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Medical Board of Australia v Blomeley[2018] QCAT 163

Medical Board of Australia v Blomeley[2018] QCAT 163

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Medical Board of Australia v Blomeley [2018] QCAT 163

PARTIES:

MEDICAL BOARD OF AUSTRALIA

(applicant)

v

NEVILLE RAYMOND BLOMELEY

(respondent)

APPLICATION NO/S:

OCR255-14

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

21 June 2018

HEARING DATE:

5 June 2017; 6 June 2017

HEARD AT:

Brisbane

DECISION OF:

Judge Sheridan, Deputy President

Assisted by:

Dr D Khursandi

Dr K Goh

Mr M Halliday

ORDERS:

  1. Pursuant to s 196(1)(b)(iii) of the Health Practitioner Regulation National Law (Queensland), the Tribunal finds Dr Blomeley has behaved in a way that constitutes professional misconduct.
  2. Pursuant to s 196(2)(e) of the Health Practitioner Regulation National Law (Queensland), Dr Blomeley’s registration is cancelled, effective from 20 July 2018.
  3. Pursuant to s 196(4)(a) of the Health Practitioner Regulation National Law (Queensland), Dr Blomeley is disqualified from applying for registration for a period of four years, commencing on and from 20 July 2018.
  4. Dr Blomeley is to pay the Medical Board of Australia’s costs of and incidental to these proceedings, to be agreed or, failing agreement, to be assessed on the District Court scale.
  5. The costs shall be assessed by an assessor to be agreed between the parties or, failing agreement, appointed by the Tribunal.
  6. Dr Blomeley shall pay the costs (as agreed or as assessed) within 28 days of receipt of such agreement or assessment, or such longer period as may be agreed between the parties. 

CATCHWORDS:

PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – MEDICAL PRACTITIONERS – DISCIPLINARY PROCEEDINGS – PROFESSIONAL MISCONDUCT – where the practitioner had faced prior disciplinary proceedings arising out of a sexual relationship with a former patient – where the practitioner re-engaged in and maintained a personal relationship with that patient – where the Board was notified of the continuance of the personal relationship during the first disciplinary proceedings – where the second notification and resulting investigation was not disclosed to the tribunal in the first disciplinary proceedings – whether the practitioner behaved in a way that constituted professional misconduct – whether the  practitioner’s registration should be cancelled – whether the practitioner should be prevented from re-applying for registration – whether the practitioner should pay the costs of the proceedings

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 100, s 102(3), s 127

Health Ombudsman Act 2013 (Qld), s 4(1)

Health Practitioner Regulation National Law (Queensland) , s 5, s 195, s 196(1)(b)(iii), s 196(2)(e), 196(4)(a)

Uniform Civil Procedure Rules 1999 (Qld)

Briginshaw v Briginshaw (1938) 60 CLR 336

Medical Board of Australia v Love [2013] QCAT 608, considered

Nursing and Midwifery Board of Australia v Isgrove [2015] QCAT 522, considered

Psychology Board of Australia v Shahinper [2016] QCAT 259, considered

APPEARANCES & REPRESENTATION:

 

Applicant:

R Devlin QC of counsel, instructed by Moray & Agnew Lawyers

Respondent:

M Black of counsel, instructed by Gilshenan & Luton Legal Practice

REASONS FOR DECISION

  1. [1]
    On 11 November 2014, the Medical Board of Australia (Board) referred to the Tribunal disciplinary proceedings against Dr Blomeley in which it alleged that Dr Blomeley had behaved in a way that constituted professional misconduct arising out of, amongst other things, a continuing sexual relationship with a patient in the period between 21 October 2012 and on or about 28 October 2013.  In an amended referral filed 17 August 2015, the Board contended that the conduct of the practitioner was inconsistent with Dr Blomeley being a fit and proper person to hold registration in the profession.
  2. [2]
    By its further amended referral filed 31 August 2016, the Board removed the allegation of the continuance of a sexual relationship, alleging only the continuance of a personal relationship.  Dr Blomeley admits the continuance of a personal relationship but says that his conduct was unprofessional conduct, not professional misconduct, and says that a suspension from practice for up to 12 months would be appropriate in the circumstances.

Factual background

First QCAT proceedings

  1. [3]
    By the time of the making of this referral, Dr Blomeley had already been the subject of an earlier referral to the tribunal arising out of a relationship with the same patient.  The patient, JJW, had been a patient of Dr Blomeley between May 2000 and July 2012 and was treated by Dr Blomeley for various ailments including depressive symptoms and the absence of sexual intimacy in her marriage.[1]  A personal and then sexual relationship had developed in late 2010 and continued unabated until 26 July 2012.  The existence of that relationship had been the subject of a notification by JJW to the Board on 26 July 2012.[2]
  2. [4]
    A letter was sent by the Board to Dr Blomeley on or about 16 August 2012.  On 4 September 2012, Dr Blomeley responded to the notification admitting the existence of a sexual relationship, acknowledging its inappropriateness and expressing remorse.  The Board took immediate action and imposed conditions on Dr Blomeley’s registration on 17 September 2012 including a requirement that Dr Blomeley only see female patients with a chaperone present and that he undertake an education program addressing professional boundaries and ethical decision making in clinical practice (the 2012 conditions).
  3. [5]
    Between 20 November 2012 and 8 April 2013, Dr Blomeley attended six sessions with Dr Brian Kable.  Dr Kable provided a report dated 9 April 2013 on the completion of the sessions.
  4. [6]
    On 26 September 2013, the Board filed its referral in the tribunal alleging that from November 2010 to about July 2012 Dr Blomeley had engaged in a sexual relationship with JJW (the first QCAT proceedings).  In those proceedings, consistent with the approach taken in his dealings with the Board, Dr Blomeley:
    1. (a)
      admitted the sexual relationship;
    2. (b)
      admitted the conduct constituted professional misconduct; and
    3. (c)
      admitted the sexual relationship had an adverse impact on JJW’s mental health.
  5. [7]
    In those proceedings, Dr Blomeley swore an affidavit on 13 December 2013 deposing to the fact that the counselling and further education provided by Dr Kable had helped him work through the issues of how and why boundary violations can occur and how to be prepared and identify the risks so that further such violations can be prevented.[3]  Annexed to the affidavit was the report of Dr Kable dated 9 April 2013.
  6. [8]
    An agreed statement of facts was filed on 21 February 2014 with each party filing separate submissions in March and April 2014 regarding sanction.
  7. [9]
    The matter proceeded by way of an on the papers hearing.  In its decision delivered on 23 May 2014, the tribunal found Dr Blomeley guilty of professional misconduct and ordered that Dr Blomeley be reprimanded and suspended for a period of 15 months with chaperone conditions to be imposed for a twelve-month period on his return to practice.  Dr Blomeley was also ordered to pay the Board’s costs of and incidental to the proceedings.

Second notification

  1. [10]
    JJW made a further notification to the Board through AHPRA on 29 September 2013 advising that the relationship with Dr Blomeley was ongoing.[4]  That notification was retracted on or about 3 October 2013, but again repeated on 8 October 2013.
  2. [11]
    On 4 November 2013, JJW was admitted to the Royal Brisbane and Women’s Hospital (RBWH) having taken an overdose of prescriptive medication.  Six days later on 10 November 2013, JJW drove her car into Dr Blomeley’s garage, effectively destroying the roller door and causing extensive damage to an internal wall of the property.  Following this incident, JJW was again admitted to RBWH and placed on an involuntary treatment order.  JJW was subsequently charged with criminal offences arising out of the incident.[5]
  3. [12]
    By letter dated 11 November 2013, in response to the further notification, the Board notified Dr Blomeley of an intention to take immediate action. 
  4. [13]
    On 25 November 2013, in the letter from his solicitors to the Board in response to the notification of an intention to take immediate action, submissions were made on behalf of Dr Blomeley denying any “conduct of a sexual and/or intimate nature” with JJW since July 2012.[6]  The submissions contained admissions by Dr Blomeley of having exchanged emails and telephone calls with JJW and of having met with JJW on three occasions but said that the practitioner had “genuinely attempted to cease contact with JJW since the relationship ended in or about July 2012.  However, JJW had gone to significant lengths to restore contact with me.”[7]
  5. [14]
    On 5 December 2013, the Board resolved not to take immediate action “as the Committee reasonably believe the notification is lacking in substance”.[8] 
  6. [15]
    JJW made a further notification in the form of a sworn statement dated 6 January 2014.  A copy of that statement was provided to Dr Blomeley with a request for his response to the allegations.  A further notification was received by the Board from JJW’s treating psychiatrist on 10 February 2014 with JJW lodging a further notification with AHPRA on 11 February 2014.
  7. [16]
    On 31 March 2014, the Board received legal advice that it was too late to join the further notifications of JJW and her treating psychiatrist to the first QCAT proceedings.
  8. [17]
    The further notifications became the subject of these referral proceedings with the referral being filed on 11 November 2014, some six months after the tribunal’s decision in the first QCAT proceeding.
  9. [18]
    It is not disputed that the existence of the second notification and the investigation resulting from it was not disclosed to the tribunal by either party in the first QCAT proceedings.
  10. [19]
    By the time of the filing of this referral, Dr Blomeley was six months into his 15 month suspension.  By the time this matter came on for hearing before this Tribunal in June and July of 2017, Dr Blomeley had been practising absent any conditions, including chaperone conditions, since October 2016.

Current proceedings

  1. [20]
    The further amended referral in these proceeding makes the following allegations against Dr Blomeley:
    1. (a)
      between 21 October 2012 and 28 October 2013, Dr Blomeley re-engaged in and maintained a personal relationship with JJW in breach of his obligations as a medical practitioner to his former patient (allegation 1);
    2. (b)
      Dr Blomeley knowingly provided incorrect and/or inaccurate and/or misleading information to Dr Kable during the counselling sessions held during the period 20 November 2012 to 8 April 2013 (allegation 2);
    3. (c)
      Dr Blomeley knowingly provided incorrect and/or inaccurate and/or misleading information to the Board and the tribunal with respect to:
      1. (i)
        the nature and/or duration and/or scope of his relationship with JJW; and
      2. (ii)
        his degree of insight and contrition and/or the benefits he had obtained from counselling and/or his willingness to address any deficiencies (allegation 3);
    4. (d)
      in the alternative to allegation 3, Dr Blomeley knowingly provided information which he knew, or ought reasonably to have known, would create a false impression in the mind of the reader as to the true state of affairs (allegation 4).
  2. [21]
    The initial referral filed on 11 November 2014 included only allegation 1 and included as part of that allegation an allegation of the re-engagement in and maintenance of both a personal and sexual relationship with JJW and included additional particulars of that relationship. 
  3. [22]
    The first amended referral filed on 17 August 2015 extended the grounds of disciplinary action to allege that Dr Blomeley had engaged in conduct that was inconsistent with him being a fit and proper person to hold registration in the profession.  The amended referral incorporated allegations 2 to 4.  With the filing of the second amended referral on 31 August 2016, the reference to the re-engagement in and maintenance of a sexual relationship was removed. 
  4. [23]
    During the hearing, the Board called and tendered evidence as to each of the allegations against Dr Blomeley, with particular reliance on the telecommunication records from both Optus and Telstra.  The admissions made by Dr Blomeley meant that it was not necessary for the Board to call JJW.
  5. [24]
    Dr Blomeley gave evidence to contradict some of the evidence before the Tribunal.  His evidence was particularly directed to challenging allegations 2, 3 and 4.  On behalf of Dr Blomeley, it was submitted that, based on the evidence received, the Board had not proved, to the necessary standard, its allegations regarding Dr Blomeley’s motives or the assertion of Dr Blomeley engaging in knowingly misleading conduct. 
  6. [25]
    The Tribunal accepts, as was submitted, that the Tribunal must be satisfied to the standard referred to by Dixon J in Briginshaw v Briginshaw[9]  as Dixon J said:

Reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved.  The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal.  In such matters, ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences.

