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- Unreported Judgment
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Health Ombudsman v Whittaker  QCAT 180
gary JAMES whittaker
Occupational regulation matters
DATE OF DECISION:
10 October 2019
DATE OF REASONS:
26 June 2020
On the papers
Judge Allen QC, Deputy President
PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – MEDICAL PRACTITIONERS – DISCIPLINARY PROCEEDINGS – PROFESSIONAL MISCONDUCT AND UNPROFESSIONAL CONDUCT – where the respondent is a general practitioner – where the respondent engaged in a sexual relationship with a patient under his care – where the parties agree as to the characterisation of the conduct and sanction – whether the proposed sanction is appropriate –
Health Ombudsman Act 2013 (Qld) s 103, s 104, s 107.
Office of the Health Ombudsman
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)
REASONS FOR DECISION
- The Tribunal made orders in this matter on 10 October 2019. These are the reasons for the Tribunal’s decision.
- The orders followed upon a referral of a health service complaint against Dr Gary James Whittaker (“respondent”) pursuant to section 103(1)(a) and section 104 of the Health Ombudsman Act 2013 (Qld) (“the HO Act”) by the Director of Proceedings on behalf of the Health Ombudsman. The parties had reached agreement as to the material facts, the characterisation of the conduct and proposed sanction. It remained, however, for the Tribunal to be satisfied as to whether, in fact, the charge was made out and whether the proposed orders for sanction were appropriate.
- The respondent is currently 60 years of age. He was 54 to 56 years of age at the time of the conduct the subject of the referral. The respondent was first registered as a medical practitioner on 8 January 1985. The respondent has maintained a suburban general practice from 1986 until the suspension of this registration pursuant to the orders of the Tribunal. The respondent’s conduct related to a patient of the respondent’s general practice (“the patient”).
- The patient first became a patient of the respondent in early 2013. From that time onwards the patient sought treatment by the respondent for various health issues, including physical injury and mental health issues, including depression. During 2013, the respondent noted the patient’s symptoms of depression and suicidal ideation. The respondent prescribed anti-depressant medications.
- In 2014, the respondent referred the patient to a psychiatrist. In a referral letter dated 6 February 2104, the respondent noted that the patient had a history of depression dating back a few years, had suicidal ideation and dependent and vulnerable personality traits.
- On 11 February 2014, the patient attended upon the psychiatrist who diagnosed a Depressive Disorder, consistent with Major Depression, provided advice regarding medication management and advised the patient to return to see him in two weeks’ time. The patient did not do so but continued to see the respondent.
- On 7 March 2014, the respondent noted the patient reported being close to hurting herself and was observed to have bandaids on her wrist.
- Sometime before 8 April 2014, the respondent gave the patient his home email address. This was due to the level of concern about the patient’s mental health. On 8 April 2014 the respondent noted in the patient’s clinical records that the patient left a consultation in tears and later emailed the respondent at home, stating that the respondent did not care that she left in an agitated state. The respondent and the patient continued to email and discuss the patient’s mental health and discussed further therapy. The patient refused the respondent’s suggestion to involve another therapist. The patient insisted she was not seeking anything from the respondent beyond a doctor-patient therapeutic relationship. Around this time during one or more consultations prior to August 2014, the respondent gave the patient hugs in the context of a supportive counselling relationship.
- In or around August 2014, the respondent gave the patient a birthday present. During August 2014, the respondent made clinical notes, including noting discussions with the patient concerning “boundary issues” and “boundary setting re length of app’ts”.
- On 10 October 2014, the respondent noted an “extreme reaction to my leaving Brisbane over last 3 weeks.”
- On an occasion in October 2014, the respondent kissed the patient. In or around November 2014, the respondent and the patient started having sexual intercourse. From November 2014, the respondent began attending the patient’s house for home visits.
- In January 2016, the patient, accompanied by the respondent, presented to a hospital emergency department. The medical records outlined the patient presented with thoughts of self-harm, and that the patient had been attempting to walk in front of cars. She was diagnosed with “suicidal ideation”.
- In early July 2016, the patient had her last appointment with the respondent. The respondent sent an email to the patient outlining that he wanted to end the relationship, but upon meeting the next day the respondent had changed his mind and wanted to continue the relationship.
