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- Unreported Judgment
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Health Ombudsman v Bricknell  QCAT 340
cara jane bricknell
Occupational regulation matters
18 October 2019 (ex tempore) and further order and reasons on 15 November 2019
18 October 2019
Allen QC DCJ, Deputy President
Mr S Brimstone
Ms C Elliott
Dr N French
PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – PSYCHOLOGISTS – where the applicant instituted disciplinary proceedings against the respondent – where the conduct the subject of the referral involved the respondent commencing a personal relationship with a patient – where the respondent neither ceased the treating relationship nor referred the patient to another practitioner after the commencement of the personal relationship – where the respondent and the patient married and had two children – where the relationship subsequently ended – where the respondent initially denied the existence of a treating relationship – where the respondent eventually admitted the existence of a treating relationship when faced with overwhelming evidence – where the respondent holds registration – where the respondent submits that a period of suspension of 3 months with the imposition of conditions is an appropriate sanction – where the applicant submits that the respondent’s registration ought to be suspended for at least 2 years – whether the Tribunal ought to suspend or cancel the respondent’s registration
Health Ombudsman Act 2013 (Qld), s 103, s 104, s 107
Health Practitioner Regulation National Law (Queensland), s 5
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 102
Craig v Medical Board of South Australia  79 SASR 545
Nursing & Midwifery Board v Hogan  TASHPT 3
Psychology Board v Garcia  VCAT 128
Psychology Board of Australia v Popovski  VCAT 155.
Psychology Board of Australia v Shahinper  QCAT 259
Psychology Board of Australia v Wakelin  QCAT 516
Psychology Board of Australia v Wakelin (No 2)  QCAT 553
Shahinper v Psychology Board of Australia  QCA 96
APPEARANCES & REPRESENTATION:
M Fairweather (sol) of Minter Ellison
P Van Grinsven instructed by Thynne + Macartney
REASONS FOR DECISION
- The applicant has referred these disciplinary proceedings against the respondent to the Tribunal pursuant to sections 103(1)(a) and 104 of the Health Ombudsman Act 2013 (“HO Act”).
- The respondent was first registered as a psychologist on 21 July 2005. She is, and at all material times was, a registered health practitioner as defined in section 5 of the Health Practitioner Regulation National Law (Queensland) (“National Law”).
- The applicant seeks a finding that the respondent has engaged in professional misconduct, which is defined in section 5 of the National Law as follows:
professional misconduct, of a registered health practitioner, includes—
- (a)unprofessional conduct by the practitioner that amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and
- (b)more than one instance of unprofessional conduct that, when considered together, amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and
- (c)conduct of the practitioner, whether occurring in connection with the practice of the health practitioner’s profession or not, that is inconsistent with the practitioner being a fit and proper person to hold registration in the profession.
- The respondent concedes that the conduct of the respondent should be characterised as professional misconduct within the terms of subparagraph (a) of the definition, but contends that neither subparagraph (b) or (c) apply to her conduct.
- In addition to a finding of professional misconduct, the applicant seeks orders that:
- (a)the respondent be reprimanded;
- (b)the respondent’s registration be suspended for a period of at least two years; and
- (c)conditions be placed on the respondent’s registration requiring education about professional ethics, supervision and mentorship on return to practice and prohibition from practice as a sole practitioner until such conditions are satisfied.
- The respondent submits that the Tribunal would not find that the respondent is not of good character, or that she is currently not a fit and proper person to practice as a psychologist and that, in addition to a reprimand, the Tribunal should suspend the respondent’s registration for a period of three months and place conditions on her registration requiring education about professional ethics, supervision and mentorship for 12 months, and that the respondent be restricted from providing services beyond preparing reports in family law and Childrens Court proceedings for a period of 12 months.
