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- Unreported Judgment
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Peters v Medical Board of Australia  QCAT 169
Medical board of australia
Occupational regulation matters
11 June 2020
28 May 2020 (On the papers)
Judicial Member Robertson
HEALTH PRACTITIONER – MEDICAL PRACTIONER – CONDITIONS ON REGISTRATION
Where the Board determined that it had a reasonable belief that the applicant by his conduct was a serious risk to persons and took immediate action and imposed gender-based conditions on his registration – where applicant contends that the material before the Board was insufficient to require such action – where the applicant applies to the Tribunal to review the action
HEALTH PRACTITIONER – MEDICAL PRACTITIONER – CONDITIONS ON REGISTRATION - ALLEGATIONS OF BOUNDARY VIOLATIONS INVOLVING SEXUAL ASSAULT AND/OR MISCONDUCT
Where patient of the applicant complained shortly after a consultation with him at the hospital that he had touched her in a sexual way and made sexualised comments and taken photographs of her naked body on his mobile phone – where patient had previously had a good therapeutic relationship with the applicant over 12 months – where applicant is a senior medical officer in dermatology – whether on all the material the Tribunal holds a reasonable belief that he poses a serious risk to patients because of his conduct – where complaint made to police of sexual assault – where police conducted a thorough investigation and decided not to lay charges – where applicant was allowed to return to work and his employer imposed mandatory chaperone conditions on his practice in relation to female patients – where Board took immediate action and imposed gender based conditions which lead to his suspension again from work – where applicant has taken considerable steps to address the issues behind the immediate action – whether immediate action was punitive - where Board has commenced a disciplinary investigation which is on-going
Health Practitioner Regulation National Law 2009 (Queensland), s 156
Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 33
AMS v. Medical Radiation Practice Board of Australia (No 2)  QCAT 401
CCC v Lee  QCATA 38
Gupta v. Medical Board of Australia  SAHPT 6
Health Ombudsman v Kirk  QCAT 301
Ladhams v. Medical Board of Australia (No 2)  QCAT 286
Pearse v. Medical Board of Australia  QCAT 392
Shahinper v Psychology Board of Australia  QCAT 593
Oglesby v Nursing & Midwifery Board of Australia  QCAT 701
Ord v. Nursing and Midwifery Board of Australia (No. 2)  QCAT 102
Health Ombudsman v Passmore  QCAT 92
The Registrant v A Health Profession Board of Australia  QCAT 485
WD v. Medical Board of Australia  QCAT 614
Mr Joshua R Jones with Mr Nathan D Boyd instructed by K & L Gates
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)
REASONS FOR DECISION
- On the 25th February 2020, the Medical Board of Australia (the Board) notified Dr Peters, the applicant in these proceedings, of its decision, effective immediately, to take immediate action under section 156 of the Health Practitioner Regulation National Law (the National Law), and impose gender-based restrictions on his registration as a medical practitioner, which practically provide that he must not have any contact with female patients and must practice only at approved practice locations.
- Although the notification advised Dr Peters that the Board’s decision is an appealable decision , it is common ground that pursuant to s. 33 of the Queensland Civil and Administrative Tribunal Act 2009 (the QCAT Act), Dr Peters has the right to apply to review the decision of the Board, it being a reviewable decision under the QCAT Act.
- On 12th March, Dr Peters filed an application to review the Board’s decision to impose gender-based conditions which application was heard by me on the 28th May as the Judicial Member constituting the Tribunal assisted by assessors Dr Phipps, Dr Chew and Ms Ashcroft. I adjourned the application to a date to be fixed to enable me to consider the matter it not being amenable to an ex tempore decision.
The Correct Legal approach
- Reviews of s. 156 National Law decisions effectively involve a two-limb assessment as discussed in Pearse v. Medical Board of Australia  QCAT 392 in which Deputy President Judge Horneman-Wren SC explained:
 Because it is conducting a fresh hearing on the merits the Tribunal must determine whether it holds a reasonable belief that because of Dr Pearse's conduct he poses a serious risk to persons, and that it is necessary to take immediate action in the form of imposing the conditions in the terms now sought by the Board to protect public health and safety. The proper approach to those issues to be taken by the Tribunal has been considered in a number of cases.
- In WD v. Medical Board of Australia  QCAT 614 the Deputy President set out those principles and cases referred to in Pearse above:
 ...Such a review is to be conducted as a full de novo hearing on the material before the Tribunal; not that which was before the Board. It permits consideration of matters which have occurred since the time which the decision of the Board was taken. The purpose of the review is to produce the correct and preferable decision.
 In these proceedings, the Tribunal must determine whether it holds a reasonable belief that because of WD's conduct or health she poses a serious risk to persons, and that it is necessary to take immediate action in the form of the suspension of her registration to protect public health and safety.
 In Pearse v Medical Board of Australia  QCAT 392 at - the Tribunal cited with approval the observations of the South Australian Health Practitioners Tribunal in I v Medical Board of Australia  SAHPT 18, the Supreme Court of New South Wales in Lindsay v NSW Medical Board (2008) NSWSCR 40, and the Western Australia Administrative Tribunal in Liddell v Medical Board of Australia  WASAT 120, as to the proper approach to be taken by the Tribunal in determining the issues which arise in an immediate action matter. That approach may be summarized as follows:
- an immediate action order does not entail a detailed enquiry, ·
- it requires action on an urgent basis because of the need to protect public health and safety;
- the taking of immediate action does not require proof of the conduct; but rather whether there is a reasonable belief that the registrant poses a serious risk;
- an immediate action order might be based on material that would not conventionally be considered as strictly evidentiary in nature, for example, complaints and allegations;
- the mere fact and seriousness of the charges, supported by the untested statements of witnesses, in a particular case, might well be sufficient to create the necessary reasonable belief as to the existence of risk, ·
- the material available should be carefully scrutinised in order to determine the weight to be attached to it;
- a complaint that is trivial or misconceived on its face will clearly not be given weight;
- the nature of the allegations will be highly relevant to the issue of whether the order is justified.