- In July 2016, the patient left Brisbane, and the respondent and patients sexual relationship ended. The respondent continued to keep contact with the patient up until his self-notification to the Health Ombudsman on 26 July 2016.
- During the treating relationship the respondent did not refer the patient to another general practitioner, but did refer the patient to multiple specialists for various health issues, including a psychiatrist as noted earlier. The respondent sometimes treated the patient multiple times a week. The respondent charged the patient a fee on each office consultation, but did not charge the patient 5 of the 11 visits noted as home visits in the patient’s clinical records.
- The respondent and the patient had sexual intercourse two or three times a week at his practice and in the patient’s residence during the period from November 2014 to July 2016.
- On 26 July 2016, the Office of the Health Ombudsman (‘OHO”) received a self-notification from the respondent about his sexual boundary violation with the patient. The respondent reported that, after his wife overheard a phone conversation he had with the patient and deduced that it was not an innocent conversation, the respondent had sought the counsel of a senior psychiatrist and discussed the matter with a colleague. The respondent reported that he would seek to undertake a professional boundaries course and would reduce his counselling services.
- On 16 August 2016, the Health Ombudsman took immediate action against the respondent and placed conditions on his registration as a medical practitioner which included only treating male patients and undertaking further education on professional boundaries.
- On 1 September 2016, the respondent voluntarily attended an interview with OHO investigators and made admissions.
- On 21 September 2016, the Health Ombudsman varied the conditions on the respondent’s registration so as to allow him to treat female patients with a chaperone present.
- From October 2016 to January 2017, the respondent attended seven education sessions with a senior psychiatrist who later reported that the respondent had the knowledge, skills and attitudes required to continue to practise without undue risk to the public with respect to his management of his relationships with his patients.
- In a letter to the Health Ombudsman of 31 December 2016, the respondent expressed remorse for his behaviour and appeared to possess insight as to his failures.
- The respondent subsequently reported some minor breaches of the chaperone condition upon his registration and provided explanations. The Health Ombudsman decided to take no further action other than reminding the respondent of his obligation to comply with conditions.
- On 31 May 2018, the Health Ombudsman removed the conditions imposed on the respondent and, until suspended by the orders of the Tribunal, the respondent had practiced unrestricted from that time.
- The parties both submitted that the conduct of the respondent should be characterised as professional misconduct. The Tribunal had no hesitation in accepting such submission and found that the respondent had behaved in a way that constitutes professional misconduct
- In imposing a sanction, the health and safety of the public are paramount. Relevant considerations include both personal and general deterrence, the maintenance of professional standards and the maintenance of public confidence. The function of the Tribunal is protective, not punitive.
- The parties jointly submitted that the respondent should be reprimanded and that his registration should be suspended for a period of 13 months to commence on a date to be negotiated by the parties and sanctioned or approved by the Tribunal.
- The determination of sanction remains a discretionary matter for the Tribunal, notwithstanding any agreement between the parties. However, the Tribunal ought not to depart from a proposed sanction agreed between the parties unless it falls outside a permissible range of sanction.
- The parties referred to a number of comparative decisions of this and other Tribunals in submitting that the proposed sanction fell within an appropriate range. Analysis of those decisions by way of comparison and contrast with the circumstances of this matter is not necessary. It is sufficient to say that the Tribunal agreed that the proposed sanction fell within a permissible range of sanction.
- Given the remorse and insight demonstrated by the respondent, this is not a case where the protective purposes of sanction required cancellation, rather than suspension, of registration. The Tribunal was satisfied that the respondent had demonstrated fitness to continue practice. The proposed sanction appropriately denounced the respondent’s professional misconduct, offered a salutary deterrent to the respondent and other practitioners from engaging in such conduct and served to protect the reputation of the profession and the maintenance of professional standards.
- Accordingly, the Tribunal made orders for sanction and costs in the terms proposed by the parties.
- Published Case Name:
Health Ombudsman v Whittaker
- Shortened Case Name:
Health Ombudsman v Whittaker
 QCAT 180
Allen QC J
26 Jun 2020