Health Ombudsman v Erasmus[2020] QCAT 167

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   This is a reference by the applicant of disciplinary proceedings against the respondent under the Health Ombudsman Act 2013, s 103(1)(a) and s 104.  Under s 126 of that Act, I constitute the Tribunal.  I am assisted by assessors, Mr Brimstone, Dr French and Dr Thorley in accordance with the Act, s 126.  Their function is to advise me in relation to questions of fact: s 127.  The matter was originally listed for hearing today but this was changed to a hearing on the papers.  
2. [2]
   The respondent was registered to practise as a psychologist and was therefore a registered health practitioner for the purposes of the Health Practitioner Regulation National Law (Queensland).  The applicant alleges that the respondent engaged in professional misconduct in a particular matter or, in the alternative, unprofessional conduct in that matter.  The applicant alleges that the respondent had a sexual relationship with a person whom he was treating as a patient between 2011 and 2013 and that he had a sexual relationship with a second person whom he was treating as a patient in 2015 and 2016, which relationship continued after he ceased to treat her as a patient.  Further, he disclosed to the first patient confidential information about another patient.  
3. [3]
   The respondent was registered to practise as a psychologist until he failed to renew his registration on 1 December 2015.  He obtained non-practising registration on 21 December 2016.  In May 2017, he reapplied for registration but disclosed that he had been diagnosed with depression.  The board required him to undergo an independent health assessment and, in response, he applied for non-practising registration, which was approved.  He failed to renew that registration on 11 December 2017.  This matter can proceed despite that: Health Ombudsman Act 2013, s 21(2).  
4. [4]
   The respondent admitted that there was a sexual relationship with the first patient but alleged that it commenced only in mid-January 2011 in circumstances where the last treatment had been provided on 10 December 2010. He claimed that there was no suggestion of any relationship outside the professional relationship prior to the end of the professional relationship, and that the first step towards developing a nonprofessional relationship was taken by that patient. He conceded that the sexual relationship continued until mid-2013. During this time, each of them had a current spouse with whom he or she had children. Both parties separated from their spouses as a result of this relationship.
5. [5]
   In written submissions dated 31 July 2015 sent by solicitors for the respondent, he acknowledged that he had breached the relevant ethical boundaries and claimed that he had never developed such a relationship before this or since. He claimed that at the time he had a heavy workload which he had since reduced, and that he had undertaken further training.

   Factual Background

   1. [6]
      The respondent was trained in South Africa. He was first registered as a psychologist in Queensland on 20 May 2004. He is currently 49 years old. In 2010, he was carrying on a private psychology practice. The first patient was referred to the respondent by her general practitioner in August 2010 because of depression and seen nine times for therapy between August and December 2010. She was treated for depression and was taking antidepressants at times during that period. He provided cognitive behavioural therapy and sleep strategies. By the last visit he thought that she no longer needed treatment, having improved over several sessions.
   2. [7]
      During the second last visit, the patient told the respondent that she had feelings for him. He spoke to a mentor, who advised him to terminate the treating relationship. At the end of the last session, he and the patient talked for some time, and he invited her to contact him, if she wanted to, for more therapy or to clarify matters. This implied that some therapy could be provided in future social conversations.
   8. [8]
      The patient said that during the last session she told the respondent she wanted to continue seeing him, and he suggested that they could meet informally, such as at cafés. Subsequently, she emailed him, suggesting that there was some feeling between them, and he had replied that there were feelings there and he wanted to continue seeing her. They exchanged emails for about a month, then met for coffee and, on that occasion, they kissed. She said he told her not to make an appointment to see him and that he could be disbarred for seeing a patient within two years. She said they first had sex in mid-January when she visited him at his office. He also visited her at her home and they had weekends together.
   9. [9]
      The respondent denied that the last session included such an exchange and spoke of matters progressing more slowly, but agreed that the relationship became sexual from mid-January 2011, a little more than a month after the last session. He agreed that they had had sex at his office but did not recall that it happened there on the first occasion. He was not aware of her having any continuing mental difficulties and believed she was not on medication.
   10. [10]
       The patient advised in 2017 that she was not taking medication for depression or receiving treatment for any mental health matter during the relationship. The respondent separated from his wife but it appears that the patient was dissatisfied with his level of commitment to her, and she broke off the relationship in mid-2013. In June 2015, she disclosed the relationship to her psychiatrist, who made the first complaint. It appears that, by then, her psychiatric state had deteriorated.
   11. [11]
       The patient claimed that the respondent spoke to her about a number of other patients, including one she knew from a gym class, and told her what difficulties that patient was having. The respondent claimed that he just told her that the other person was also a patient of his and for that reason he did not want to come to her gym class, but he said he did not tell her anything she did not already know.
   12. [12]
       In an interview on 13 July 2016, he appeared to concede that he did tell her some information about the other patient’s condition (see page 10). He also allowed her to look at his phone which had messages from other patients. In that interview, he advised that he had closed his private practice and proposed to leave the health sector. In September 2016, he self-notified that he was receiving treatment for depression.
   13. [13]
       The second patient was referred to the respondent in the latter part of 2010 for depression, for which she was also receiving medication from her GP. She found his treatment very helpful and was able to decrease and, eventually, cease the medication and, in April 2011, ceased therapy, feeling much better. She was grateful to the respondent for his support. In early 2013, however, her condition deteriorated again and, in about March 2013, she asked to be referred to the respondent again. She saw the respondent on 25 February 2013 and found his treatment helpful, and continued to see him at times. In February 2015, she disclosed to the respondent that she had feelings for him. He advised her to seek alternative treatment and was advised by a supervisor to cease treating her, but he continued to treat her until 6 May 2015.
   14. [14]
       She said that they began to go out for coffee together in May 2015 and, on one occasion, he hugged and kissed her. The relationship developed and they had sex on about 1 June 2015. He later told her he could no longer be her therapist. The relationship continued but was not prolonged. It appears to have been subsisting at the time he provided the statement dated 31 July 2015 concerning the first patient, in which it was not disclosed. It appears that he broke off the relationship in September or October 2015 as a result of the investigation into the complaint about the first patient. Initially, she resisted this, then she also wanted to break it off, but, in April 2016, it became sexual again. In October 2016, she finally terminated the relationship.
   15. [15]
       During this period, the respondent was interviewed about the first patient on 13 June 2016 and made a further submission on 12 July 2016 without referring to the second patient. The second patient has since received further treatment from a psychologist and a psychiatrist. She made a complaint about the respondent on 13 February 2017.
   16. [16]
       In an interview on 23 February 2018, the respondent admitted the relationship but said that she had ceased to be his patient at the time it started as a social relationship. He admitted that the relationship was wrong, but said that he was himself suffering from depression at the time and had no insight into his condition. The respondent has advised the Tribunal that he does not contest the application and does not oppose a period of disqualification of the order of two to three years.