- In Ord v. Nursing and Midwifery Board of Australia (No. 2)  QCAT 102, the Tribunal commented upon the relevance of the urgency of the s. 156 decision making process vis a vis the nature of the assessment which must necessarily be made by the Board:
 A review of a decision of a Board to take immediate action is somewhat different to a disciplinary proceeding. Often, as I have already observed, the decision will, quite reasonably, have been taken quickly and on limited material. Such a decision will be in accord with the Board's duty to protect the public. By contrast, a decision to prosecute a disciplinary charge against a practitioner will usually be made after a thorough investigation and with an understanding of the practitioner's response to the allegations and of the available evidence in support of the allegations (and often in defence of them also).
- The correctness of this approach has been confirmed in Gupta v. Medical Board of Australia  SAHPT 6, including that the nature of the allegations themselves may be sufficient on the interim basis to make out the requisite threshold of "serious risk":
 Section 156(1) establishes a two limbed approach, namely the Board reasonably believes the conduct poses a serious risk to persons and it is necessary to take immediate action to protect public health or safety. The seriousness of the allegations, and the nature of the conduct alleged, are sufficient to underpin a reasonable belief that the appellant poses a serious risk to persons, and in the absence of any explanation or other material which undermines the patient's allegations, it was necessary to take immediate action.
- The task of the Tribunal, if the first limb is made out, is effectively that explained in Ladhams v. Medical Board of Australia (No 2)  QCAT 286:
 The Tribunal must decide, on the material before it, whether it reasonably believes that because of his conduct or pe1formance, Dr Ladhams poses a serious risk to persons, and that it is necessary to take immediate action to protect public health and safety. This requires identification of any serious risk posed and the particular aspects of Dr Ladhams' conduct or performance which caused or cause that risk. It also requires, if relevant risk is identified, identification of the particular action necessary to protect public health and safety.
 ... Although not an appeal as such from the Board's decision, this proceeding can be informed by the approach taken by the Board: see Pearse at ; Shahinper v Psychology Board of Australia  QCAT 593 at .
 I also believe that, given these risks, it is necessary to impose conditions of Dr Ladhams' registration. I do not, however, believe that the conditions presently imposed upon Dr Ladhams, or those now proposed by the Board, are appropriate to manage the identified risks. Any conditions imposed should address the relevant risks specifically, and otherwise be the least onerous possible: see Shahinper v Psychology Board of Australia  QCAT 593 and Azam v Medical Board of Australia  QCAT 611.
- In AMS v. Medical Radiation Practice Board of Australia (No 2)  QCAT 401, Judge Allen QC considered the meaning of "reasonable belief' in the context of the National Law:
" I am required to determine whether, pursuant to s 78(l)(a)(i) of the National Law, I reasonably believe that the way the practitioner practises the health profession or the practitioner's professional conduct is or may be unsatisfactory. In doing so, I need to have regard to the principle that the health and safety of the public are paramount and that restrictions on the practice of a health profession are to be imposed only as fit as is necessary to ensure health services are provided safely and are of an appropriate quality.
 With respect to the terms of s 178(l)(a) of the National Law, I note that "belief' is the inclination of the mind towards assenting to rather than rejecting s a proposition.
 In Oglesby v Nursing & Midwifery Board of Australia  QCAT 701, Horneman-Wren SC; DCJ, Deputy President, stated as follows at , in the context of immediate action:
I am not of the view that it is necessary to be satisfied that certain conduct will be engaged in by a registered health practitioner before the reasonable belief can be held that the practitioner poses a risk to persons. In my view, it is not even necessary to be satisfied that it is more probable than not that the practitioner will engage in some conduct in the future. In my view, a reasonable belief may be held that a practitioner poses a serious risk to persons if, based upon evidence of past conduct, there is a real possibility that the practitioner will engage in conduct which could be harmful to persons. If the possibility of engaging in the conduct was so remote as to be fanciful, or the possible harm trivial, then I would not think that a belief could reasonably be held that the practitioner posed a serious risk to persons. "
- The fact that conditions may act in a detrimental manner upon a relevant practitioner's ability to practise do not automatically render them inappropriate. As Deputy President Horneman-Wren SC in The Registrant v A Health Profession Board of Australia  QCAT 485 held:
 It is quite clear from the evidence before the Tribunal on this occasion that the orders have had the practical effect of impacting detrimentally on the Registrant's ability to practise. That detrimental effect goes beyond that which is necessary to protect the public and the profession. It has become punitive.
 The requirement to disclose the conditions to all employees within a practice in which the Registrant works has proven particularly problematic. Once informed, those employees react adversely to the Registrant. There is documentary evidence which supports the Registrant's evidence in that regard. These documents demonstrate the very fact of which he complains. That is, that prospective employers who are otherwise considering his services withdraw offers or cease to be inclined to employ him once those conditions (including particularly that all employees in the practice must also be told) are revealed.
 Of course, the mere fact that conditions operate with this practical effect would not mean that they ought be removed or varied if they remained necessary or appropriate to achieve the protective purposes referred to above. Inherent in conditions being imposed upon a practitioner's registration is that this will impact upon the practitioner's ability to practice. It remains necessary and appropriate for any employer of the Registrant to be aware of the Tribunal's order and any conditions imposed.
- In Health Ombudsman v Kirk  QCAT 301 by reference to the concept of “serious risk” in the Health Ombudsman Act 2013, his Honour Judge Allen QC said (at ):
The term, “serious risk”, is not defined in the HO Act, the National Law or the Acts Interpretation Act 1954. The term therefore takes its ordinary meaning in its statutory context. The word, “serious”, is defined in the Macquarie Dictionary as:
“Of grave aspect; weighty or important; giving cause for apprehension; critical; to be considered as an extreme example of its kind.”