  1. [26]
    There is no doubt that a practitioner in the position of Dr Blomeley is entitled to put the prosecuting authority to proof before putting evidence (if any) in response.
  2. [27]
    It was submitted by Dr Blomeley that the Tribunal should approach the documents tendered in evidence by the Board on the basis that any disputed fact contained in a document would need to be proved and that any documents which have not been put to Dr Blomeley for comment should be treated with particular care.  It was said that any allegations in documents before the Tribunal are mere allegations which must be proved to the requisite standard in order to be relied upon.

Allegation 1

  1. [28]
    The allegation of re-engagement in the maintenance of a personal relationship with JJW contains 14 particulars.  By reference to the amended response filed by Dr Blomeley, Dr Blomeley admits 11 of those particulars and disputes the remaining three.  Having regard to the admissions made, the following factual allegations are admitted:
    1. (a)
      In late 2012, a meeting occurred between Dr Blomeley and JJW at Indooroopilly Shopping Centre;
    2. (b)
      Between November 2012 and April 2013 Dr Blomeley attended counselling sessions with Dr Kable addressing boundary violations;
    3. (c)
      Throughout 2013, Dr Blomeley and JJW had a number of meetings including meetings at Mount Coot-tha Slaughter Falls and a meeting at the Waterloo Hotel;
    4. (d)
      Emails were exchanged between JJW and Dr Blomeley including;
      1. An email dated 3 October 2013 in which Dr Blomeley queried whether JJW would withdraw her recent letter to AHPRA;
      2. An email from JJW to AHPRA dated 4 October 2013 reaffirming that the Health Practitioner was a “good, caring and decent person”;
      3. An email from Dr Blomeley dated 5 October 2013 following receipt of the email sent to AHPRA by JJW, in which Dr Blomeley stated: “Thank you – that means so much to me.  This is the lady I fell in love with.”;
      4. An email sent by JJW to Dr Blomeley dated 6 October 2013 in which she stated: “If I don’t go to work on Tuesday would you lie in the garden with me again?  For an hour and a half and whisper in my ear, and kiss my neck and let me love you??  Please?”;
      5. An email response from Dr Blomeley to JJW on 7 October 2013 in which Dr Blomeley stated: “As much as I love that idea, I will be at work unfortunately.  It sounds very tempting but all booked out as usual.  Hope your breakfast is going well – our damn internet is still down – Telstra are doing something in the area and it may be for another 24 hours.  Missing you – would love to be biting on your neck.  Nxx (sic).”;
      6. An email sent by Dr Blomeley to JJW on 13 October 2013 in which Dr Blomeley stated: “That’s a good idea – you way over-analyse things to the point that it all becomes distorted.  I won’t disappear unless you tell me to or if the nastiness reappears.  We can support each other in this time but only if there are just loving thoughts – no more nastiness and cruelty.  I am back Tuesday night from Sydney then Darwin Thursday am and back Friday evening.  Then off to Phuket for Sports Med conference on Sunday and back the following Sat.  Then I will sit still.  Have a good day – we have cricket today and I won’t have lap top with me – they are doing the security things with no phones etc.  I was in trouble on Thursday for having my phone.  Have a good day – will be thinking good thoughts for you.  N (sic)”;
      7. An email sent by JJW to Dr Blomeley on 28 October 2013 in which JJW stated: “I can’t win.  You were happier a week ago (or pretending to be laying on the rug with me) (sic)”; and
      8. On 28 October 2013 Dr Blomeley sent an email in which he stated: “Yes I was happy then and then you did all that whilst I was away – it started on Sunday 18 hours after seeing you so obviously I didn’t give you any joy and then the demands started even though I had been emailing to check you were ok.  I can’t win either.  (sic)”
  2. [29]
    Dr Blomeley disputes:
    1. (a)
      whether the date of the meeting at Indooroopilly Shopping Centre was in October 2012 (as alleged) and whether that meeting was by chance;
    2. (b)
      that meetings with JJW also occurred at Roma Street Parklands and a carpark at Sherwood;
    3. (c)
      that Dr Blomeley made all of the 450 telephone calls to JJW’s personal telephone service between 23 October 2012 to 16 November 2013.
  3. [30]
    For reasons which will become apparent, it is convenient to deal with the dispute in relation to the phone calls first.

The phone calls

  1. [31]
    Dr Blomeley admits he made a number of calls but does not accept that every call as listed in annexure RN-1 to the referral notice was made by him.  Annexure RN-1 details all the phone calls between 23 October 2012 and 5 November 2013 made to the personal mobile of JJW where the originating number was a number registered in the name of the surgery where Dr Blomeley worked.
  2. [32]
    The accuracy of the schedule was not disputed by Dr Blomeley.  It was accepted that the originating number belonged to the surgery and that the calls had been made to the personal mobile number of JJW.
  3. [33]
    Dr Blomeley refused to accept that the majority of the calls had been made by him.  In cross-examination, even when taken to particular days, Dr Blomeley simply said, “I don’t know,” or, “I can’t guarantee I made those calls.”  When asked to accept he made the majority of them, he said, “I accept I made a percentage of them.  I can’t say it was the majority of them.”
  4. [34]
    In giving evidence, he continued to maintain the calls could have been made by other people at the surgery, saying that JJW continued to be a patient of the surgery. He accepted that if the calls had been made by a treating practitioner a note of the call would have been recorded.  A reference to JJW’s medical records does not suggest any of the calls were made by her treating practitioner in the relevant period.  Further, the medical records tendered in these proceedings do not record JJW having attended at the surgery for a consultation after June 2012.[10]
  5. [35]
    Dr Blomeley maintained that certain calls were definitely not made by him because they were made at times when he was either away from work or not at that particular medical practice.  He listed some 42 such occasions out of the 450 calls but led no independent evidence in support of that statement.
  6. [36]
    Later in cross-examination, he was prepared to accept that he made a significant number of the calls.
  7. [37]
    He acknowledged that there was multiple calls on some days and said they resulted from times when JJW would hang up on him, “and was causing a scene.”  He said he was concerned that “she might do something irrational and so I continued to try and contact her”.
  8. [38]
    Whilst Dr Blomeley made some concessions in relation to the phone calls, he repeatedly refused to give unequivocal answers.  Apart from his attitude, it is entirely improbable that there could have been so many calls between JJW and the surgery which were not made by him.  His evidence to the contrary, particularly having regard to his demeanour when questioned about this issue, was not believable.
  9. [39]
    The Tribunal accepts that the majority of the 450 calls identified in annexure RN-1 were made by Dr Blomeley and that many of the calls made lasted between two minutes and 20 minutes. 

The meetings

  1. [40]
    In terms of the meeting at Indooroopilly Shopping Centre, Dr Blomeley gave evidence that JJW had “sat herself” at Indooroopilly Shopping Centre where he went for coffee every day.  Dr Blomeley said that on this particular day he saw her and walked across to her table and chatted for about 10 minutes.  Dr Blomeley accepts the contact between JJW and himself gradually increased after this meeting. 
  2. [41]
    Dr Blomeley continued in giving oral evidence his denial that the meeting occurred in October 2012, insisting that his recollection was that the meeting occurred later, in December 2012 or even January 2013.  He said he recalled the meeting being much closer to the settling of the civil claim by JJW against him.  The claim was settled in February 2013.  It is not disputed that the meeting was their first contact after the cessation of the relationship on 26 July 2012.
  3. [42]
    The evidence otherwise received by the Tribunal does not support Dr Blomeley’s recollection.  The phone records tendered in evidence by the Board indicate outward phone calls from Dr Blomeley’s surgery to JJW on 23 and 24 October 2012.[11] 
  4. [43]
    Further, the phone records indicate continuing contact in the period between 5 November and 1 December 2012, with 17 outward calls from Dr Blomeley’s surgery recorded in that period.  Dr Blomeley denies making any of those calls, despite JJW’s medical records indicating that she did not attend at the surgery after June 2012.  Dr Blomeley maintained his first further contact with JJW did not occur until some time in December 2012.
  5. [44]
    The Tribunal was provided evidence of a note made by JJW’s solicitor on 8 November 2012 which recorded JJW reporting that she had bumped into Dr Blomeley at Westfield Shopping Centre.  Further, JJW’s treating psychiatrist also gave evidence of JJW reporting at a consultation on 7 November 2012 recent contact with Dr Blomeley.
  6. [45]
    On 22 October 2012, JJW had also sent an email to her lawyers requesting they make contact with Dr Blomeley’s lawyers asking if they will cover “all her expenses and costs” and if so, that she will withdraw from the legal action.  Dr Blomeley accepts that in the October/ November period there was “back and forth” between lawyers in relation to the civil case.  Dr Blomeley also admitted that in the meeting there was reference to the civil case but denied that they had any discussion regarding the complaint to AHPRA.  Dr Blomeley denies putting any pressure on JJW regarding the civil case or the notification to AHPRA.
  7. [46]
    Given the evidence before the Tribunal, the Tribunal does not accept the evidence of Dr Blomeley as to when the first further contact was made with JJW.  The Tribunal accepts that first contact occurred on or about 22 October 2012. 
  8. [47]
    In terms of the locations of meetings, it is the fact of meetings having occurred between JJW and Dr Blomeley that is a matter of some significance and Dr Blomeley has admitted meetings occurred at JC Slaughter Falls and one at the Waterloo Hotel.  It is unnecessary for the Tribunal to decide whether the meetings, as particularised at Roma Street Parklands and/or a carpark at Sherwood occurred but JJW has sworn that these meetings occurred and there is no reason not to accept that evidence and every reason, as appears in this decision, not to accept Dr Blomeley’s denial.