   Analysis

   17. [17]
       I am conscious of the definition of “professional misconduct” in the National Law, s 5, and of the content of the Australian Psychological Society Code of Ethics, particularly the propositions that the welfare of the client and the standing of the profession take precedence over the psychologist’s self-interest and that a psychologist must establish and maintain proper professional boundaries with clients. Clearly, the respondent did not do this. It is not appropriate for psychologists to develop a personal relationship with a patient, even if the relationship does not become intimate. That involves a failure to maintain proper boundaries and some exploitation of the professional relationship in the respondent’s interest. That is so even if it is the patient who initiates the relationship and is keen for it to continue.
   18. [18]
       In the present case, the fact that there were two such relationships and that both became intimate are serious features because of the increased risk of psychiatric harm to the patient from the relationship, as appears to have occurred here. It is also clear that the respondent acted in this way despite a consciousness of the inappropriateness of his conduct and the prospect of disciplinary action. Each time he acted, and continued to act, in a way that he knew was wrong, despite having the benefit of a professional mentor. He was not frank with the investigation into the complaint of the first patient in claiming that he had otherwise handled matters appropriately before and since, despite the existence of the relationship with the second patient. This was dishonest and demonstrated a lack of remorse.
   19. [19]
       Both relationships continued over a period of years and both started soon after the professional relationship ceased and both had adverse impacts on the former patient.  For a registered practitioner to maintain a sexual relationship with a patient, or former patient, has commonly been held to amount to professional misconduct.  See, for example, Medical Board of Australia v Blomeley [2014] QCAT 160 at [19], [35], Psychology Board of Australia v Wakelin [2014] QCAT 516 at [22].  
   20. [20]
       In the present case, the total behaviour of the respondent justifies a decision that his conduct amounted to professional misconduct.  As noted in Blomeley, supra at [35], there have been a range of suspensions imposed in cases where the practitioner was still registered.  In Medical Board of Australia v Blomeley (No 2) [2018] QCAT 163, the registration of the respondent was cancelled and he was disqualified from applying for registration for four years.  The respondent had continued a relationship with the same patient and had provided incorrect and misleading information to a doctor, which was the basis of a report which was provided to the Board by the respondent, so that the respondent adopted it.  The Tribunal also found that there was a level of intimacy to the relationship not admitted by the respondent before the Tribunal.  The sanction was, in practice, in addition to the sanction imposed in the earlier case.  
   21. [21]
       The respondent in this case is no longer registered and has not been for some time.  To the extent that there has been a de facto suspension of his practice since December 2015, that is a relevant factor when determining what order the Tribunal should make.^[1]  On the other hand, there is no material before the Tribunal as to the extent to which the respondent was unable to practise anyway during this period because of his depression and whether he is now fit to practise.  There has also been no clear indication of effective rehabilitation of the respondent, or any material showing prospects of rehabilitation.  The stated intention of the respondent to leave the healthcare field suggests he is not taking steps to rehabilitate.  It also means that the delay in this matter is not of significance.  
   22. [22]
       In imposing a sanction, the health and safety of the public are paramount.  Relevant considerations include both personal and general deterrence, the maintenance of professional standards and the maintenance of public confidence.  In all the circumstances, the Tribunal considers that an appropriate sanction is a reprimand and a disqualification from registration for a period of three years.  
   23. [22]
       The Tribunal, therefore, makes the following decision:
   1. The Tribunal decides that the respondent has behaved in a way that constituted professional misconduct in that he engaged in conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or expertise.
   2. The Tribunal reprimands the practitioner.
   3. The Tribunal decides to disqualify the practitioner from applying for registration as a registered health practitioner for a period of three years.
   4. The parties bear their own costs of this proceeding.