The Background to the Board’s Decision
- At all relevant times, Dr Peters was working as a senior medical officer in the Department of Dermatology at the Gold Coast University Hospital (the GCH).
- Dr Peters has been employed at the GCH dermatology clinic since 2015. He has never been subject to a notification or complaint prior to the 5th December.
- His role as at 5 December 2019 was a senior medical officer in the Department of Dermatology. This role entailed being on call five days per week in the dermatology clinic. Due to the size of the catchment area of the GCH, Dr Peters expertise was utilised by general practitioners covering a wide region around the Gold Coast and northern New South Wales.
- In his work at the GCH Dr Peters saw a diversity of patients, ranging from premature neonatal to geriatric. He provides joint clinics in plastic surgery, vascular wounds and stomal therapy.
- It is in this capacity that he came to treat JJK. JJK is a 20-year-old female. JJK first attended upon Dr Peters for treatment of psoriasis in December 2018 / early 2019.
- JJK attended upon the GCH for Ultraviolet (UV) treatment for her psoriasis on a weekly basis for six months during 2019. This was done under the direction of Dr Peters, who would regularly see JJK when she attended for treatment.
- The UV treatment had good results for JJK. She ceased the UV treatment and commenced natural remedies. After two months, her psoriasis returned. JJK again attended upon Dr Peters for treatment.
- On 4 December 2019, JJK sent Dr Peters photographs of her skin condition via text message. He advised her to attend the hospital, which she did on 5 December 2019.She told him on the 4th by text that her condition had worsened and she wasn’t sleeping and it was causing her psychological stress (she said she was at her “wits end”).
- Until 5 December 2019, JJK and Dr Peters enjoyed a positive therapeutic relationship.
- Following the consultation on 5 December 2019, JJK made a complaint to the GCH by email. Her husband also made a verbal complaint to the GCH in similar terms.
- Dr Peters was suspended pending investigation by GCH on 5 December 2019.
- On 7 December 2019, JJK made a statement to police. A police investigation followed, and Dr Peters was cleared of any criminal conduct.
- Dr Peters returned to work at GCH in late January 2020, where he continued until the immediate action decision took effect on 25 February 2020. The GCH had imposed chaperone conditions on his work in relation to female patients. As a result of the Board’s decision he was unable to work at GCH and has been out of work since.
- As the Tribunal is conducting a fresh hearing on the merits, the Tribunal must decide whether or not it holds a reasonable belief, based on the material and evidence before it, that Dr Peters, because of his conduct on the 5th December 2019 in the consultation room in the hospital, poses a serious risk to persons, and that it is necessary to take immediate action in the form of imposing conditions to protect public health and safety.
- The “fresh” material, not before the Board on the 24th February when it held its meeting leading to the 25th February decision is:
- (a)Affidavit of Peter Peters sworn 11 May
- (b)Affidavit of Carly Traegar (Dr Peter’s lawyer) sworn 11 May
- (c)Statement of Dr Michael Freeman dated 6th May (He is the Director of Dermatology at the hospital and Dr Peter’s supervisor)
- (d)Report of Dr James Muir dated 5th May (He is a dermatologist in private practice)
- (e)Affidavit of Peter Peters sworn 11 May
- (f)Affidavit of Carly Traegar sworn 11 May
- (g)Affidavit of Peter Peters sworn 28 May (this was filed in response to an email from Judge Allen QC’s Associate sent at my direction to the parties on the 27th May)
The Board’s Decision
- In its reasons for the decision the Board set out (at 1.) a summary of the reasons for its decision.
- Based on the information before it, including Dr Peters' written submissions in response to the proposed immediate action, the Board continued to form a reasonable belief that, because of Dr Peters' conduct, he poses a serious risk to persons because there are objective circumstances that support a reasonable belief that, on 5 December 2019, during a consultation, Dr Peters engaged in boundary violations with patient JJK by:
- (a)Asking (her) to undress more times than was necessary,
- (b)Attempting to undress and dress (her)himself,
- (c)On numerous occasions, during his physical examination of (her), touching her body without clinical justification, without informed consent and in a sexual way,
- (d)Taking photographs of (her) body on his personal mobile phone, and
- (e)Making sexualised remarks to (her).
- The detail of the basis for its decision as summarized in 1 can be gleaned from 5-13 of its reasons for decision:
“5. The information available indicates that, in the lead up to the events on 5 December 2019, JJK had seen Dr Peters for twelve months with relation to her diagnosed psoriasis. She explains that during the consultation on 5 December 2019, Dr Peters behaved differently to all other consultations in that, on numerous occasions, he engaged in sexualised behaviours toward her. It is alleged that during the consultation Dr Peters asked (her) to undress more times than was necessary and on three separate occasions. The first occasion was for an examination, the second to score the areas of her psoriasis and the third, to take photographs of her, which Dr Peters has acknowledged. The Board had regard to Dr Peters' submissions however did not accept that it was clinically necessary for him to ask (JJK) to undress on three separate occasions in the one consultation.
- (JJK) alleges in detail that each time she undressed, Dr Peters touched her body, including her breasts, stomach, pelvic area and thighs, without her consent and in a manner that was unnecessary and, made her feel uncomfortable. (JJK) indicates that Dr Peters had never touched her this way before. The Board noted Dr Peters submits that, the first time (she) undressed, he palpated her arms only to determine the nature of the rash. Further, that he only visually examined and did not touch (her) chest, breasts, and stomach at this time. Dr Peters has not provided any detail about his visual and physical examinations of (her) during the second and third time she undressed.
- It is alleged that at various times during the consultation Dr Peters attempted to undress and dress (JJK). During the second time she undressed, it is alleged that Dr Peters attempted to pull her tights down to expose her vagina, notwithstanding she had advised him she did not have any psoriasis near her vagina. During the third time she undressed, it is alleged Dr Peters pulled (her) underwear down to her ankles and asked her to walk to the other side of the room for "progress" photographs. The Board noted that Dr Peters disputes all events as alleged by (JJK), however acknowledges that, at various times during the consultation, he assisted (her) to undress and redress. Dr Peters submits that he did so because (she) was physically struggling and that he asked for and she provided consent each time.
