Health Care Complaints Commission v Nikolova-Trask1

Background

Disciplinary proceedings were brought by the Health Care Complaints Commission (HCCC) under the Health Practitioner Regulation National Law (NSW) alleging unsatisfactory professional conduct and professional misconduct against a medical practitioner in relation to relationships with three of her patients.

As well as issues concerning the appropriateness of these relationships, the New South Wales Civil and Administrative Tribunal (Tribunal) considered the appropriateness of the use of social media by the medical practitioner in the course of their practice.

Alleged transgressions

The HCCC alleged that the practitioner commenced a personal relationship with Patient A in April 2010 which thereafter developed into a sexual relationship. The practitioner had commenced a personal and social relationship with Patient A’s then wife, also a patient, in 2009 (Patient B). The practitioner remained in contact with Patient B via telephone and Facebook, including communications concerning medical matters involving Patient A’s step-daughter (Patient C).

It was further alleged that the practitioner failed to observe proper professional boundaries with another patient (Patient D), including discussing with him the possibility of them having a sexual relationship.

Decision

Patient A

On the day that Patient A travelled to the Gold Coast to advise Patient B that their marriage was ending, telephone call records indicated that he had lengthy telephone calls with the practitioner.

The Tribunal inferred that by this point, the practitioner’s relationship with Patient A had become a very close dependent one and it was satisfied that by this time, the practitioner’s relationship with Patient A had “crossed the line” and that her ongoing treatment of Patient A was below the standard expected of a practitioner of equivalent experience.

The Tribunal found that the Practitioner failed to maintain proper professional boundaries with Patient A and that her behaviour constituted both unsatisfactory professional conduct and professional misconduct.

Patient B and Patient C

The evidence failed to confirm whether the practitioner was treating Patient B and Patient C once the relationship with Patient A began. There was however ongoing contact with Patient B and in that regard the Tribunal said:

...the practitioner’s conduct in concealing from her long-time friend Patient B… her relationship with Patient A, may be considered by some as reprehensible, but we are not satisfied it constituted unsatisfactory professional conduct, or professional misconduct. …. the conduct may have been morally wrong, but it is not the Tribunal’s function in this matter to determine moral issues.

Patient D

The Tribunal found that the practitioner engaged in improper conduct in continuing to treat Patient D in 2009 whilst she maintained an intimate personal relationship with him (where personal, emotional and financial matters were regularly discussed) even if that relationship was not sexual.

The Tribunal accepted that the relevant matters, considered collectively, constituted a significant departure from accepted standards and as such constituted unsatisfactory professional conduct.

Communication via social media

In relation to text messaging and the use of Facebook by medical professionals to communicate with their patients, the Tribunal noted the lack of any policy of the Medical Board of Australia or the Medical Council of NSW to guide doctors about appropriate social media use.

It recommended that the relevant professional Councils provide guidelines for health professionals in this area. It cautioned that whilst the use of text messaging and the internet to make and confirm medical appointments is widespread and has practical benefits, information conveyed via text messages and social media can easily be corrupted or misused. Thus, care must be taken to ensure patient confidentiality is preserved.

Further, the Tribunal recommended that any electronic communication that involves disclosure of confidential medical information should be subject to a patient’s informed consent.

Penalties

The Tribunal ultimately found the HCCC’s complaints of unsatisfactory professional conduct and professional misconduct proven and ordered that the practitioner’s registration be suspended for 3 months, and upon expiration of suspension, that she not practise as a sole practitioner for 3 years, and should complete a medical ethics course, and have a professional mentor for at least 18 months.