach of trust involved must be viewed as a particularly serious activity.
In this case the conduct was rendered more serious by Dr Herron, over a lengthy period,
deliberately failing to tell another patient, Mr A, about his relationship with Ms A.
As Dr Herron has acknowledged, a doctor is in a position of power. The guiding principle of
professional boundaries is that there be no exploitation of a patient or abuse of the doctor’s
position. Breaches of a doctor/patient relationship can cause psychological damage to a patient
and the patient’s family. The community expects that personal boundaries will be maintained by a
doctor so that patients and their families are not at risk. The profession is entitled to expect a
doctor to conduct himself so as to not damage the public perception of the profession.
However the Complaint was made to the Health Care Complaints Commission more than two
years ago. Over those two years Dr Herron has been diligent in addressing the issues which gave
rise to all of the conduct which is the subject of the Complaint. The whole of the evidence
demonstrates genuine insight into and contrition for his wrongdoing and the taking of positive steps
to address the issues which allowed the conduct to occur. Accordingly the Tribunal is satisfied that
Dr Herron is not presently probably permanently unfit to practice. In addition the Tribunal is
satisfied that the health and safety of the public would be protected by Dr Herron being
reprimanded and conditions placed on his registration requiring ongoing psychiatric treatment,
mentoring and working in a group practice. These conditions would enable his therapy to continue
until his treating psychiatrist considers that it is no longer necessary and allow for working
conditions which would protect against the professional isolation which led to these proceedings.
The conditions are informed by but not identical to the suggested conditions provided to the
Tribunal by counsel for the parties. Firstly the requirement to work in a group practice and have his
place of practice approved by the Council will remain in place until Dr Herron successfully applies
to the Council to have the conditions changed. Secondly the Tribunal is of the view that the
appointment of a mentor for six months is insufficient and that the mentor should be a medical
practitioner specialising in general practice.
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Costs
Both parties agreed and the Tribunal finds that the appropriate Order is for Dr Herron to pay the
costs of the Health Care Complaints Commission.
Orders
1. Dr Herron Is reprimanded.
2. Or Herron is subject to conditions on his registration as set out below.
PRACTICE CONDITIONS
(1)Dr Herron is to advise the Medical Council of NSW (the Council) prior to changing his
place of practice.
(2)Dr Herron is not to undertake solo general practice work. He will work in a group practice
with at least two other doctors.
(3)Within 21 days Dr Herron is to provide for approval by the Council the name and
professional address of a registered medical practitioner specialising in general practice
who has agreed to act as his professional mentor. The nature and frequency of contact
with the mentor is to be determined by the mentor in accordance with the Council’s
Guidelines for Mentors. The mentor is to be provided with a copy of the Guidelines and a
copy of the Medical Tribunal Decision upon which these conditions are based and these
Orders.
(4)Dr Herron is to ensure that:
(a) He and the mentor meet on a monthly basis for at least one hour, the first meeting
to occur within one fortnight of being advised that his nominated mentor has been
approved.
(b) He is to authorise the mentor to report, in an approved format, to the Council every
two months about the fact of contact, and to inform the Council if there is any
concern about his professional conduct, health or personal wellbeing.
(c) He is to authorise the mentor to notify the Council of any failure to attend,
termination of the mentoring relationship against the advice of the mentor, or any
other matter the mentor considers appropriate.
(d) He will meet with the mentor for a period of at least eighteen months from the date
of the first consultation following the decision and thereafter for such period as the
Council may determine.
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(e) In the event that the approved mentor is no longer willing or able to continue as
mentor, he is to nominate another mentor for approval by the Council within 28
days of the cessation of the original mentor relationship.
(f) He is to be responsible for any costs associated with the mentoring process
(g) The meetings should include discussion of Dr Herron’s personal and professional
development as a registered medical practitioner and personal issues as they arise
and initially the issues highlighted in the Complaint.
(5)Dr Herron must maintain the membership of the RACGP in order to participate in the
Continuing Professional Development (CPD) processes
HEALTH CONDITIONS
(6)Dr Herron is to continue to attend for treatment by a psychiatrist of his choice, at a
frequency to be determined by the treating psychiatrist and for as long as the treating
psychiatrist considers appropriate. Dr Herron is to notify the Council of the name of his
treating psychiatrist within 2 weeks and is to authorise the treating psychiatrist to inform
the Council of failure to attend for treatment, termination of treatment or if there is a
significant change in health status.
3. The Medical Council is authorized as the appropriate review body for any review of Conditions
(2), (3) and (4).
4. If Dr Herron resides outside of NSW Section 125 and Section 127 of the National Law applies
so any review of the Conditions (2), (3) and (4) can be conducted by the Medical Board of
Australia.
5. Dr Herron to pay the costs of the Health Care Complaints Commission.
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