Allegation 2

  1. [48]
    The allegation of having knowingly provided incorrect and/or inaccurate and/or misleading information to Dr Kable during counselling sessions is denied by Dr Blomeley.
  2. [49]
    The attendance of Dr Blomeley upon Dr Kable was pursuant to conditions placed on his registration by the Board following the making of the complaint by JJW.  The conditions were said to require Dr Blomeley to undertake an education program addressing professional boundaries and ethical decision-making.
  3. [50]
    The particulars of the allegation relate to the information which it is alleged Dr Blomeley failed to disclose to Dr Kable during the sessions about his continuing relationship with JJW.  It is alleged Dr Blomeley failed to disclose to Dr Kable that he:
    1. (a)
      had re-established contact with JJW in or about October 2012;
    2. (b)
      was engaging in, and maintaining, extensive email, telephone and personal communication with JJW;
    3. (c)
      was engaging in, and maintaining, an inappropriate personal relationship with JJW.
  4. [51]
    Dr Blomeley accepts that he did not disclose those things to Dr Kable but says those things do not properly or accurately describe the circumstances of the personal relationship with JJW.  Irrespective of how the relationship may be described, Dr Blomeley admitted in giving evidence that he did not disclose anything to Dr Kable about any ongoing contact with JJW.
  5. [52]
    In terms of the allegations, the focus of the Board’s submissions were that Dr Blomeley had deliberately misled Dr Kable.  In its questioning, counsel for the Board alleged that the reason for doing so was so that Dr Blomeley could obtain a more favourable report from Dr Kable and avoid the process being prolonged.

Evidence of Dr Blomeley in relation to allegation 2

  1. [53]
    Dr Blomeley’s answers in cross-examination as to why he did not disclose anything to Dr Kable are very telling and provided the Tribunal further insight into the general attitude of Dr Blomeley.  Throughout, Dr Blomeley maintained his denial that his non-disclosure had anything to do with obtaining a more favourable report from Dr Kable or the process he would be required to undertake being prolonged. 
  2. [54]
    In cross-examination, Dr Blomeley maintained that he regarded the sessions with Dr Kable as being “educational”.  Dr Blomeley described the sessions as “really rewarding and educational” and that he “took a lot out of them”.  Despite in his earlier submissions to the Board referring to attending upon Dr Kable for “counselling”,[12] in his oral evidence, he continued to maintain the distinction between education and counselling and to offer that as a justification as to why he did not mention his continuing contact with JJW to Dr Kable.
  3. [55]
    Interestingly, Dr Blomeley stated: “And I know that I would never cross the boundaries again because of the sessions – or partly because of the sessions.”  When reminded in cross-examination that he did cross the boundary again, Dr Blomeley’s explanation was: “This was an ongoing relationship that occurred from the time before.”
  4. [56]
    Dr Blomeley also made reference to being aware that Dr Kable was not being paid for his services.
  5. [57]
    Dr Blomeley accepted that the video played during the sessions with Dr Kable emphasised the need to “consult with your colleagues”.  When it was suggested to Dr Blomeley in cross-examination that he declined to consult with anyone, Dr Blomeley said he saw a psychologist and consulted some close friends.
  6. [58]
    It is clear from the answers given by Dr Blomeley that the purpose of the consultations with that psychologist was to save his marriage and not to address his issues which had led to the boundary violations, despite statements by Dr Blomeley to the contrary.  Dr Blomeley admitted that the sessions with the psychologist were attended by his wife and that, in fact, his wife was unaware at the time of the sessions that there was any ongoing contact with JJW.  Subsequently, Dr Blomeley’s evidence was that he attended sessions alone.  He said that his psychologists was “happy enough” that he was aware of the boundary issues.  However, Dr Blomeley admitted that he had not disclosed the full story to the psychologist. The Tribunal does not accept that Dr Blomeley was attending upon the psychologist to address the issues surrounding his boundary violation with a patient.  The Tribunal finds the evidence given in this regard as another example of Dr Blomeley’s lack of candour.
  7. [59]
    Dr Blomeley said that he had a strong need for approval, though his evidence made it clear he had not attempted to address his own vulnerabilities by seeking professional help.  It was also clear that he had not admitted any vulnerabilities to Dr Kable.
  8. [60]
    Given the evidence accepted by the Tribunal as to when Dr Blomeley’s contact with JJW recommenced, all sessions with Dr Kable occurred after contact had recommenced.  By the time of the second session with Dr Kable on 17 December 2012, even accepting fully Dr Blomeley’s evidence, Dr Blomeley had met JJW at a coffee shop and had had email exchanges and numerous telephone conversations with JJW.
  9. [61]
    On the day of the second session with Dr Kable, Dr Blomeley had received an email from JJW and had phoned her number twice.
  10. [62]
    The emails received by Dr Blomeley from JJW make it clear that JJW continued to express the intensity of her feelings for Dr Blomeley and the power he held over her.  He accepted he considered JJW “difficult” but denied that made her vulnerable. 
  11. [63]
    In an email sent by JJW to Dr Blomeley on 1 December 2012, JJW stated:

Secret and sacred, intense and soft, privately aching is our love.  Burning hot and hotter still.  Peace and love to follow through.  Reflection and passion build and build.  Warm bodies embracing, touching and learning every intimate detail of the other’s yearning.  Intimate and satisfying in a complete of satiate.  This is your power, the power you hold over me.

  1. [64]
    In cross-examination, Dr Blomeley said he could not recall receiving the email.  Dr Blomeley was referred to a number of other emails in which JJW had made similar expressions of both love and power.
  2. [65]
    Dr Blomeley said he was trying to end the relationship with JJW but admitted that he failed.  Dr Blomeley said he was trying the things that Dr Kable had talked about.  Dr Blomeley said he tried blocking emails, changing phones, blocking his home email and changing his home email address.
  3. [66]
    Despite taking those steps, the evidence was that there were still phone calls going out from his number at the practice at various times on a daily basis with multiple calls each day and frequent email communications.
  4. [67]
    Dr Blomeley does not accept that he was told by Dr Kable to cut all ties.  Dr Blomeley was critical of Dr Kable’s assessment of JJW showing signs of having a borderline personality disorder in circumstances where Dr Kable was not aware there was any ongoing contact.
  5. [68]
    An email exchange in March 2013, whilst Dr Blomeley was still attending the sessions with Dr Kable, evidenced a growing intensity in the demands of JJW and an increasingly urgent tone to her emails. The email exchange on 25 March 2013 is a clear example of the extent of communication on one day and the disturbing tone of the communication including the inappropriateness of some of the matters raised:

Email from JJW to Dr Blomeley - 10:14am

It’s interesting, in stress you ask for support and then you still don’t accept it. If anything, you push me further away. You really don’t know what you want do you?

Email from Dr Blomeley to JJW – 10:19am

Yes i do but I don’t understand. I am just busy this am and suddenly I’m back in the poo because I cant call. I don’t think that’s pushing you away and I don’t think its providing support by suddenly deciding that’s the end of communication now until you get back from your wonderful time at the coast.

Email from JJW to Dr Blomeley – 10:26am

Let me make it long then. Good luck.

Email from Dr Blomeley to JJW – 10:37am

I can call in about 15-20 min –is that oK?

Email from JJW to Dr Blomeley – 10:40am

Don’t bother.

They relief in your email yesterday at not having to share a walk with me yesterday but instead going to the Roar match pretty much sums up your attitude. I’m here in your mind to act as a back stop. I’m not the main man.

I off…

Email from Dr Blomeley to JJW – 10:49am

What are you on about –I didn’t have much option but to go to the game did I ?

Email from JJW to Dr Blomeley – 12:56pm

It was the relief and off handedness you displayed(as usual) at having a ready made answer not to have to see me. You really never put yourself out at all.

Enough

Email from Dr Blomeley to JJW – 1:01pm

I had a game on –what else can I say ???????

Email from JJW to Dr Blomeley – 3:22pm

I don’t want to talk. I told you graham was away from 9-14 April but as always you have made no plans to ensure we can catch up. Everything is always catch up with you. nothing is planned. You say one thing but your actions say something entirely different. I am sick and tired or living in hope that you might change.

I give up.

Email from Dr Blomeley to JJW – 4:12pm

That is 2 weeks away.

Email from JJW to Dr Blomeley – 4:47pm

Exactly.

You don’t get my point and in don’t understand your complete lack of enthusiasm except to say that I must totally bore you.

Email from Dr Blomeley to JJW – 4:58pm

That’s so wrong and you know it. I can’t understand how this started – it all came from me being busy and couldn’t talk for a time this am – this is so ridiculous .My lack of enthusiasm or that is how you perceive it is related to my overwhelming low moods at the moment which I thought you of all people would understand . The number of times you haven’t been able to attend events because you are so down but that can’t be the same for me.

  1. [69]
    Despite those communications, Dr Blomeley attended the next session with Dr Kable on 8 April 2013 and still did not raise the continuing contact with JJW.  Dr Blomeley said he “did not feel the need” to raise it; did not “think it was the right time to discuss it with him”.  He said he didn’t feel the opportunity was there to discuss it with Dr Kable.  This was despite admitting in cross-examination, “I didn’t know how to … get rid of the contact.”
  2. [70]
    Dr Blomeley accepted in cross-examination that JJW could think, as a result of some of the communications, he was giving her hope of the recommencement of a sexual relationship.  Dr Blomeley, albeit somewhat reluctantly, accepted that some of the communications could be seen to be manipulative.
  3. [71]
    Dr Blomeley admitted in evidence that at the meeting at Indooroopilly Shopping Centre there was still that “general warmth of feeling for her”.  He admitted that when the sexual relationship ended “there were unresolved issues”.  He said he felt he could be a friend and said that she “could be there for me as well”.  Despite these admissions, which disclose a considerable lack of insight into boundary issues, he still chose not to say anything to Dr Kable. 
  4. [72]
    Dr Blomeley admitted he knew Dr Kable would provide a report but said that he only thought the report would say that he had completed the course.  The Tribunal cannot accept that Dr Blomeley did not know that Dr Kable’s report would address more than the fact of the completion of the course. 
  5. [73]
    The Tribunal does not accept that Dr Blomeley was not aware that the report would make reference to the practitioner’s insight or learnings from participating in the program and the likelihood of the practitioner reoffending.

