Most GPs experience infrequent offers of gifts from their patients over the course of their career. Occasional gifts of wine, home-cooked cakes, chocolates and flowers are commonplace in most GP clinics. However, some patients have a tendency to give gifts more frequently, or of greater commercial value, than others. This starts to pose difficult questions for practitioners as to what is considered acceptable gift accepting behaviour, and how to determine when the receipt of gifts becomes improper or unethical. Meridian Lawyers was recently involved in a NSW Professional Standards Committee (PSC) which considered this very question, and provided valuable insights for GPs navigating the issue of gift giving going forward.
The GP in question practised medicine in partnership with his wife who was also a GP. He had a long standing clinical relationship with the patient, having seen him fortnightly over a period of approximately 10 years. The patient had also seen the GP’s wife as a patient, from time to time. The patient died in 2015. The patient’s granddaughter, who was his appointed enduring guardian, believed that the GP did not observe appropriate professional boundaries with the patient. In particular, she complained that he had improperly accepted gifts from the patient over a period of time, including frequent gifts of wine, a $200 voucher to dine at a local restaurant, and an envelope containing $1,000 in cash.
The GP acknowledged receiving infrequent bottles of wine from the patient, but not on a regular basis – perhaps every two or three months. He acknowledged that on each occasion he usually received up to three bottles of white wine for his wife, and up to three bottles of red for himself. He also admitted having received a $200 meal voucher, but said it was for both him and his wife in recognition of their respective birthdays and also for their professional assistance to the patient and the patient’s wife. The GP also admitted that the patient had once offered him money in an envelope, but he denied having accepted it. At the PSC hearing, the Health Care Complaints Commission (the Commission) argued that while some level of gift giving would not breach the National Law, the gifts of wine and the voucher were too much, too often. It is important to note that the Committee was not required to determine whether the receipt of money would amount to unsatisfactory professional conduct, because both the Commission and the GP conceded that it would (although the GP denied having accepted the cash gift in any event). The PSC accepted the GP’s evidence as to the frequency of the bottles of wine gifted to him, together with his evidence regarding the meal voucher and his refusal of the $1,000 cash gift. It acknowledged the difficulties in identifying when the receipt of gifts becomes improper or unethical. Good Medical Practice: A code of conduct for doctors in Australia (published by the Medical Board of Australia) (Good Medical Practice) is limited in its guidance on the matter, stating simply:
Doctors must be honest and transparent in financial arrangements with patients. Good medical practice involves:
8.12.2 Not encouraging patients to give, lend or bequeath money or gifts that will benefit you directly or indirectly. [note]Good Medical Practice: A code of conduct for doctors in Australia dated March 2014, published by the Medical Board of Australia[/note]
According to the words of that provision, and because most gifts have some benefit attached to them, the prohibition can be interpreted as being against encouraging patients to give gifts. However the PSC was not satisfied that, absent encouragement, the receipt of a gift will not transgress the principles set out in Good Medical Practice. Rather, practitioners must assess the conduct by reflecting on the patient’s desire to offer a gift, discuss the matter with peers and most importantly, talk to the patient and emphasise that medical treatment will be just as good whether gifts are given or not: [note]Wood, Richard  NSWMPSC 1 (18 January 2018), paragraph 47.[/note]
“What is important is whether the practitioner has given consideration to how it is that the giving and receiving of gifts affects the patient and the relationship. It is not enough for practitioners to simply satisfy themselves that a gift was not encouraged.” [note]Ibid, paragraph 50.[/note]
The PSC agreed with several factors suggested by the Commission in submissions, which may help practitioners determine whether the receipt of a gift is unethical or improper:
- The monetary value of the gift / the nature of the gift
- Whether it was given during current treatment
- The frequency of the gift giving / over what period of time did the gift giving occur
- The novelty of the gift / whether the gift was personal or generic / does the gift reflect a preference of the practitioner
- Is the gift given directly or impersonally
- In what context is the gift given
- Is there another relationship present
- The motivation for the giving of the gift
- Is the gift open or secret
- Any vulnerability of the patient
- Disclosure of information by the practitioner that ‘fashions’ the gift
- Steps taken to discourage the giving or attempts to return the gift [note]Ibid, paragraph 51.[/note]
On the facts and evidence before it, the PSC did not believe there was any evidence that the GP had encouraged the gifts which were given by the patient, except as may have been implied through the acceptance of them, although it commented that it may have been preferable for him to have had an explicit conversation about the gifts and to emphasise that there was no need for them.[note]Ibid, paragraph 52.[/note]
However, it accepted that the GP had a system for dealing with gifts from patients including that he would thank the patient and say that the gift was not expected. Further, the evidence revealed the patient to be a proud and independent person who enjoyed giving gifts (to many people, not just the GP) and that it was part of his character. There was no exploitation of the relationship and the gifts were of minimal value. Although it may have been opportune for the GP to have had a more detailed conversation about gift-giving with the patient when he offered the cash gift, failing to do so did not amount to unsatisfactory professional conduct. All allegations of impropriety were therefore dismissed.
This case provides much needed guidance to practitioners who may be faced with similar circumstances in their everyday practice. The key take away is the need for active reflection by the GP both independently and with his or her peers about the appropriateness of accepting the gifts. This ought to be accompanied by an express conversation with the patient about why he or she feels the need to provide a gift and to emphasise that there is no need for gifts and that the medical care received by the patient will be just as good, even without a gift.
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This article was written by Principal Nevena Brown and Associate Anna Martin, please contact Nevena on (02) 9018 9933 if you would like to discuss any aspect of it further.