- It is alleged that, after Dr Peters asked (JJK) to walk to the other side of the room, he pulled a curtain across behind (her) and commented, "a fancy backdrop". The Board noted Dr Peters disputes that he described the curtain as fancy. It is alleged Dr Peters then proceeded to photograph (her) naked body on his personal mobile phone. (JJK) indicates that Dr Peters had not previously taken progress photographs of her. The Board noted Dr Peters explains that clinical photographs were necessary to allow for monitoring and progress whilst under active treatment and, to allow for discussions with the Director of Dermatology as to his thoughts regarding whether (JJK’s) presentation represented psoriasis or was an eczematous presentation. The Board noted however that Dr Peters did not record any notes in (her) clinical record indicating he had contemplated any secondary diagnosis on 5 December 2019. Further, Dr Peters explains that the hospital does not have a fully functioning clinical photography unit, which is why he takes photographs on his personal mobile phone and stores the photographs in a secure application. Dr Peters submits that (JJK) consented to clinical photography on numerous occasions during the consultation.
- It is alleged that at various times during the consultation Dr Peters made sexualised remarks to (JJK), including, when she expressed concern about how her psoriasis looked, commenting "... you look hot with all of the weight you've lost". The Board noted Dr Peters denies making this comment to (her) and submits that he simply congratulated (her) on how much weight she had lost. The Board noted (JJK) also alleges that, whilst she was undressed the second time and Dr Peters was touching her body, Dr Peters commented, "just a little bit of creepy touching it's all part of the job", which Dr Peters has not addressed in his submissions in response to the proposed immediate action.
- It is alleged that on two occasions during her consultation with Dr Peters on 5 December 2019, (JJK) observed that Dr Peters had an erection, the first after he had been physically examining her and the second, when she was naked and about to enter the UV machine when he had entered the room, without knocking. The Board noted Dr Peters denies that he had an erection during the consultation with (her), explaining that the pants he wore that day have a prominent bulge in the groin based on the cut of the pants.
- The Board noted Dr Peters generally denies any allegation of improper conduct and submits that his conduct with (JJK), at all times, was professional and consistent with accepted clinical practice. Further Dr Peters submits that (her) allegations are false. Notwithstanding, in forming a reasonable belief that because of his conduct, Dr Peters poses a serious risk to persons the Board continued to place weight on (JJK’s) account of events which outlines the alleged events on 5 December 2019 in detail. Further, the Board noted (JJK) had been seeing Dr Peters, regarding her psoriasis, for twelve months in the lead up to the consultation on 5 December 2019 and had not made any previous complaint regarding Dr Peters' conduct during earlier consultations. For these reasons, the Board preferred (her) account of events to that of Dr Peters, and consequently was not persuaded by Dr Peters' submissions in response to the proposed immediate action.
- The information available indicates that Dr Peters has used his position of power to persistently exploit (JJK) physically and emotionally during the consultation on 5 December 2019. The Board noted (JJK) indicates that at various times during the consultation, she attempted to deflect Peters' behaviours but notwithstanding, he persisted. Considered collectively, Dr Peters' alleged conduct demonstrates a blatant disregard for his professional obligation to maintain professional boundaries and seriously deficient professional and ethical judgement.
- The Board noted the effect of Dr Peters' alleged conduct on (JJK) as described in her witness statement to police including that at various times during the consultation, she felt uncomfortable, intimidated, shocked, did not know what to do and froze.”
- As can be seen from paragraph 11 of the reasons, the Board “preferred (JJK’s) account of events to that of Dr Peters.” It clearly considered the submission made by Dr Peters dated 21st February but “was not persuaded by (the submission) in response to the proposed action.”
- After considering all the material which included all the material considered by the Board and the “fresh” material, I have come to a different view to that reached by the Board.
- As both parties note in their submissions, there are significant differences between the account given by JJK and that of Dr Peters as to what occurred during his consultation with her on the morning of the 5th December 2019. There is also commonality which both parties submit is relevant to the issue of credit and/or weight. It is impossible for the Tribunal at this stage to determine the facts where the parties diverge, without the benefit of a full hearing involving the testing of evidence in the usual way, which may or may not occur as a result of the Board’s on-going investigation of the matter.
- As noted in the authorities referred to above, pointers to credibility limited as these are at this stage, may nevertheless assist the Tribunal in determining objectively that because of his conduct Dr Peters poses a serious risk to persons which renders it necessary to impose conditions on his registration to protect public health and safety.
- It is legitimate to examine their respective accounts carefully as this may assist in ascribing weight, at this stage, to their accounts where they differ. Having said that, both submissions, and in particular the Board’s, are quite adversarial which I think, to some extent, is not helpful to the Tribunal’s role at this stage. For example, at a number of points in its submission, it asks the Tribunal to draw a Jones v Dunkel inference against Dr Peters. It cites CCC v Lee  QCATA 38 as authority for the proposition that “this principle” applies to “QCAT proceedings”. That can be accepted, but as that case demonstrates the Tribunal decision under appeal there proceeded over 3 days. The Jones v Dunkel point arose out of the failure of the respondent police officer to give evidence in the proceedings before the Tribunal in its original jurisdiction in which the allegation of misconduct against him was one of corrupt conduct. I doubt if the principle, which is succinctly analysed by the Appeal division, has much application in proceedings of this nature, where I am not acting as a trier of fact or in any way to determine finally the facts where these are in dispute. In any event, a number of the “deficiencies” attributed to Dr Peters on the basis of this principle, are addressed in subsequent material filed on his behalf.
- As both parties observe, there is significant commonality between the account given by JJK in her 7th December police statement, and in Dr Peters response to the immediate action notice attached to his lawyer’s submission to the Board dated 21 February.