Evidence of Dr Kable in relation to allegation 2

  1. [74]
    At the conclusion of the counselling sessions, Dr Kable prepared a report to AHPRA dated 9 April 2013.  In the report, Dr Kable described that he had conducted six sessions of counselling with Dr Blomeley.  Dr Kable referred to the first session conducted on 20 November 2012 which he described as “general information gathering about Dr Blomeley and his circumstances, the events which led to the offence and my assessment of his insight into his situation and outlined the plans ahead”. 
  2. [75]
    Dr Kable referred in his report to the special attention paid to explaining the harm that may come to patients involved with a practitioner.
  3. [76]
    Dr Kable stated in his report that he had formed the view that Dr Blomeley had gained a great deal from the sessions and had made appropriate changes to his practice to prevent any further violations in the future.  Importantly, Dr Kable expressed the view, “I would conclude firmly that Dr Blomeley does not represent a danger to the public in any way and is most unlikely to reoffend.”
  4. [77]
    In his affidavit dated 17 December 2015, Dr Kable referred in more detail to the first session with Dr Blomeley and said in it he explored the common vulnerabilities that may lead to the commencing of boundary violations.  Dr Kable said these included the practitioner’s personal relationships, personal illness, family history of abuse and/or sexual abuse, and financial difficulties.  Dr Kable said Dr Blomeley advised that he did not identify himself as vulnerable in any of those stated areas.
  5. [78]
    Dr Kable said that he emphasised to Dr Blomeley that a patient with whom a doctor had maintained an intimate relationship could not be retained only as a friend.  Dr Kable said, “The boundaries are too blurred and the scars too deep.”
  6. [79]
    In his affidavit dated 18 November 2016, Dr Kable says that he specifically recalls at the conclusion of the final session with Dr Blomeley he asked Dr Blomeley if he felt that he would be able to avoid any further transgressions in the future.  Dr Kable says Dr Blomeley replied with words to the effect of, “Yes, I can contact you in the future if I have any concerns with these types of issues.”  Dr Kable says at no point did he receive any further contact from Dr Blomeley.
  7. [80]
    In giving evidence before the Tribunal, Dr Kable stated that a clear emphasis of the sessions with Dr Blomeley was the importance to cut off all contact.  In his evidence, Dr Kable said that in this particular case he directly said:

Don’t give the mobile phone number. In fact change your mobile number if necessary.  Change your email if necessary.  Make sure you don’t – or your staff never give out these things to patients.  You should do that anyway.  I think that’s a very foolish thing to give your email to – and your mobile phone to your patients.  It’s – you don’t know what they’re going to do with the information.  Anyway the – yes, cut off contact by changing the mobile phone, changing the email, refusing to deal with any threats or approaches.  Just cut off.  Make a note in the files, “I am not to see this patient.  She is not to have another appointment.”  So you cut off everything.  It’s got to be very serious.  You don’t let the staff pass through any messages, and you make a note in the file, “This patient not to see me anymore.”

Analysis of evidence in relation to allegation 2

  1. [81]
    The Tribunal finds that during the sessions with Dr Kable it must have been at the forefront of Dr Blomeley’s mind that he was still having contact with JJW.  In the discussions with Dr Kable he must have realised the significance to Dr Kable of his continuing contact.
  2. [82]
    Given the email exchanges through March and early April 2013, Dr Blomeley must have appreciated that he should be “consulting with his colleagues”.  The demands of JJW were increasing, Dr Blomeley was himself downloading to an ex-patient and both were at times using inciteful language. 
  3. [83]
    An analysis of the emails around this time together with the phone calls makes it clear matters were escalating, not diminishing.  If Dr Blomeley was truly trying to end the relationship, he was not succeeding.  It is certainly not correct to say, as Dr Blomeley deposed to in his affidavit sworn 6 December 2016, that: “From February to March 2013 JJW and I had minimal contact.”[13]
  4. [84]
    The Tribunal finds that Dr Blomeley knowingly provided incorrect, inaccurate and misleading information to Dr Kable during the counselling sessions.
  5. [85]
    The Tribunal finds that Dr Blomeley knowingly allowed Dr Kable to believe the relationship with JJW had ceased and to believe that Dr Blomeley:
    1. (a)
      had insight into the inappropriateness of the relationship with JJW;
    2. (b)
      understood the harm that may come to patients involved with a practitioner in such a boundary violation; and
    3. (c)
      had appropriately modified his practice.
  6. [86]
    Finally, the Tribunal finds that Dr Blomeley knowingly allowed Dr Kable to write a report dated 9 April 2013 consistent with the beliefs Dr Blomeley had knowingly allowed Dr Kable to form.

Allegation 3

  1. [87]
    Dr Blomeley denies the allegation of having knowingly provided incorrect and/or inaccurate and/or misleading information to the Board and the tribunal with respect to the nature and/or duration and/or scope of the relationship with JJW and his degree of insight and contrition and/or the benefits from counselling and/or his willingness to address any deficiencies.
  2. [88]
    The Board relied upon four main grounds:
    1. (a)
      Dr Blomeley’s reliance in submissions to the Board and to the tribunal in the first referral proceedings on the report of Dr Kable in circumstances where he knew that the opinions expressed were premised on false and misleading information (ground 1);
    2. (b)
      The inference in submissions to the Board or the tribunal that Dr Blomeley’s relationship with JJW had ceased as at July 2012 (ground 2);
    3. (c)
      Dr Blomeley having deposed to the extent of his insight and knowledge about maintaining professional boundaries (ground 3); and
    4. (d)
      Dr Blomeley having relied on the report of Dr Kable for the sole purpose of obtaining for himself a better outcome with respect to sanction (ground 4).

Ground 1

  1. [89]
    As to the first ground, the Tribunal accepts that Dr Blomeley knew that the opinions expressed by Dr Kable in his report were premised on incorrect, inaccurate and misleading information.
  2. [90]
    The Tribunal also finds that Dr Blomeley knew the report had been provided by his lawyers to the Board and to the tribunal.  The report of Dr Kable was first provided to the Board in or about April 2013 as proof of his compliance with the conditions on his registration.  Later, in the submissions sent to the Board under cover of his solicitor’s letter dated 25 November 2013 in response to the notice of proposed immediate action, Dr Blomeley referred to having completed the course of counselling with Dr Kable and states that it had been “useful in reiterating to me that maintaining clear professional boundaries is an important aspect of patient care”.
  3. [91]
    In the first referral proceedings, Dr Blomeley annexed the report of Dr Kable to his affidavit dated 13 December 2013, which was tendered as evidence in those proceedings.
  4. [92]
    The Tribunal finds that Dr Blomeley was clearly aware of the reliance of the Board and the tribunal on the report of Dr Kable.

Ground 2

  1. [93]
    As to the second ground, before both the Board and the tribunal, Dr Blomeley at all times denied that he had engaged in a sexual and/or intimate relationship with JJW since the relationship ended in July 2012 and he says he was very up front to the Board that there had been further contact with JJW. 
  2. [94]
    In his submissions to the Board on 25 November 2013, Dr Blomeley certainly disclosed that he had communicated with JJW via email and telephone and that he had met with her on three occasions.  In his submissions, Dr Blomeley stated that he had “genuinely attempted to cease contact” since the relationship ended in or about July 2012, but said, “However, JJW has gone to significant lengths to restore contact with me.”  He gives examples of her attempts to contact him and his extended family.  
  3. [95]
    He then refers to the attempts he says he made to cease all contact including changing his mobile number on two occasions, changing his email address and blocking her email accounts on six occasions.  He disclosed the coffee shop meeting and said that there were two other meetings where he agreed to meet her in an attempt to dissuade her from contacting him and his family.
  4. [96]
    He failed to mention that the meetings with JJW were at JC Slaughter Falls.  He also failed to disclose meeting her at the Waterloo Hotel.  He failed to disclose the number of times he phoned her and the language used by both in the email communications, including phrases used by him such as: “Missing you –would love to be biting you on your neck”, in response to a request from JJW to “lie in the garden with me”; or an email message from Dr Blomeley assuring JJW that she had not misunderstood his message in response to her email, “Call me if you actually get a free afternoon to make love.”

Ground 3

  1. [97]
    As to the third ground, it is clear from his ongoing interactions with JJW, many of which are admitted in these proceedings, that at the time of the first QCAT proceedings, Dr Blomeley had gained no understanding as to the importance of maintaining professional boundaries. 
  2. [98]
    His evidence in these proceedings makes it clear that at the time of recommencing contact with JJW, he still had feelings for JJW and there remained unresolved issues.  Despite his sessions with Dr Kable, he considered there could be a friendship and they could support each other.  As a medical professional, he showed no understanding as to why the continuance of any relationship was wrong. Relevantly, he admitted to failing to understand the vulnerabilities of JJW.
  3. [99]
    Despite being told by Dr Kable to stop all contact and to seek the help of colleagues, he did neither.  At that time, he showed an extraordinary lack of insight and statements made in these proceedings indicate a continuing lack of insight.
  4. [100]
    Dr Blomeley had permitted his lawyers to send the Board the submissions dated 25 November 2013 in response to the notice of proposed immediate action.  It was not said in these proceedings that the submissions had been sent without instruction.
  5. [101]
    A very disturbing aspect of the submissions was the blame which Dr Blomeley sought to attribute to JJW.  The submissions state that JJW had gone to significant lengths to “restore contact with me” and spoke of JJW’s “repeated and continued attempts at contact”.
  6. [102]
    In his affidavit sworn 6 December 2013, filed in the first referral proceedings, Dr Blomeley refers to the counselling with Dr Kable in addressing boundary violations.  Dr Blomeley says Dr Kable has “provided me with tools to evaluate ethical dilemmas”.  Dr Blomeley deposes to being more aware of “what are boundaries and the reasons as to why they are essential in therapeutic relationships”.
  7. [103]
    General statements were made by Dr Blomeley and those statements were not limited to the violation of boundaries through a sexual relationship.  In the same paragraph of his affidavit, Dr Blomeley also made particular reference to the responsibility of the medical practitioner where a sexual relationship develops and the harm which can be done to a patient in the event of a sexual boundary violation.
  8. [104]
    The statements made by Dr Blomeley in his affidavit are clearly intended to indicate an understanding by him as to his broader obligations.  Dr Blomeley was clearly indicating that he understood the importance of professional boundaries and that he had gained insight and knowledge of maintaining professional boundaries; not just sexual boundaries.
  9. [105]
    A reference to the various emails sent by Dr Blomeley to JJW highlights the inaccuracy of these statements.  Dr Blomeley could not have believed that he was maintaining clear professional boundaries in his continuing dealings with JJW.
  10. [106]
    In the final paragraph of his affidavit, Dr Blomeley states:

Since the time the complaint was made, I have been committed to being open and honest about my conduct and to taking responsibility for it.