- The conduct alleged against, and admitted by, the respondent falls into three categories:
- (a)forming a close personal and sexual relationship with a patient (“the patient”) in 2008 that transgressed the boundaries of a proper therapeutic relationship between psychologist and patient;
- (b)failure to make and/or keep adequate records of the treatment of the patient; and
- (c)attempting to deceive and/or mislead the Office of the Health Ombudsman during its investigation of her conduct and the conduct of these proceedings in the Tribunal and failing to act with integrity and cooperate honestly with the investigation and proceedings, as required by the Australian Psychological Society Code of Ethics (“the Code”) and/or in breach of section 264(1) of the HO Act.
- Such conduct is admitted by the respondent and the admitted facts are summarised as follows.
The boundary violation
- The respondent was in her mid-20s and had been registered as a psychologist for less than three years when the boundary violation commenced. The respondent was contracted to provide psychological services at a psychology clinic in a regional Queensland city. By a referral letter dated 18 April 2008, a general practitioner referred the patient, then aged 36 years and described as showing symptoms of depression and relationship crisis, to the respondent for assessment and further management of his condition. The patient attended three consultations with the respondent in late April and May 2008.
- By late May or early June 2008, the respondent and the patient commenced a close personal and sexual relationship without the respondent having terminated the therapeutic relationship, or having referred the patient to another psychologist. The relationship continued with the respondent and the patient marrying about a year later and having two children before the breakdown of their marriage in May 2014, about six years after the relationship had commenced. The respondent’s conduct was in breach of the Code which, relevantly, provided:
- (a)do not engage in sexual activity with a client … ;
- (b)do not engage in sexual activity with a former client … within two years after terminating the professional relationship with the former client.
Failure to make and/or keep adequate records
- The respondent has failed to produce any records made during the course of her treatment of the patient. The respondent has not stated whether she failed to make any records, or failed to keep any records she did make. In either case, the respondent has failed to comply with the relevant provisions of the Code which require the making and keeping of records for seven years.
Attempts to deceive and failure to act with honesty and integrity
- On 17 November 2015, in response to an information requirement notice issued by the Office of the Health Ombudsman on 27 October 2015, the respondent falsely denied having had a psychologist-patient relationship with the patient. She attempted to deceive or mislead the Office of the Health Ombudsman by stating that the patient was not her client and that, whilst initially referred by his doctor to see her, at that time she was not accepting new referrals and did not accept the referral of the patient.
- On 24 August 2016, the respondent attended an interview with investigators who were “authorised persons” under part 15 of the HO Act, during which the respondent was informed of her obligation not to provide false or misleading information pursuant to section 264 of the HO Act. In response to questions about whether there had been a treating relationship with the patient, the respondent attempted to deceive or mislead, or did not respond honestly, when she responded that the patient had been referred to see her, but, “although he claims I saw him, I didn’t.” She made further statements denying that she had ever provided psychological services to the patient.
- In response to questions about when she commenced a personal relationship with the patient, the respondent attempted to deceive or mislead, or did not respond honestly, when she advised that it was probably the end of June and that she and the patient did not start seeing each other until June 2008.
- In response to questions about receiving the original treatment referral from the patient’s general practitioner, the respondent dishonestly stated that she was only aware of the referral in September 2008 and that she had not seen it until three years into her marriage.
- In response to questions about handwritten notes of the patient’s forthcoming appointments that had been written on the reverse of two of her business cards, which were shown to her during the interview, the respondent again gave misleading or deceptive answers.
- In response to questions about billing arrangements of the psychological clinic and appointments recorded by Medicare, the respondent gave answers which were designed to mislead the investigators.
- In an email to the Office of the Health Ombudsman dated 3 January 2017, the respondent falsely stated:
I cannot state why [the patient] is listed in my April 2008 timesheet, other than administration have recorded this from Medicare records. This entry may also be included on the timesheet of the psychologist who saw him, from diary entries.
- The respondent well knew that the patient was listed on her timesheet because she had, in fact, seen the patient on 30 April 2008, and she was aware that he had not been seen by any other psychologist at the practice at that time.