- Firstly, both acknowledge (either directly or inferentially) that this consultation was unlike any that had taken place over the previous 12 months.
- It is common ground that it was JJK who contacted Dr Peters on his mobile phone on 4th December 2019.
- From her police statementit can be inferred that he provided this number to her after she had been treated for psoriasis by him at GCH since she first presented with the condition on her belly. For the first six months he treated her with UV Light therapy in a booth in the Dermatology Unit; she then had 2 months when she had no treatment and used natural therapies; and then returned to see Dr Peters as her condition had flared up again. It can be inferred that she used the phone number to contact him and send photos of her condition on the 4th December. It is not suggested that prior to the 5th December he had ever tried to contact her.
- The “boundary violations” summarised in the Boards’ reasons for decisionscan be discussed together because each is related to the other.
- There is dispute about what was said on the occasion of the first partial undressing, and the degree and location of the touching of JJK’s body by Dr Peters, however both agree he asked her to remove her top. There is also dispute as to the issue of consent and also, he says that he asked her if she would like a chaperone and which he says she declined. Both agree that she did remove her long-sleeved shirt, and that she covered her breasts with her arm. She told him that she was not wearing a bra as it was too painful.
- On the previous day, as noted above, she had sent texts and photos as she had “a massive flair up” (sic), and she sent him photographs, clearer copies of which are exhibited to his affidavit sworn 28th May.She then told him that she was at her “wits end” and “not sleeping at night because of it.” He arranged to see her urgently as the first patient at 8:30am the following day in what was already a fully booked day clinic at the hospital.
- The photographs are still not very clear, but there are 5 in all, some focussing on flare up on her scalp and ear and another showing her breast area with her arm covering her breasts with what appears to be significant rash in the inframammary space. Given the degree of flare up depicted in that photo it is not surprising that he asked her to remove her shirt, and it is also reasonable to assume that she was comfortable with that (despite this never having happened before), because she had sent him the photo the day before. It is also clear from his statement attached to his submission which the Board considered,that when he did take photos of her body with his phone camera, he did not photograph her breast area because he already had the photo of this area of rash supplied by her.
- As I have noted earlier, there is dispute about what he said and did on this occasion which has not been tested. His statement to the Board – or the attachment to his lawyer’s submission to AHPRA, refers in detail to his assessment of what he observed, and that it may not have been an aggravation of the pre-existing psoriasis, but rather a form of eczematous reaction which he wanted to check with his supervisor Dr Freeman.
- The Board in its submission to the Tribunal in these proceedings is very critical of Dr Peters for not recording the detail that is now in his “statement” in JJK’s clinical records. The records do not contain this detail. He has recorded a number of prescriptions for her to receive but very little else. His explanation is that he was in the practice of waiting until the end of the day when he had a very full clinic, such as this one, to complete his clinical notes, but, as he was suspended from duties that afternoon, he had no time to do this. Rather than amounting to practice “bordering on negligent practice”,in my opinion, although agreeing with the general proposition that ordinarily the absence of notes, or in this case digital entries in JJK’s clinical records, would stand against the professional person when there is a dispute, in this case his explanation is reasonable, given that she was a late entry into his clinic that day because of her distress, and, as it turned out he was unable to complete his records because he was suspended that afternoon after the clinic.
- At this point in the disciplinary process, and on the material before me, there is also reasonable grounds for inferring that misunderstanding may play a role in JJK’s recollection, given that this was a consultation like no other before. For example, in relation to the comment “you look hot with all the weight you’ve lost”; just prior to the first removal of her shirt, on its own, this would be entirely inappropriate, and even indicative of sexual interest on his part. He says (and she has had no opportunity to respond) that he mentioned to her at the start of the consultation that when he walked through the waiting room, he did not recognize her, and she told him she had lost weight and he congratulated her.
- Again, the Board in its submission is critical of this comment suggesting that it is unprofessional, whereas his lawyers say it is simply a human response with no sinister overtones. He disputes that he said the “you look hot” comment, but she says that she told him that she was wearing the long-sleeved top because “I’d rather be hot than have people see my skin condition”, following which he made the disputed comment. There is no doubt that even at this stage of the consultation she was distressed because of the severity of her condition, and it is not contrary to common sense that she may have conflated what she said with what he said about her appearance when she spoke to police two days later, at a time when she was alleging that he had sexually assaulted her on numerous occasions during the consultation which followed whatever was said between them at the start.
- On the first occasion, he asked her to turn around and he noticed a widespread rash on her back. This can be seen to some extent in one of the photos he took later when she was naked. He says he did not think that either the rash on her back or the inframammary rash he observed in the photograph supplied by her and which he observed on this first occasion looked like psoriasis, and Dr Muir agrees. The only commonality between them as to her redressing on this first occasion, is that he says he turned her top the correct way and handed it to her, whereas she says he tried to help her actually dress and made the comment “it’s all part of the service” which he disputes.
- They both agree that he asked her to undress on a second occasion this time removing (effectively) all her clothes. Her account is set out at - of her police statement.At this point, as I have observed, he was unsure if what he was observing was psoriasis. Whether his view is clinically reasonable has not been tested at this stage. Certainly, Dr Muir, who has only seen the photographs and did not see her clinically says what he can see predominantly is not psoriasis. The Board is critical of his evidence in the sense that it says he has confined himself to answering the questions posed by Dr Peters’ lawyers and had not answered a number of critical questions e.g. about the number of undressing’s etc as being necessary in the circumstances from a clinical point of view. Two observations can be made about that criticism. The first is that Dr Muir not surprisingly confined himself to the questions he was asked and did not go into areas that he may have thought were the Board’s responsibility. Secondly, the Board at this stage has not seen fit to obtain its own expert opinion from a dermatologist who could have answered the questions that the Boards’ lawyers thought were appropriate.