  1. [107]
    In circumstances where Dr Blomeley knew that he had continued a personal relationship with JJW for the period between October 2012 and November 2013, various statements in his affidavit are clearly incorrect, inaccurate and misleading.
  2. [108]
    The affidavit of Dr Blomeley was sworn some 20 days after the cessation of the continuing personal relationship in circumstances where JJW had driven her car into the garage of Dr Blomeley’s house resulting in JJW being charged and involuntarily admitted to a psychiatric hospital.
  3. [109]
    In those circumstances, Dr Blomeley could not possibly say he had been open and honest about his conduct in continuing to have a personal relationship with JJW.   The affidavit filed in the first referral proceedings, like the submissions to the Board, was clearly misleading.
  4. [110]
    Further, the submissions as to sanction filed in the first referral also make reference to Dr Blomeley having taken steps to “reinforce and improve his understanding of professional boundaries”.  The submissions again refer to Dr Kable’s observations that “Dr Blomeley had made appropriate changes in his practice to prevent any further boundary violations”.
  5. [111]
    The submissions make reference to JJW having informed AHPRA that Dr Blomeley had apologised and indicated to him that he found the counselling and other boundary violation provided by Dr Kable “very insightful”.  The submissions comment that Dr Blomeley had had a further 14 months to reflect on the unsatisfactory nature of the conduct and to gain a greater understanding of the ethical issues involved.

Ground 4

  1. [112]
    Further, as to the fourth ground, the Board alleges that Dr Blomeley’s reliance on the report was for the sole motive of obtaining a better outcome on sanction.  In cross-examination, Dr Blomeley denied such a motive. 
  2. [113]
    The Tribunal accepts that Dr Blomeley’s insistence that the meeting at Indooroopilly Shopping Centre did not occur in October 2012 but some time later was an attempt to distance himself from having any influence over JJW in relation to the settlement of the civil case and the AHPRA proceedings.  The Tribunal does not accept that the AHPRA proceedings were not mentioned at the first meeting.  For Dr Blomeley, both matters were intrinsically intertwined.
  3. [114]
    Further, it is more than co-incidental that the day after the settlement of the civil case in February 2013, JJW sent an email to AHPRA in support of Dr Blomeley. The Tribunal does not accept Dr Blomeley’s denial under cross-examination that he ever coerced JJW in relation to the APHRA thing or suggested that she could help in any way.
  4. [115]
    In emails, after JJW’s further complaint to AHPRA on 29 September 2013, the very clear implication is that Dr Blomeley was involved in encouraging JJW to withdraw her complaint.  In an email to JJW on 2 October 2013, after being provided by JJW with a copy of her email to AHPRA containing her further complaint, Dr Blomeley stated:

OK, I have my answer. This is not going to be very pleasant for either of us now you know.  You had a choice to restore some hope and happiness for us both but you have chosen to go the nasty, horrible, spiteful route.  So be it.

  1. [116]
    Under cross-examination, Dr Blomeley again denied the sending of that email could be viewed as “another act of manipulation”.  Dr Blomeley denied the email could be interpreted as “threatening a detriment” or “dashing the hopes [you] held out of a resumption of the physical relationship”.
  2. [117]
    The next day, on 4 October 2013 Dr Blomeley sent a further email, in which he said,

Tell me what you plan on doing please.  Will you be withdrawing your recent letter to AHPRA or will you continue all support for me as you said in an email on the weekend?

  1. [118]
    JJW responded, saying:

Never once have you said you can’t live without [me] in your life…What’s the point of all this?

  1. [119]
    Dr Blomeley responded by email that same day, saying:

No, my life is on hold until this medical board stuff is over with – I explained that – I can do nothing until then.  Depending on length of suspension and financial issues associated with that will give me an idea of what I am doing and where I am going.  Right now I just want to get off the planet and not have to go through this anymore.  All this stuff with you and the board is just hurting too much.

  1. [120]
    The exchange of emails and phone calls continued that day with Dr Blomeley making further demands for JJW to tell him what she was doing about the complaint.  Eventually at 7.12pm on the night of 3 October 2013, JJW sent an email to AHPRA retracting her statement and apologising for taking up their time.  In the agreed statement of facts, Dr Blomeley agrees that he was sent by JJW a copy of that email.  Later that same evening, JJW sends a further email to AHPRA, describing Dr Blomeley as a “good, caring and decent person and doctor.  I respect him totally as a doctor and a kind and caring human being.”  The very next day, Dr Blomeley sent an email to JJW saying, “Thank you – that means so much to me. This is the lady I fell in love with. N.” 
  2. [121]
    Curiously, despite admitting in the statement of agreed facts to the sending of this email, during cross-examination about these email exchanges, Dr Blomeley said he had doubts as to whether he actually sent that email and then said, that if he did send it, “it was not meant in those terms”.  He said, if he did send it, “that yes, I had strong feelings for her in the past and this was the sort of person that I did develop affection for.”   He said, “This is relating more back to the early days when we did have a strong connection.”  Dr Blomeley continued, “I’m not saying that I am in love with her at that point in time;  I’m just saying this is the type of person that I did develop affection for.  I think it was pretty clear at that stage that there was no love between us.”
  3. [122]
    Dr Blomeley again denied that he had put any pressure on JJW to withdraw her complaint to AHPRA, insisting that he had said to her a number of times, “If you want to write to AHPRA, that’s your choice.  I don’t want anything to do with it.”  The Tribunal does not accept that evidence.  It simply does not sit with the email communications sent by Dr Blomeley to JJW.
  4. [123]
    It also does not sit with the fact that Dr Blomeley at around this time agreed to meet up with JJW at JC Slaughter Falls, not once but twice:  firstly, on Saturday 12 October, and then again on Saturday 19 October 2013, and admits that they sat on a rug together and that he gave JJW a farewell hug.
  5. [124]
    Following the making of the further complaint by JJW to APHRA, the contact between JJW and Dr Blomeley intensified.  Despite the emails, the meetings and the numerous phone calls, Dr Blomeley denied that he was putting any pressure on JJW and said that any reference as to whether she was going to withdraw her complaint “was merely a question on my behalf”.  In cross-examination, when asked further about the email, Dr Blomeley maintained, “I believe, at the time it was not pressure”; albeit he accepted that he can accept now “it can appear that it’s pressure”.
  6. [125]
    The Tribunal does not accept that Dr Blomeley can truly believe that, at the time, he was not applying pressure to JJW.  The manipulation in his conduct at the time was brutally blatant and clearly directed to JJW not pursuing a further complaint to AHPRA.  He was driven by trying to obtain the best outcome for himself:  he was driven by that when he attended upon Dr Kable, and he remained driven by that.

Conclusion

  1. [126]
    Given the continuing relationship with JJW, the more recent notifications by JJW to AHPRA including the sworn statement by JJW (both of which were provided to Dr Blomeley through his lawyers), the statements made in the submissions to the Tribunal and Dr Blomeley’s affidavit filed in the proceedings, like the earlier submissions to the Board, were clearly untrue and Dr Blomeley knew them to be untrue.                 

Allegation 4

  1. [127]
    In the alternative to allegation 3, it is alleged that Dr Blomeley knowingly provided information which he knew or reasonably ought to have known would create a false impression in the mind of the reader as to the true state of affairs.  The particulars of the allegation are the same particulars as for allegation 3.  Dr Blomeley also denies this allegation.
  2. [128]
    It is difficult to see that this allegation is an alternative to allegation 3.  Rather, it would seem to be an extension of allegation 3 except for the requirement that he either knew or reasonably ought to have known.  Presumably the author of the referral considered this allegation identified lesser misconduct in that it refers to what the practitioner knew or reasonably ought to have known and it was concerned with the creation of a false impression in the mind of the reader as to the true state of affairs, as opposed to being incorrect, inaccurate or misleading.
  3. [129]
    Given the findings in relation to allegations 2 and 3, the Tribunal is satisfied that Dr Blomeley knowingly provided information which he knew would create a false impression in the mind of the reader as to the true state of affairs.

Professional misconduct

  1. [130]
    The Board says the conduct of Dr Blomeley as alleged amounts to professional misconduct. 
  2. [131]
    The term professional misconduct is defined under the Health Practitioner Regulation National Law (Queensland) (National Law).[14]  Sub-paragraphs (a) and (b) of the definition are defined by reference to unprofessional conduct.  Sub-paragraph (c) defines the term as being conduct inconsistent with the practitioner being a fit and proper person to hold registration in the profession, whether occurring in connection with the practice of the practitioner’s profession or not.  That limb of the definition entitles the tribunal to consider conduct beyond the parameters of the person’s professional practice.
  3. [132]
    It was that limb which was the focus of the Board’s submissions. The Board referred to various statements as to the meaning of the expression “fit and proper” and pointed in particular to phrases such as assessing his “knowledge, honesty and ability”, “a commitment to honesty and in those circumstances, when it is required, to open candour and frankness, irrespective of self-interest or embarrassment” and issues of character.  The Board submitted that “the evidence demonstrates that in the conduct of his professional and personal life, Dr Blomeley did not and does not exhibit the requisite characteristics of frankness and honesty to be considered to be a fit and proper person to practice medicine”.
  4. [133]
    In making submissions on behalf of Dr Blomeley, Dr Blomeley’s counsel referred to Dr Blomeley’s admission that his conduct as admitted fell within the definition of sub-paragraphs (a) and (b) of the term professional misconduct, but not sub-paragraph (c).  In oral submissions, counsel for Dr Blomeley said that Dr Blomeley accepted his admitted conduct of re-engaging in a personal relationship amounted to professional misconduct pursuant to sub-paragraphs (a) and (b).  He said where the parties join issue is whether it amounts to professional misconduct pursuant to sub-paragraph (c). 
  5. [134]
    In addition to the admitted conduct of the re-engagement in a personal relationship, the Tribunal has found each of the allegations in the referral proven.  The Tribunal has found that Dr Blomeley knowingly provided incorrect, inaccurate and misleading information to Dr Kable so as to cause Dr Kable to believe that Dr Blomeley’s relationship with JJW had ceased and that Dr Blomeley had insight into the inappropriate relationship, the harm that could be done to a patient and had modified his practice.  Dr Kable produced a report consistent with his beliefs and the Tribunal finds that Dr Blomeley knowingly provided that report to the Board and to the tribunal and hence knowingly provided to the Board and the tribunal incorrect, inaccurate and misleading information.
  6. [135]
    The Tribunal has also found that there was a level of intimacy to the personal relationship which is not admitted by Dr Blomeley.
  7. [136]
    The totality of Dr Blomeley’s behaviour is such that it must be regarded as professional misconduct that was inconsistent with him being a fit and proper person to hold registration in the profession.