- In a letter to the Office of the Health Ombudsman dated 6 December 2018, following a compulsory conference held pursuant to section 67 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (“QCAT Act”), the solicitors for the respondent advised that they had been instructed by the respondent to maintain her denial that she had ever been in “a respondent/patient relationship” with the patient. Specific questions were raised in the letter, obviously upon the instructions of the respondent, directed towards throwing doubt on the patient’s credibility and reliability as a witness, including raising questions as to whether the patient had, in fact, suffered a very traumatic event, which was one of the reasons that he had been originally referred to see the respondent.
- It was only after a draft statement of facts had been provided to the respondent’s solicitor on 7 February 2019 that, on 21 March 2019, the respondent advised her solicitors that she did not dispute the facts alleged against her.
- The respondent failed to admit to her boundary violation until confronted with overwhelming documentary evidence of the reality of the psychologist/patient relationship in 2008. Prior to that time, during the course of the investigation from 2015 and the conduct of the proceedings from 2015 to 2019, the respondent engaged in persistent dishonesty in statements made by her to the Office of the Health Ombudsman. Such conduct was in breach of the relevant provisions of the Code, including, in particular:
C.7.1. Psychologists cooperate with ethics investigations and proceedings instituted by the Society as well as statutory bodies that are charged by legislation with the responsibility to investigate complaints against psychologists.
- The respondent has not sought to excuse her conduct, but rather place it in some context by way of reference to her personal circumstances at the time of the conduct. With respect to the boundary violation, the respondent submits that she was in a position of personal vulnerability due to the significant stress she was suffering at the time. The respondent had given birth to her first child in late 2005. The respondent’s relationship with her child’s father was tempestuous and their separation in 2007 bitter, with conflict as to arrangements regarding their child. The respondent was under stress, given her commitments as mother and primary carer and her work commitments. During 2007 through to mid-2008, which encompasses the period before and after she treated and then commenced a relationship with the patient, the respondent was working in a regional city two to three days a week, commuting a lengthy distance. She often felt overwhelmed and had limited support. The boundary violation thus occurred during a difficult and turbulent period of her life, when she was under a great deal of stress.
- The respondent also points to the fact that the patient was not overborne by the respondent and that the patient did not receive any further treatment from the respondent once the personal sexual relationship commenced.
- By way of context with respect to the respondent’s attempts at deceiving and misleading the Office of the Health Ombudsman after a complaint was made in 2015, the respondent points to the circumstances of the respondent then being embroiled in an extremely bitter family law and personal dispute with the patient. The respondent says that she lost sight of her responsibility to be candid and truthful in her dealings with the Office of the Health Ombudsman and instead focused on defending herself from what she perceived as an attempt by the patient to cause her professional harm. Whilst accepting that that was no excuse for her deceptive and misleading conduct, she seeks to explain that her motivation for her conduct was misconceived self-preservation on her part, occurring at a time when her judgment was impaired. She submits that her conduct was out-of-character and that in such circumstances, the Tribunal would not find that she is of general poor character or that she is prone to behave in an untrustworthy, deceitful or insincere way.
Characterisation of conduct
- The Tribunal is satisfied that the conduct of the respondent is such as to meet all sub-paragraphs of the definition of “professional misconduct” in section 5 of the National Law. Accordingly, the Tribunal decides that the respondent has behaved in a way that constitutes professional misconduct.
- In considering the matter of sanction, the Tribunal must be mindful that the main principle for administering the HO Act is that the health and safety of the public are paramount. Purposes of sanction are protective, not punitive.