- It would be unreasonable to expect a lay person to remember the detail of what may or may not have been said about the detailed clinical issues that Dr Peters outlines in his response which he says he discussed with her. His position seems to be that if indeed the outbreak over many parts of her body was an aggravation of her pre-existing condition, then she may qualify for a form of injectable medicine know as biologics. He says he explained to her that he needed to score her psoriasis on a whole of body assessment based on a system called PASI which involves the clinician observing the areas of disease including thickness and coming up with an overall score. As well he explained to her (he says) that her disease would have to be chronic and other conditions would have to fulfilled before she could qualify for the injections and be covered by the PBS.
- She has not had a chance to respond to any of this but she does recall him saying that she would have to remove her clothes so that he could “score the areas of psoriasis on a chart” and to see if she was able “to get injection treatment”. He says that the conversation about the chronic disease and the PBS occurred before the second act of undressing and this accords with her recollection albeit on a much more limited basis. He says that she was keen on the plan he proposed which is probably inconsistent with her account as, at this stage, she says she was feeling uncomfortable. As I have noted she was very distressed about the flare up whatever it was, and at this stage, Dr Peters’ explanation about what he told her coupled with her limited recollection, cannot be discounted as the Board seeks to do. It is another area of conflict that can only be resolved after a full hearing, but at this point, in my opinion, Dr Peters account is reasonable. He also says he explained to her the need for clinical photographs so that he could discuss the diagnosis with Dr Freeman.
- She says that on this second occasion she removed her top and tights. He says (in what could be described as a statement against interest and suggestive of credit), that she was having difficulty removing her tights, and he helped her, with consent he says, and noticed a large plaque on her right lower abdomen, not indicative of psoriasis, which is depicted in one of the photos he took on his phone when she was naked. He denies attempting to remove her clothes or ever having an erection. She describes him as wearing tight business pants, and she could “see his erection bulge in his pants” He says he was wearing black narrow Zara trousers, with a suit jacket that hangs over his waist in the region of his groin. He denies ever having an erection or having any sexual attraction to his patient at any stage.
- Later, after he received a number of texts from JJK and an abusive phone call from a male (I infer her husband), he spoke to his Service Director Mr Noteboom, and showed him the texts from JJK. He says he was very distressed at this stage, and pointed to his groin area to show Mr Noteboom “this is how these pants look i.e. a prominent bulge in the groin area based on the cut of the pants. There is no statement yet from Mr Noteboom, but on the 20th May, in response to a request from Dr Peters’s solicitor, in an email from the lawyer for GCH, it is stated that Mr Notebottom does recall a conversation with Dr Peters on 5th December in which he referred to the cut of his trousers and jacket. He could not recall himself any observation of the trousers, or that they created a bulge. It has some minor weight at this stage in supporting Dr Peters account which leads to the possibility of misunderstanding. Relevantly to the issue of the nature of the gender based and other conditions imposed as a result of the immediate action decision of the Board, Mr Noteboom notes that since the conditions were imposed, Dr Peters has not been able to work at the hospital, because GCH has not been approved by AHPRA as an “approved practice location” for Dr Peters with the gender-based restriction condition.
- It was during this episode of undressing, that Dr Peters says he took the 3 photographs on his mobile phone.Again there is dispute between them about the extent to which he assisted her to undress and redress, and on the issue of informed consent and what was said, which cannot be resolved at this stage.
- He says that after she dressed on this occasion, they moved to the UV Booth. She says that there was another episode of undressing in the consultation room “for progress pictures”.This is a significant conflict in my opinion. The Board(in paragraph 5 above), has proceeded on the basis that there were 3 separate occasions of undressing “in the one consultation” without dealing with this conflict in his account. The Board’s submission (by reference to Dr Peters submissions to the Board)proceeds on the same basis. At 22 of its submission,the submission includes “(c) Dr Peters asking JJK to dress and undress on three separate occasions..”, as coming under the rubric of “Dr Peters’ own admissions”.He has not made any such admission. As I have noted above, he says there were two episodes of undressing (one partial) and it was during the second of these that he took the photographs with (he says) her informed consent.
- Her description of the second period of undressing in the consultation room is strongly suggestive of her being naked.In my opinion, it seems unusual, having asked her to undress to score the whole body PASI score, that he would not take the photos then which is what he says he did; and then ask her to undress again only for the purpose of “progress pictures”. The context is important as well in my opinion. It is common ground that she had been fitted into an already full clinic as the first patient, and it seems logical, as he says that he felt under pressure during the consultation with JJK, for that reason alone. In my opinion, it does not accord with common sense for him to ask her to undress on a third time in all the circumstances referred to above.
- It is clear from a reading of the Board’s decision and its reasons that the number of undressing’s during the consultation was an important factor in it forming a reasonable belief, and, in my opinion was based on an incorrect understanding of what Dr Peters said on this issue in his submission.
- I agree with both parties that assessing credit or weight at this point by reference to what either may have said to others soon after the consultation has limited value, however some weight can be ascribed to this issue by reference to what JJK told others soon after the event, given the Board’s positive finding that the conduct of Dr Peters involved sexualised behaviour. In the summary of what she initially told police,she is recorded as describing only two occasions during the consultation where he has asked her to remove her clothing either partially or completely, and she also confirms what he said and that is that the photographs were taken during the second period of undressing. That account is recorded in the police records as having been entered at 17:13 on the 5th December. Her immediate account to police thus accords with Dr Peters recollection and is contrary to what she says in her statement 2 days later.
- Similarly, her description apparently given to her husband on the 5th December as recorded in an email from the GCH patient liaison coordinator at 3:26pm on the 5th Decemberis not suggestive of 3 separate undressing episodes and is suggestive of one only. In the Board’s material, is a copy of the mandatory notification from the hospital to OHO on 6th December which includes a summary of JJK’s initial complaint to the hospital on the 5th which is also suggests that there were only 2 episodes of undressing during the consultation, although this summary appears to be very similar to the summary in the police file.