Sanction

  1. [137]
    Having found that Dr Blomeley’s conduct amounts to professional misconduct, the Tribunal’s powers to make orders under s 196 of the National Law are enlivened.
  2. [138]
    The Board seeks that Dr Blomeley’s registration be cancelled and that he be disqualified from reapplying for registration for a period of five years.
  3. [139]
    Dr Blomeley’s position is that he should only be suspended for a period of around nine to 15 months.  The submissions on behalf of Dr Blomeley are made in the context of Dr Blomeley not having admitted the full extent of the conduct as pleaded, in particular not having admitted the full extent of the relationship with JJW and not having admitted to having misled Dr Kable, the Board or the tribunal.
  4. [140]
    It is accepted that in imposing any sanction, the guiding principle is protective, not punitive.[15]  The health and safety of the public is paramount.[16]
  5. [141]
    In addition to issues of personal deterrence, consideration must be given to issues of general deterrence, the maintenance of professional standards and the maintenance of public confidence.[17]  
  6. [142]
    Central to any determination of sanction must be an assessment of the ongoing risk posed by the practitioner.  In performing that assessment, the degree to which the practitioner has acquired insight into his conduct will be relevant.  Evidence of rehabilitation will be very relevant.
  7. [143]
    The Tribunal will need to consider “other matters which may be regarded as aggravating the conduct or mitigating seriousness”.[18]

Totality principle

  1. [144]
    Dr Blomeley submits that the imposition of sanction in this case, given the circumstances surrounding the first QCAT proceedings, requires close consideration of the totality principle.[19]  It was said the totality principle arose here because essentially there had been a deliberate splitting of two closely related disciplinary matters:
    1. (a)
      the sexual relationship with JJW between November 2010 and July 2012 which was the subject of the first QCAT proceedings; and
    2. (b)
      the subsequent personal, but not sexual, relationship with JJW between late 2012 and 28 October 2013 which is the subject of these proceedings.[20]
  2. [145]
    It was said on behalf of Dr Blomeley that the Board made a deliberate decision to split the disciplinary matters and thereby denied Dr Blomeley “any opportunity to seek to have both allegations dealt with together”.[21]
  3. [146]
    There is no doubt that the regulatory authority dealt with the matter poorly.  However, both parties were complicit in the tribunal in the first QCAT proceedings not being told the full facts of which both parties were aware at the time.  Dr Blomeley, however, was the only person who knew the full extent of the misinformation which was being provided to the tribunal.
  4. [147]
    In those circumstances, it is difficult to proceed on the basis that Dr Blomeley was denied an opportunity to have both sets of allegations heard together.  Dr Blomeley had a choice and he chose to remain silent as to the true nature of any continuing personal contact with JJW.  The Tribunal does not accept, as was suggested by Dr Blomeley, that the non-disclosure in the first tribunal proceedings was because “everyone’s mind was at all times on the sexual relationship”.
  5. [148]
    In any event, however, the focus for this Tribunal is not so much on why the matter proceeded as it did.  Any resolution of that issue will not assist the Tribunal in determining the appropriate sanction.  If the totality principle applies, as is submitted on behalf of Dr Blomeley, the issue will be whether, had the tribunal in May 2014 been seized of the misconduct the subject of these proceedings, as well as the misconduct before it at that time, what penalty it would have imposed.[22] 
  6. [149]
    Dr Blomeley accepts that the tribunal would have imposed an additional penalty of an extended period of suspension, based on the misconduct admitted in these proceedings.  That said, it was submitted on behalf of Dr Blomeley that the Tribunal ought to first consider the overall sanction.  Dr Blomeley says that would be a sanction of around 24 to 30 months.  It is submitted that having determined the overall sanction, the Tribunal should then adjust the total sanction to reflect the fact that Dr Blomeley has already served a 15-month suspension.
  7. [150]
    The Board opposes that approach and in its submissions says that “totality of sentence” ought to be confined to the criminal jurisdiction where the purpose of sentence is punitive.[23]  Whilst there is no doubt in disciplinary proceedings, the focus point is protection of the public, inevitably in imposing a sanction which may carry with it elements of personal and general deterrence, it is accepted that there may be an element of the sanction which is punitive.  Further, it has been acknowledged by the courts that the totality principle, as it is termed in the criminal jurisdiction, can have a role to play in disciplinary proceedings.[24]  The Tribunal accepts, in determining the final sanction, some regard will need to be had to the totality of the sanction imposed.

Aggravating circumstances

  1. [151]
    In making its more general submissions as to sanction, the Board referred to the aggravating features of this case.  Particular reference was made to the vulnerability of the patient and the impact of the practitioner’s misconduct on the patient.  It is not disputed that on or about 4 November 2013, JJW attempted suicide by taking an overdose of Valium.  In her sworn statement to AHPRA, it was said that she felt so distressed by the “contradictory messages” she was receiving.  Shortly after discharge from that hospital admission, JJW received a letter from Dr Blomeley’s lawyers dated 7 November 2013 to cease any further contact with Dr Blomeley.  On 10 November 2013, three days later, JJW drove her vehicle through Dr Blomeley’s garage.  As a result of that incident, JJW was criminally charged and admitted involuntarily to a mental health hospital.
  2. [152]
    In giving evidence, Dr Blomeley disputed whether the latter incident could properly be described as an attempted suicide, stating that he did not believe that was the conclusion stated in the medical records.  Dr Blomeley preferred to describe the incident as “a cry for help” and “a crash into a garage door to do as much damage to me and my family”.
  3. [153]
    The Board says that Dr Blomeley’s refusal to accept that incident as an attempted suicide as a matter of fact is a demonstration of his lack of remorse.  The Tribunal does not need to resolve that issue and would find it difficult to do so based on the evidence before it.  There is no doubt that Dr Blomeley’s responses to the cross-examination regarding that incident and his response to the incident at his surgery on 2 November 2013, in which JJW attended at the practice, an altercation occurred and the police were called, were both attempts by him to minimise his role in the very tragic circumstances which had unfolded.  His answers were evidence of his continuing refusal to accept responsibility and continuing willingness to lay blame at JJW.
  4. [154]
    Towards the end of cross-examination, counsel for the Board when questioning Dr Blomeley as to the steps taken by him to gain insight, counsel commented that in the explanations provided by Dr Blomeley he had not heard anything about JJW, Dr Blomeley’s response is an indication of the belief he held:

I had apologised to her on a number of occasions for what happened.  I have – my wife and I have often discussed how we would like the best for her and hope she is doing well.  That has come up frequently.  We don’t hold any bitterness and we – we feel – we just hope that she is doing well.

  1. [155]
    Given that Dr Blomeley was the treating practitioner who has admitted to having crossed the boundary, his continuing reference to not holding any bitterness towards JJW, is indicative of his failure to understand the true import of his actions and his continuing refusal to accept complete responsibility.  That is reinforced by his response to the public incident at the surgery on 2 November 2013 in contacting the police, and in having his solicitors provide a letter to JJW following the incident.
  2. [156]
    Despite JJW’s condition, Dr Blomeley continued to deny the significant role he had played.  In his dealings with the police and, as has been found in these proceedings, in his subsequent dealings with the Board and in his evidence in the first QCAT proceedings, statements made by him and on his behalf were clearly misleading.
  3. [157]
    In these proceedings, whilst Dr Blomeley was prepared to make certain admissions and on occasions in giving evidence was prepared to make certain concessions, parts of his evidence were simply not believable; in particular, his continued denial as to having made the majority of the 450 telephone calls; his attempts to distance himself from having received certain email communications; his evidence that he had consulted a psychologist as a result of the sessions with Dr Kable, in circumstances where he later admitted that the purpose of the sessions were to save his marriage, rather than addressing the issues which had led to the boundary violations; and his evidence as to when the meeting at Indooroopilly occurred.  Given the events which unfolded and the evidence obtained through the exposure of the email communications, he could not have done otherwise than admitted to the relationship and admitted that he had handled it badly.
  4. [158]
    Of particular concern are Dr Blomeley’s answers which evidenced a continuing lack of insight and continuing refusal to accept complete responsibility.  His continuing denials that the information given to Dr Kable, to the Board in his submissions and to the tribunal in his affidavit were misleading and showed an unwillingness to now take responsibility for the errors committed.  His continuing insistence that the counselling sessions with Dr Kable were educational, that he did not feel there was the opportunity to make disclosure and his insistence that everyone in the first proceedings was focused on the sexual relationship, are all examples of his inability to take ownership. 
  5. [159]
    His denial in these proceedings that the relationship could be described as intimate, despite the various references in emails to “love” is not accepted and shows a lack of understanding by Dr Blomeley.  His reference to the relationship as being a friendship also is evidence of lack of insight; albeit he accepted it was “a love/hate relationship” and a “dependent relationship of a trauma survivor”.  Interestingly, Dr Blomeley made an admission of JJW having characteristics of “BPD”; though earlier in his evidence he challenged Dr Kable’s reference to JJW having a borderline personality disorder and Dr Kable’s comments that that would impact what would be appropriate conduct by a treating practitioner and heighten the importance of “no contact”.
  6. [160]
    Dr Blomeley’s refusal at any time to engage in any real form of counselling or to seek help from fellow colleagues when the situation with JJW was spiralling out of control is particularly concerning.  It showed a complete lack of insight as to the need to engage and consult other professionals, particularly given his admissions to having his own vulnerabilities.  With those admissions, the fact that he has chosen not to address them in any formal sense shows little real efforts at true rehabilitation.
  7. [161]
    Rather, Dr Blomeley expects the Tribunal to accept that he is at no risk of reoffending because he says he now has an incredibly strong marriage, has reconnected with his faith and attends church regularly, has curtailed his work hours and has very close friends who have supported him through all this. Dr Blomeley has support in this evidence from his wife by way of a reference from her and a church pastor.
  8. [162]
    The extent to which Dr Blomeley clearly exploited and manipulated JJW for his own gain is very serious and the fact that that behaviour is still not readily admitted is a sign that it has not been addressed by him. At one stage in cross-examination, Dr Blomeley accepted that one particular email could be viewed as manipulative, but maintained his denial that his communications with JJW were putting any pressure on her. 
  9. [163]
    The Tribunal has found that his manipulation of JJW was directed to obtaining for himself the best outcome in the civil case and in the AHPRA proceeding. The Tribunal has found Dr Blomeley discussed the civil case and the AHPRA proceedings at the first meeting with JJW at Indooroopilly Shopping Centre.  The Tribunal does not accept that the email sent to AHPRA by JJW the day after settlement of the civil case in February 2013 was simply coincidental.
  10. [164]
    Further, the Tribunal does not accept that Dr Blomeley did not put pressure on JJW to withdraw her further complaint to AHPRA.  The Tribunal does not accept his evidence that he had no role to play in the various emails sent by JJW to AHPRA in which she changed her position.  The Tribunal does not accept that Dr Blomeley’s behaviour should be viewed as other than manipulative and a deliberate attempt to achieve a better outcome for himself in the proceedings.
  11. [165]
    Further, it is also clear from the email exchanges that Dr Blomeley criticised JJW’s current treating psychiatrist; including referring to the treating psychiatrist as a “bloody lesbian bitch” and commenting: “Who does she think she is, saying that I never loved you… She has no bloody idea what she’s talking about.” Those statements must be viewed in the most serious light by the Tribunal as Dr Blomeley conceded in these proceedings.
  12. [166]
    The Tribunal has accepted that Dr Blomeley misled Dr Kable, the Board, and the tribunal. The Tribunal has accepted that the sole motive in his misleading Dr Kable was to obtain a report that would assist him in sanction.