- As has been noted in many previous decisions, often citing Craig v Medical Board of South Australia  79 SASR 545 at 553-555, the imposition of sanction may serve one or all of the following purposes:
- (a)preventing practitioners who are unfit to practise from practising;
- (b)securing maintenance of professional standards;
- (c)assuring members of the public and the profession that appropriate standards are being maintained and that professional misconduct will not be tolerated;
- (d)bringing home to the practitioner the seriousness of their conduct;
- (e)deterring the practitioner from any future departures from appropriate standards;
- (f)deterring other members of the profession who might be minded to act in a similar way; and
- (g)imposing restrictions on the practitioner’s right to practise so as to ensure that the public is protected.
- In Psychology Board of Australia v Garcia  VCAT 128, the nature of the power imbalance between a psychologist and their vulnerable patients and the fundamental importance that professional boundaries be maintained was expressed as follows (at ):
General deterrence is a more important factor in the case. Psychologists treat vulnerable people. There is an inherent imbalance in the professional relationship. If this is allowed to transfer into a personal relationship, the potential exists for damage to the client. This is why there are rules designed to prevent such occurrences. These rules are fundamental to the regulation of the psychologist/client relationship. The disposition must reflect the Tribunal’s support of this regulation and the requirement to illustrate that failing to meet the standard has disciplinary consequences.
- With respect to the respondent’s attempts at deceiving and misleading the Office of the Health Ombudsman, it is relevant to note the observations of the Hon J B Thomas AM QC in Psychology Board of Australia v Wakelin  QCAT 516 at :
The respondent’s dishonest responses to AHPRA in the course of the investigation is in some respects an even more serious reflection on her character and the sexual transgression. The character revealed by a practitioner’s actions is obviously a matter with which any disciplinary body must be concerned. She was prepared to misrepresent the truth to the professional body, and made unsuccessful attempts to cover up her actions.
- It was further noted in Psychology Board of Australia v Wakelin at , that:
The importance of deterrence of practitioners from any form of deceit in their dealings with their Professional Board deserves emphasis. The Board has limited resources and needs to be able to trust the response of practitioners who have a duty to deal with their professional association in good faith. Practitioners must know that serious consequences will follow if they flout that duty and that sanctions for such conduct may well exceed that which will be imposed in this particular case.
- The Tribunal has noted the decision of the Tasmanian Health Practitioners Tribunal in Nursing & Midwifery Board v Hogan  TASHPT 3, including those relevant considerations set out at paragraph  of the decision and the respondent’s submissions addressing such.
- In relation to the consideration of insight and remorse (or lack thereof) shown by the respondent, the respondent submits that the Tribunal would be satisfied that the respondent has real insight into and accepts her gross errors and is truly remorseful.
- The respondent has deposed, in her affidavit, to taking full responsibility for her actions and her extreme remorse about her conduct. She has expressed a sincere apology to the patient for the boundary violation. She deposes that she recognises that her behaviour reflects poorly on her and the psychology profession. She states that she has reflected at length on her boundary violation and appreciates the seriousness of such. She states that she also sincerely apologises to the Office of the Health Ombudsman for her conduct necessitating the proceedings. The Tribunal has also heard evidence from the respondent on such issues.
- Unfortunately, the Tribunal has concluded that there is little evidence of an appropriate level of insight on the part of the respondent. The respondent’s explanations for not seeking to address the underlying issues contributing to her conduct by way of education, counselling or mentoring are unconvincing.
- Whilst the respondent submits that her personal circumstances, including her current support network and absence of the prior relevant stressors, mean that there is very little risk of her reoffending, such that a suspension and conditions upon registration are an appropriate response by way of sanction, the Tribunal has concluded that the respondent is not currently a fit and proper person to hold registration in the profession.
- Suspension is a less serious consequence for the respondent than cancellation because suspension is for a specified limited period. The proper use of a suspension is in cases where the practitioner has fallen below the high standards to be expected but not in such a way as to indicate that he or she lacks the qualities of character which are necessary attributes of a person entrusted with the responsibilities of the practitioner.