- Accepting that at this stage these differences would have little probative value, nevertheless for the reasons exposed above, I am of the opinion that accounts given by JJK prior to her giving her formal statement to police on the 7th - which appear to support Dr Peters account as to the number of times he asked her to undress during the consultation, do have some weight in relation to the forming of a reasonable belief at this stage. This issue is relevant to whether the actions of Dr Peters during the consultation were motivated by sexual interest as opposed to clinical reasons.
- Nevertheless, it was unwise (to use a neutral term) for Dr Peters to proceed with what he describes as the second occasion in which she was to be completely naked, without at least having a chaperone present. He says that he asked her if she required a chaperone at the start which she declined, but as noted earlier this was a completely different consultation to all that had preceded it and he does not suggest that he asked her again about a chaperone, even in circumstances where, on his own account, he was required to assist her in undressing. This is concerning, but the context of the busy clinic and the special favour he had extended to her by fitting her in after seeing the photos she sent the day before and hearing of her distress is relevant to this issue at this stage.
- It is clear from the Board’s decision under review that it was convinced that the boundary violations were sexual in nature. Although its decision states that it gave weight to the decision of the police not to prosecute, no detail is given in its reasons. From the police file provided, it is clear that the police conducted a Celebrite examination of the phone and that examination revealed that a large portion of the photo album “is filled with photos of patients skin disorders. Photos consist of different body parts and some include full body shots some naked and some in underwear”. It is in this part of the report that police note that the photos of JJK were the only ones stored in the secure app on his phone but that photos of her “were same as other photos in main photo album with (JJK) standing in neutral position.” In other words, the photos on their own are not of her in sexualised poses which is clear from the photos themselves. Neither the Tribunal not the Board have had access to the other photos but the police assessment given their specialist knowledge, should be given some weight at this stage.
- It seems to be common ground that in the practice of dermatology, visual images of the skin condition and the need to touch and palpate areas of apparent disease are clinically valuable and necessary. It also appears to be common ground that, particularly in relation to the photos taken during the consultation, that the rash/rashes depicted was atypical of her previous diagnosis of psoriasis.
- Although the use of a personal mobile phone to take and store images of patients is advised against,nevertheless it appears that use of mobile phones is widespread in clinical settings in the medical profession. I am satisfied that the photographs taken by Dr Peters do not, in themselves, suggest any sexual intent or even impropriety, and, as he states, up until this time he used his phone to take images to check his diagnosis and opinions with colleagues such as Dr Freeman. It is concerning that in his affidavit in response to the Boards’ lawyers’ criticism of him for having only JJK’s photos in the secure app, he suggests that after uploading clinical photos of patients to the hospital patient file and/or consulting with Dr Freeman when he needed guidance he would “delete the photo(s),”when the police report suggests that it is not so, and I have taken that into account in reviewing the decision of the Board. The same observation applies in relation to the issue I raised with the parties the day before the hearing which prompted the filing of a further affidavit by Dr Peters sworn the 28th May. He says now that he was mistaken when he swore in his 20th May affidavit that the images that JJK had sent to him on the 4th were not stored in the secure app whereas he accepts in his later affidavit that they were and still are. I accept that he is under a lot of pressure at the moment, and if disciplinary proceedings do proceed, he will have an opportunity to explain these apparent discrepancies.
- The use of his own phone to take clinical photos of patients including naked photos also has to be seen in the context that “there is no camera available in the Dermatology Clinic for staff to use to take clinical photos.”
- In any event, any serious risk associated with the use of his personal phone to take photos of patients has been satisfactorily ameliorated, in my opinion, by:
- The letter to AHPRA from Dr Wellwoodis also important in relation to the forming of a reasonable belief that he poses a serious risk to persons as it indicates that Dr Peters has been given a lawful direction to ensure that a chaperone is present during any consultation with a female patient. The Board in its submission, is critical of such a condition based on a report of Professor Patterson,submitting that such conditions are not effective in ameliorating risk. I have read that report and indeed his recommendations have been adopted by the Board and AHPRA, and he does recommend against that the use of mandated chaperones as an interim restriction in response to allegations of sexual misconduct by a health practitioner be abandoned. However, Professor Patterson does also go on to recommend in 2(b):
“Chaperones in exceptional cases only if mandated chaperones do continue to be used as an interim restriction, they should be imposed only in exceptional cases, subject to the following limits: 11. Chaperone conditions only be considered where: (a) the allegation of sexual misconduct involves only a single patient, and (b) the allegation, if proven, would not constitute a criminal offence, and (c) the health practitioner has no relevant notification or complaint history.”
That as the material presently stands, is exactly the position here.
- In forming its belief, the Board clearly regarded the text messages sent to Dr Peters on the 5th December after the consultation as important in supporting her account and detracting from his. The first message is in these terms;
“How you acted to was wrong and you know it, you made me feel so uncomfortable. You are sick trying to make me believe that what you did was normal”
In my view, for the reasons set out above, and in the circumstances in which the sexualised nature of the behaviour of Dr Peters during the consultation is very much in dispute, the text is equivocal.
It is clear, as noted above, that this was a consultation like no other that had preceded it. It is clear that JJK was very distressed by the extent of the flare up of what she assumed was her pre-existing condition, which extended well beyond her scalp and ears, to other parts of her body some of which are depicted in the photos she sent to him the day before, and in the 3 photos he took of her naked during the consultation. I have noted earlier the possibility of a misunderstanding which is not remote or fanciful in all the circumstances. Even his admitted actions might have provoked the response coupled with a misunderstanding as to what he said and a misunderstanding that lead her to be convinced that he was at some stage during the consultation sexually aroused. I am satisfied that the text is neutral when, at this stage, the sexualised nature of whatever happened involves word against word.