Mitigating circumstances

  1. [167]
    In making submissions on behalf of Dr Blomeley, counsel for Dr Blomeley referenced a number of mitigating circumstances.  Counsel described Dr Blomeley’s misconduct as an “isolated incident”.  The Tribunal considers it is difficult to view the misconduct in that light, in circumstances where the initial misconduct of a sexual relationship ultimately developed into a continuing personal relationship with the same patient, which the Tribunal has found had a level of intimacy.
  2. [168]
    The Tribunal accepts, as was submitted, that Dr Blomeley’s conduct should not be viewed as “predatory” or “exhibiting sexual addiction”.  However, not all boundary violations result from the presence of those characteristics and the Tribunal has not accepted that Dr Blomeley does not pose any current risk.  The Tribunal has found there remains a risk of subsequent transgressions.  The Tribunal is not satisfied that Dr Blomeley has taken the necessary formal steps to rehabilitate himself.  The Tribunal has not accepted that Dr Blomeley has addressed his own vulnerabilities and fully developed insight into his offending.
  3. [169]
    Dr Blomeley has provided the Tribunal with a number of positive references,[25] all of which speak of his highly professional manner. He is described by a co-worker as “one of the pivotal doctors in the surgery”. One reference co-written by husband and wife, both patients of Dr Blomeley, stated that: “As a general practitioner, he stands head and shoulders above the majority of them.  He has always and continues to show genuine care for our medical issues.”  Another patient referred to statements made by specialists that they consider Dr Blomeley to be an excellent, highly respected doctor. 
  4. [170]
    The Tribunal acknowledges that Dr Blomeley was a highly regarded medical practitioner and that he had contributed significantly to the broader community.  The Tribunal accepts that the former proceedings and these current proceedings amounted to a fall from grace and resulted in a number of adverse consequences for Dr Blomeley.  In making submissions, it was said that the Tribunal should infer the media interest continues and that the likelihood for continuing adverse publicity has a deterrent effect.  It was submitted that there is no particular need for further personal deterrence.
  5. [171]
    The Tribunal’s findings do not support such submissions.  Dr Blomeley remains vulnerable and the Tribunal has found that he continues to lack insight.  The Tribunal acknowledges that Dr Blomeley has apologised and has admitted that he handled matters very badly but he has still not accepted complete responsibility for the events which unfolded.  In cross-examination, his concessions were limited.
  6. [172]
    His counsel referred to Dr Blomeley’s co-operation in the progress of both proceedings.  Given the findings of the Tribunal in relation to the first QCAT proceedings, Dr Blomeley’s behaviour in those proceedings must be viewed as a serious aggravating circumstance, not mitigating.  Further, in these proceedings, whilst Dr Blomeley is to be credited with admissions which avoided the necessity for the calling of JJW, the existence of the telephone and computer records made the making of some admissions inescapable.
  7. [173]
    It is not disputed that Dr Blomeley has fully complied with the conditions imposed on his registration.  Given the nature of the misconduct, however, it is not suggested by either party that Dr Blomeley should not be subjected to a further period of not practising.
  8. [174]
    Finally, counsel referred to the evidence given by Dr Blomeley.  It was submitted that he had been confronted, during the course of his cross-examination, with the worst features of his past conduct, and that his answers indicated a genuine acceptance of wrongdoing and a determination to uphold the standards of the profession.  For the reasons already given, the Tribunal does not accept that submission. 

Comparative Cases

  1. [175]
    In making its submissions as to the appropriate sanction the Board referred in particular to the cases of Nursing and Midwifery Board of Australia v Isgrove,[26] Medical Board of Australia v Love,[27] and Psychology Board of Australia v Shahinper.[28]
  2. [176]
    The professional misconduct in those cases resulted in the cancellation of registration and periods of preclusion from reapplying of between nine years in the case of Isgrove, six years in the case of Love and three years in the case of Shahinper.  It is principally on the basis of those authorities that the Board says the appropriate sanction is cancellation and a period of preclusion of five years.
  3. [177]
    Isgrove was a case involving a psychiatric nurse engaged in an inappropriate sexual relationship with an extremely vulnerable patient.  The relationship was found to be highly exploitative and involved the registrant coercing the patient to deny the relationship to both his employer and AHPRA, and to retract earlier statements.  The inappropriate sexual relationship was maintained both physically and via mobile phone for a period of over one year.  It was found the registrant demonstrated no remorse.  In making submissions, the Board accepted the case was distinguishable in that there was found to be a high degree of exploitation for personal sexual gratification, which was not evident here.
  4. [178]
    In the case of Love, a general practitioner pursued a combined treating and sexual relationship for five years with a patient identified as highly vulnerable.  She had been referred to Dr Love for a check-up in relation to domestic violence suffered due to a violent marriage;  she also suffered from anorexia nervosa, depression and anxiety.  The tribunal found that the doctor had gone to considerable length to maintain the secrecy of the relationship and that he had sexually exploited the patient even at a time when her mental health condition was such that she was an inpatient at a psychiatric clinic. There was a complete lack of insight and remorse.  The relationship was described as “exploitative in the extreme” and the practitioner was found to be “entirely unapologetic”.[29]
  5. [179]
    In the case of Shahinper, a psychologist engaged in a sexual relationship with a vulnerable patient without adequately terminating the relationship and arranging a transfer. The practitioner was found to be engaging in the relationship whilst negotiating undertakings with the Board concerning earlier proceedings with a different patient for breach of professional boundaries.  A distinguishing feature of that case was the payment of money by the practitioner to the patient (and the patient’s son) with the inference being that the payments were made in an attempt to keep the patient quiet.  The Tribunal accepts that is a more frank act of deception than the manipulative behaviour of Dr Blomeley.  However, the prolonged behaviour of Dr Blomeley makes his conduct very serious.  At the time of the hearing, Mr Shahinper was undertaking a course of counselling to address his behaviour; though the tribunal found that he still lacked insight. 
  6. [180]
    Counsel for Dr Blomeley, whilst not accepting the relevance of any of those cases, referred to the case of Medical Board of Australia v Azam.[30]  In that case, the practitioner was found by the tribunal to have engaged in “grooming” behaviour towards two vulnerable female patients, which had led to a sexual encounter with one of the patients.  In response, the Board had imposed chaperone conditions, which the tribunal found Dr Azam had breached.  The tribunal found that Dr Azam had deliberately misled the Board by causing the chaperone register to be falsified and had engaged in harassing and intimidating behaviour towards the patient, including hiring a private investigator with the intent of having the patient retract her complaint against him.  Dr Azam denied the allegations, necessitating a three-day trial, including both patients being cross-examined.  The tribunal imposed a sanction of cancellation of registration with a disqualification period of four years.
  7. [181]
    Counsel for Dr Blomeley submitted that Dr Blomeley’s misconduct is objectively less serious than that which confronted the tribunal in Shahinper, Azam and Love and says his mitigating circumstances are significantly more cogent.  Counsel submitted that a total suspension for the entirety of the conduct of something less than three years is called for.

Analysis

  1. [182]
    The Tribunal accepts that in proceeding in its determination of sanction, the combination of lack of insight, an overriding sense of shame and embarrassment which prevented Dr Blomeley seeking help from fellow colleagues, including seeking help to deal with his own vulnerabilities and his ongoing lack of candidness and honesty in giving evidence in these proceedings, makes him a risk of further transgression and indicates that he is not a fit and proper person to remain registered as a medical practitioner and his registration should be cancelled.
  2. [183]
    Based on the authorities to which the Tribunal has been referred, and considering all the circumstances and the principle of totality, an appropriate period of disqualification would be four years.
  3. [184]
    Upon the expiration of that exclusion period, it will be for Dr Blomeley to satisfy the Board that he is, at that time, a fit and proper person to be registered.
  4. [185]
    As Dr Blomeley is currently in practice, it is desirable that his cancellation should commence on a date which will enable the care of his patients to be transferred to others. Section 127 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) permits the making of an order for a decision to take effect on a future date. In the circumstances, it is appropriate to delay the commencement date of the cancellation order for one month.

Costs

  1. [186]
    The Board seeks that Dr Blomeley pay its costs of the proceedings.  It is accepted that the consequence of the repeal of s 195 of the National Law is that the making of costs order in health disciplinary proceedings is governed by Div 6 of Part 6 of the QCAT Act.
  2. [187]
    Pursuant to s 100 of the QCAT Act, the starting point is that each party must bear its own costs. The tribunal may depart from that position if it considers that the interests of justice require it to do so.[31]  It is accepted that gives the tribunal a broad discretionary power,[32] though there must be “a basis for departing from the default position.”[33]
  3. [188]
    Section 102(3) of the QCAT Act relevantly provides that the tribunal may have regard to whether a party has acted in a way that unnecessarily disadvantages another; the nature and complexity of the dispute; the relative strengths of the claims made by each of the parties; the financial circumstances of the parties, and “anything else the tribunal considers relevant”.
  4. [189]
    The “costs follow the event” principle, as applies to proceedings under the Uniform Civil Procedure Rules 1999 (Qld), does not apply in QCAT proceedings.[34] As Wilson J observed in Ralacom, the question that will usually arise in each case is “whether the circumstances relevant to the discretion inherent in the phrase ‘the interests of justice’ point so compellingly to a costs award that they overcome the strong contra-indications against costs orders in s 100”.[35]
  5. [190]
    On behalf of the Board, it was submitted the proceedings arose from very serious allegations including the development and maintenance of an inappropriate personal relationship and misleading a treating colleague, the Board and the tribunal.  Dr Blomeley had at all times denied the true nature of the personal relationship with the patient and denied having misled his treating colleague, the Board or the tribunal.  Until this hearing, Dr Blomeley had also denied that his conduct amounted to professional misconduct. 
  6. [191]
    The matter was properly brought by the Board before the tribunal and the sanction to be imposed was a matter properly determined by the tribunal.  Further, the Board submits that it is registrant funded and has limited resources. 
  7. [192]
    On behalf of Dr Blomeley, it was submitted that the Board’s conduct caused the disciplinary proceedings to be split resulting in extra cost to Dr Blomeley.  However, Dr Blomeley was the only person who knew the full extent of the information and chose to remain silent.  In those circumstances, it is difficult to have any regard to a complaint about the incurrence of additional costs by him as a result of the way the proceedings progressed.
  8. [193]
    Given the seriousness of the allegations, the undisputed need for legal representation, the strength of the Board’s case and that the proceedings were prolonged by Dr Blomeley’s denials which were all ultimately unsuccessful, the Tribunal considers that the interests of justice make it appropriate that there be an order that Dr Blomeley pay the Board’s costs of the proceedings.
  9. [194]
    No submissions were made suggesting that the Tribunal should fix the amount of costs.  Absent submissions, given the complexity of the matter, it would not be possible for the Tribunal to fix costs.
  10. [195]
    The appropriate order, absent the amount of costs being agreed, is for costs to be assessed on the District Court Scale.

