Health Care Complaints Commission v Nikolova-Trask [2014] NSWCATOD 149 is a decision of interest as it addresses not only a sexual relationship with a patient A, but:

  • whether the practitioner was also guilty of unsatisfactory professional conduct or professional misconduct in circumstances where she was treating the patient’s wife and step-daughter while in a close personal relationship with him; and
  • consideration of the practitioner’s use of social media and whether it was appropriate to provide medical results and advice via Facebook.

Relationship with patient

The practitioner made some concessions about boundary violations with the patient. The practitioner and Patient A subsequently formed a de facto relationship and had a daughter aged 2.5 years at the date of the hearing: [6].

Treating the wife and step-daughter of that patient

The evidence did not confirm that the doctor was treating the wife and step-daughter once the relationship with patient A began. There was however ongoing contact with the wife B and in that regard the tribunal said at [160]:

..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

Social media for delivery of medical results and advice

On the social media topic, the tribunal alluded to a distinction between making appointments via social media and the provision of results and advice, saying at [174]:

The use of text messaging and the internet to make and confirm appointments, including medical appointments, is widespread and has practical benefits. But as the facts in this case demonstrate, a professional, including particularly, a medical practitioner, should observe in their communications appropriate care. The requisite care must ensure patient confidentiality is preserved. In this regard it is important professionals bear in mind information conveyed by text messages and social media can easily be corrupted or misused. The Tribunal sees a very real need for the Board and/or the Council, and other Health Professional Boards and Councils to provide guidelines for health professionals in this area. The Tribunal discerns any policy implemented by a practitioner that involves disclosure of confidential medical information via email, or social media should be subject of a patient’s informed consent.