- Both parties have descended to minute analysis of alleged points in the material that support the credit of one of the people involved and/or detracts from the credit of the other. In my opinion, the state of the material at this point renders that process unhelpful. It is clear from the text that JJK was very upset about something relating to her consultation with Dr Peters that day. I have discussed above a number of the features of the material that I think bear directly on the issue of whether the conduct was sexualised or not and for the reasons given, I find that it is impossible to decide that at this stage. I think that the material before the Board did not permit such a robust and clear finding as to credit, and on a re-hearing afresh and with the benefit of the material that was not before the Board, I am unable to reach the same conclusion.
- The second text (after he had tried to call her and she had blocked his number) “You had a fucking erection. I’m so shocked and upset about this”, I infer, was probably sent after she had spoken with her husband who, I infer, was very angry and rang Dr Peters to accuse him of sexual impropriety. I have discussed in detail above Dr Peters explanation as to why she may have thought he was aroused when in fact he was not. At this stage, given the state of the material, I am unable to find that the text is supportive of sexualised conduct which will not be determined unless and until there is a full hearing. Again, I find that the text on all of the material is neutral at this stage.
- Not surprisingly, Dr Muir opines that it is necessary for a dermatologist to touch and /or palpate a patient’s skin, as a “valuable diagnostic clue in the assessment of a rash or skin lesion.”Because of the doubt in Dr Peters mind as to the nature of the extended rash on many parts of JJK’s body, well beyond the areas of psoriasis that he had previously diagnosed, proper clinical practice required that he touch her skin and palpate the new areas of rash. This alone may have disturbed JJK as, on the material, he had not done this previously. I do not agree with his lawyer’s submission, that her account of what occurred is not in itself suggestive of sexual interest. If her account was accepted (after proper testing), the conduct clearly involved sexualised boundary violations and/or non-consensual sexual touching. However, as I have noted on a number of occasions, what occurred is very much in dispute.
- Dr Freeman confirms that it was he who suggested to Dr Peters that in using his phone for taking clinical photos he should store them in the secure app which he downloaded. The Board is critical of him because of the police finding that it was only JJK’s photos that were in the secure app and there were many other similar photos in his phone photo album. He explains that he did this pending consultation with Dr Freeman but had no chance as he was suspended that afternoon, to upload the images to the hospital file of JJK. It is not known if the many other photos described generally by the police were uploaded to the respective patient files because at this point, the identity of those patients is not known. I have already commented on the inconsistencies in the sworn accounts of Dr Peters about his approach to the photos generally of patients in his phone album, including the photos of JJK in the secure app, and that counts against him but, as I have noted above, he has been under enormous pressure since he was first suspended and a conclusion on his credit at the present time on all the material based on this one issue, is not appropriate.
Conclusion on reasonable belief.
- For the reasons set out above, I have come to a different view to that formed by the Board. I do not hold the objective view, on the basis of a re-hearing, having regard to all of the material now before the Tribunal, that Dr Peters now poses a serious risk to persons. That is “serious risk” in the sense discussed by his Honour Judge Allen QC in Kirk.
- Dr Peters has never been previously subject to any such notification. The allegations against him before the Board and the Tribunal involve disputed allegations from one patient, albeit one who had previously enjoyed a professional therapeutic relationship with him for over a year, and criminal charges have not been laid despite a thorough police investigation. I take into account that the police have made it clear that any disciplinary matters are a matter for others such as the Board, and indeed such investigations are underway. Any risk has been significantly reduced by actions taken both by Dr Peters and his employer.
- I agree with his lawyers that the catastrophic consequences that he has already suffered (suspension, being unable to work, his personal situation and the serious and adverse effect on his family, and effect on reputation within the hospital community) will act as a powerful deterrent against any boundary violations in the future. The on-going investigation of the Board in itself will also act as a powerful deterrent to ensure that the health and safety of the public is protected and risk to female patients is ameliorated.
- If I had come to the same view as the Board about reasonable belief, I would have held, for the reasons exposed above, that the conditions imposed were punitive and beyond what was necessary to protect the public.
- I will direct that these draft reasons be circulated to the parties to enable them to consult confidentially with their clients and make written submissions in advance of the date set for decision.
- The orders of the Tribunal are;
- The immediate action taken by the Board on the 25 February is set aside
- Costs submissions to be filed in the Tribunal by 4pm 15 June 2020
 Albeit in that case in respect of s. 178 specifically, but the test for 'reasonable belief - it is submitted - is equally applicable here to s. 156.
 Letter to AHPRA dated 18th February (179-180 HB)
 Page 48 HB
 Pages 11-16 Hearing Brief (HB)
 Para 13 page 208 HB
 Para 3 page 206 HB
 Para 13 of her police statement Page 208 HB
 Para  above
 This affidavit was a result of my request to the parties the previous day to be supplied with clear copies
 164-171 HB
 Board Submission para 63 Page346 HB
 97-98 HB
 Page 371 HB
 Pages 290-291 HB
 Para 41 of her police statement Page 99 HB
Page 240 HB
 Pages 164-171 HB
 Pages 340-341 HB
 Page 340 HB Para 22 of Board submission. I am assuming that this excludes the undressing for the UV Booth which was required and outside the consultation room.
 E.g. para 39 of her police statement at 99 HB
 Page 218 HB
 Page 192 HB
 Page 92 HB
 Page 219 HB
 Dr Muir’s report para 3 Page 331 HB
 Para 2 of Affidavit of Peter Peters sworn 20th May page 376 HB
 Dr Freeman para 3 Page 327 HB
 Paras - of his affidavit sworn 20th May page 380 HB
 Para  11th May affidavit of Peter Peters Page 287 HB
 Letter Dr Wellwood to APRHA dated 18th February Page 179 HB
 Ibid Page 179 HB
 Footnote 62, HB page 355, Para 28. I am grateful to Dr Phipps who had down loaded the report and brought this exception to my attention during the hearing.
 Page 332 HB
 Health Ombudsman v Passmore  QCAT 92 at p.4 para 
- Published Case Name:
Peters v Medical Board of Australia
- Shortened Case Name:
Peters v Medical Board of Australia
 QCAT 169
11 Jun 2020