Orders

  1. [196]
    Accordingly, the Tribunal orders that:
    1. Pursuant to s 196(1)(b)(iii) of the Health Practitioner Regulation National Law (Queensland), the Tribunal finds Dr Blomeley has behaved in a way that constitutes professional misconduct.
    2. Pursuant to s 196(2)(e) of the Health Practitioner Regulation National Law (Queensland), Dr Blomeley’s registration is cancelled, effective from 20 July 2018.
    3. Pursuant to s 196(4)(a) of the Health Practitioner Regulation National Law (Queensland), Dr Blomeley is disqualified from applying for registration for a period of four years, commencing on and from 20 July 2018.
    4. Dr Blomeley is to pay the Medical Board of Australia’s costs of and incidental to these proceedings, to be agreed or, failing agreement, to be assessed on the District Court scale.
    5. The costs shall be assessed by an assessor to be agreed between the parties or, failing agreement, appointed by the Tribunal.
    6. Dr Blomeley shall pay the costs (as agreed or as assessed) within 28 days of receipt of such agreement or assessment, or such longer period as may be agreed between the parties. 

Footnotes

[1] Statement of agreed facts dated 16 September 2016, p 2.

[2] Further amended referral dated 31 August 2016, [6].

[3] Affidavit of Dr Blomeley dated 13 December 2013, [11].

[4] Letter from AHPRA to respondent’s solicitors dated 11 November 2013.

[5] Applicant’s submissions dated 27 June 2018, 2-3.

[6] Respondent’s submissions dated 25 November 2013, [5].

[7] Respondent’s submissions dated 25 November 2013, [7].

[8] Decision of Queensland Medical Interim Notifications Group dated 5 November 2013.

[9] (1938) 60 CLR 336, 361–62.

[10] Hearing brief, 1186, JJW Patient Health Summary; Applicant’s submissions dated 27 June 2017, [13].

[11] Further amended referral dated 31 August 2016, annexure RN-1; Agreed summary of telephone calls to/from telephone numbers associated with the respondent and JJW.  

[12] Respondent’s submissions dated 25 November 2013, [12].

[13] Affidavit of Neville Blomeley dated 6 December 2016, [37].

[14] National Law, s 5.

[15] Clyne v NSW Bar Association (1960) 104 CLR 116; NSW Bar Association v Evatt (1968) 117 CLR 177, 183; Medical Board of Australia v Dolar [2012] QCAT 271, [30]. 

[16] Health Ombudsman Act 2013 (Qld), s 4(1). 

[17] HCCC v King [2013] NSWMT 9.

[18] Legal Profession Complaints Committee and A Legal Practitioner [2013] WASAT 37(S), [35].

[19] Mill v R (1988) 166 CLR 59.

[20] Respondent’s submissions dated 11 July 2017, [94].

[21] Respondent’s submissions dated 11 July 2017, [96].

[22] Respondent’s submissions dated 11 July 2017, [97].

[23] Applicant’s submissions in reply dated 14 July 2017, [64].

[24] LSC v Williams [2005] LPT 008; Stirling v LSC [2013] VSCA 374; Quinn v Law Institute of Victoria Ltd [2007] VSCA 122.

[25] Exhibit 2, dated 6 June 2017. 

[26] [2015] QCAT 522 (Isgrove).

[27] [2013] QCAT 608 (Love).

[28] [2016] QCAT 259 (Shahinper); Upheld on appeal Shahinper v Psychology Board of Australia [2017] QCA 096.

[29] [2013] QCAT 608.

[30] [2017] QCAT 156 (Azam).

[31] QCAT Act, s 102(1). 

[32] Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2) [2010] QCAT 412, [4] (Ralacom).

[33] Medical Board of Australia v Wong [2017] QCA 42, [35]. 

[34] Medical Board of Australia v Alroe [2016] QCA 120, [19]. 

[35] [2010] QCAT 412, [29].

Close

Editorial Notes

  • Published Case Name:

    Medical Board of Australia v Neville Raymond Blomeley

  • Shortened Case Name:

    Medical Board of Australia v Blomeley

  • MNC:

    [2018] QCAT 163

  • Court:

    QCAT

  • Judge(s):

    Sheridan DP

  • Date:

    21 Jun 2018

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Briginshaw v Briginshaw (1938) 60 C.L.R 336
2 citations
Jump To
Cite 1 - (1938) 60 C.L.R 336
Cite 2 - (1938) 60 C.L.R 336
Clyne v NSW Bar Association (1960) 104 CLR 116
1 citation
Jump To
Cite 1 - (1960) 104 CLR 116
Health Care Complaints Commission v King [2013] NSWMT 9
1 citation
Jump To
Cite 1 - [2013] NSWMT 9
LEGAL PROFESSION COMPLAINTS COMMITTEE and A LEGAL PRACTITIONER [2013] WASAT 37
1 citation
Jump To
Cite 1 - [2013] WASAT 37
Legal Services Commission v Williams [2005] LPT 8
1 citation
Jump To
Cite 1 - [2005] LPT 8
Medical Board of Australia v Alroe [2016] QCA 120
1 citation
Jump To
Cite 1 - [2016] QCA 120
Medical Board of Australia v Azam [2017] QCAT 156
1 citation
Jump To
Cite 1 - [2017] QCAT 156
Medical Board of Australia v Dolar [2012] QCAT 271
1 citation
Jump To
Cite 1 - [2012] QCAT 271
Medical Board of Australia v Love [2013] QCAT 608
3 citations
Jump To
Cite 1 - [2013] QCAT 608
Cite 2 - [2013] QCAT 608
Cite 3 - [2013] QCAT 608
Medical Board of Australia v Wong [2017] QCA 42
1 citation
Jump To
Cite 1 - [2017] QCA 42
Mill v R (1988) 166 CLR 59
1 citation
Jump To
Cite 1 - (1988) 166 CLR 59
New South Wales Bar Association v Evatt (1968) 117 CLR 177
1 citation
Jump To
Cite 1 - (1968) 117 CLR 177
Nursing and Midwifery Board of Australia v Isgrove [2015] QCAT 522
2 citations
Jump To
Cite 1 - [2015] QCAT 522
Cite 2 - [2015] QCAT 522
Psychology Board of Australia v Shahinper [2016] QCAT 259
2 citations
Jump To
Cite 1 - [2016] QCAT 259
Cite 2 - [2016] QCAT 259
Quinn v Law Institute of Victoria Ltd [2007] VSCA 122
1 citation
Jump To
Cite 1 - [2007] VSCA 122
Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2) [2010] QCAT 412
2 citations
Jump To
Cite 1 - [2010] QCAT 412
Cite 2 - [2010] QCAT 412
Shahinper v Psychology Board of Australia [2017] QCA 96
1 citation
Jump To
Cite 1 - [2017] QCA 96
Stirling v Legal Services Commissioner [2013] VSCA 374
1 citation
Jump To
Cite 1 - [2013] VSCA 374

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Health Ombudsman v ANP [2022] QCAT 61 citation
Health Ombudsman v APR [2025] QCAT 1032 citations
Health Ombudsman v Bevins [2025] QCAT 1022 citations
Health Ombudsman v Bryant [2020] QCAT 2182 citations
Health Ombudsman v Chang [2022] QCAT 581 citation
Health Ombudsman v ECA [2020] QCAT 2162 citations
Health Ombudsman v Edwards [2021] QCAT 3051 citation
Health Ombudsman v Erasmus [2020] QCAT 1672 citations
Health Ombudsman v Fletcher [2021] QCAT 41 citation
Health Ombudsman v Flyger [2019] QCAT 3291 citation
Health Ombudsman v FYJ [2022] QCAT 921 citation
Health Ombudsman v Hardy [2018] QCAT 4161 citation
Health Ombudsman v HPT [2019] QCAT 1141 citation
Health Ombudsman v Kootval [2020] QCAT 4881 citation
Health Ombudsman v Lemon [2020] QCAT 2661 citation
Health Ombudsman v Martin [2020] QCAT 3501 citation
Health Ombudsman v McDonald [2025] QCAT 1702 citations
Health Ombudsman v MKL [2022] QCAT 1311 citation
Health Ombudsman v Montalvo [2020] QCAT 3171 citation
Health Ombudsman v NPT [2020] QCAT 2671 citation
Health Ombudsman v Obet [2020] QCAT 3382 citations
Health Ombudsman v RCM [2022] QCAT 592 citations
Health Ombudsman v Sandhu [2021] QCAT 2921 citation
Health Ombudsman v Saurels [2021] QCAT 2641 citation
Health Ombudsman v Self [2022] QCAT 1322 citations
Health Ombudsman v Shemer [2019] QCAT 532 citations
Health Ombudsman v Stibbard [2022] QCAT 931 citation
Health Ombudsman v Tooth [2020] QCAT 4631 citation
Health Ombudsman v Vale [2020] QCAT 3632 citations
Health Ombudsman v White [2019] QCAT 361 citation
Medical Board of Australia v Bradford [2023] QCAT 291 citation
Medical Board of Australia v Hodgkinson [2021] QCAT 3251 citation
Medical Board of Australia v Nguyen [2021] QCAT 3461 citation
Medical Board of Australia v QLX [2023] QCAT 601 citation
Medical Board of Australia v RTF [2018] QCAT 3232 citations
Medical Board of Australia v TXA (No 3) [2023] QCAT 2611 citation
Medical Board of Australia v Valerie Cole [2019] QCAT 1131 citation
Nursing and Midwifery Board of Australia v Bannister [2021] QCAT 552 citations
Nursing and Midwifery Board of Australia v Lockie [2022] QCAT 3912 citations
Nursing and Midwifery Board of Australia v Sellen [2020] QCAT 3181 citation
Nursing and Midwifery Board of Australia v Williams [2021] QCAT 3071 citation
Paramedicine Board of Australia v Loveridge [2025] QCAT 1011 citation
Pharmacy Board of Australia v RKE [2025] QCAT 1582 citations
Psychology Board of Australia v Carmichael [2025] QCAT 92 citations
Psychology Board of Australia v Howard [2025] QCAT 2352 citations
The Health Ombudsman v Masamba [2019] QCAT 2272 citations
The Health Ombudsman v Wabersinke [2019] QCAT 1561 citation
1

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