- The respondent would have been better placed to satisfy the Tribunal that, after a period of suspension, she would be fit to resume practice, if she had undertaken steps towards appropriate education, counselling and mentoring, but has not done so. In those circumstances, the Tribunal cannot confidently predict that the respondent will be fit to resume practice after a period of suspension. In those circumstances, the appropriate orders are for cancellation of the respondent’s registration. The respondent will then have to satisfy the Board upon an application for re-registration that she has taken steps to demonstrate her fitness to practice. The Board will be best placed, at that time, to determine what conditions should be placed upon the respondent’s registration, if granted.
- With respect to the question of the length of any period during which the respondent should be disqualified from applying for re-registration, the Tribunal has had regard to the decisions placed before it, including Psychology Board of Australia v Wakelin  QCAT 516, Psychology Board of Australia v Wakelin (No 2)  QCAT 553, Psychology Board of Australia v Shahinper  QCAT 259, Shahinper v Psychology Board of Australia  QCA 96 and Psychology Board of Australia v Popovski  VCAT 155.
- Whilst the cases of Shahinper and Popovski might suggest that a preclusion period of three years would be within range in these comparable circumstances, there are factors in both cases which would permit them to be regarded as more serious examples of professional misconduct, or considerations relevant to the practitioners in those cases which justified such lengthy periods of preclusion but are not present in the respondent’s circumstances. She has no relevant prior notification history. Some allowance should be made for those mitigating factors deposed to and relied upon by the respondent as explaining, but not excusing, her misconduct.
- In all the circumstances, the Tribunal concludes that a preclusion period of two years is sufficient to meet the protective purposes of sanction in the circumstances of this case.
- The Tribunal notes that the orders made by Judge Sheridan on 21 August 2018 will continue to prohibit publication of the contents of a document or thing filed in or produced to the Tribunal, evidence given before the Tribunal, and any orders made or reasons given by the Tribunal to the extent that it could identify any patient or any family member of any such patient. Those orders mean that there can be no publication of any of those things that would tend to identify the patient or any child of the patient and the respondent.
- The applicant has sought an order for costs. Following upon the orders in relation to sanction, counsel for the respondent indicated the respondent’s willingness to pay the costs of the applicant to be agreed or assessed and the Tribunal will order accordingly.
- Accordingly, the Tribunal orders as follows:
- Pursuant to section 107(2)(b)(iii) of the Health Ombudsman Act 2013 (Qld), the Tribunal decides that the respondent has behaved in a way that constitutes professional misconduct;
- Pursuant to section 107(3)(a) of the Health Ombudsman Act 2013 (Qld), the Tribunal reprimands the respondent;
- Pursuant to section 107(3)(e) of the Health Ombudsman Act 2013 (Qld), the respondent’s registration is cancelled;
- Pursuant to section 107(4)(a) of the Health Ombudsman Act 2013 (Qld), the Tribunal disqualifies the respondent from applying from registration for a period of two years; and
- Pursuant to section 102(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), the respondent pay the applicant’s costs of the proceeding to be agreed or assessed.
Further order and reasons
- Subsequent to the hearing, in response to a query from the Office of the Health Ombudsman, the Tribunal invited the parties to file written submissions if either party wished to submit that the orders made on 21 August 2018 would require anonymisation of the decision or reasons. The Tribunal did not receive any such submissions. The Tribunal has determined that it would not be appropriate for the decision or reasons to be anonymised. To remove any concern that publication of the decision or reasons naming the respondent might be contrary to the orders made on 21 August 2018, the Tribunal orders as follows:
- The non-publication orders made by the Tribunal on 21 August 2018 are amended by the deletion of the words, “; and c. any order made or reasons given by the tribunal” in order 1.
Nursing & Midwifery Board of Australia v Hogan  TASHPT 3 at .
- Published Case Name:
Health Ombudsman v Cara Jane Bricknell
- Shortened Case Name:
Health Ombudsman v Bricknell
 QCAT 340
18 Oct 2019