Health Ombudsman v ORC[2020] QCAT 181

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   The Tribunal made orders in this matter on 2 October 2019. These are the reasons for the Tribunal’s decision.
2. [2]
   The orders followed upon a referral of a health service complaint against ORC (“respondent”) pursuant to section 103(1)(a) and section 104 of the Health Ombudsman Act 2013 (Qld) (“HO Act”) by the Director of Proceedings on behalf of the Health Ombudsman.

Conduct

Oh…I’m really sad to hear that, I had a lovely time and you’re lot of fun but if that’s your choice and I respect it. It was really amazing meeting you. Enjoy the rest of your time in Australia, :) Goodbye.

3. [3]
   The respondent was born in 1980 and is now 40. He was 33 years of age at the time of the conduct. He was first provisionally registered as a medical practitioner in early January 2014 and commenced an internship as a junior house officer in a regional public hospital a few days later. He was required to work in a variety of different departments at the hospital. One of the departments was the sexual health service clinic.
4. [4]
   On 17 February 2014, a 27 year old woman (the patient) attended the clinic to undergo sexual health tests. The patient was seen by the respondent. During the consultation the respondent performed a pap smear on the patient, tested her for sexually transmitted diseases, called in a female colleague into the consultation for a second opinion and inserted an implanon contraceptive rod into the patient.
5. [5]
   During the consultation the respondent told the patient he was new to the area and as a result did not have any friends around the city. The respondent and the patient discussed meeting for a drink that evening and exchanged mobile phone numbers.
6. [6]
   After the consultation ended the respondent texted the patient outlining that he was getting a drink at a local bar and asking if she would like to join him. The patient agreed and they met at a bar that night. The patient consumed two or three alcoholic drinks at the bar, before they left and walked along an esplanade. The patient kissed the respondent on his cheek. They attended another bar where the patient bought another drink for herself. They subsequently left and the respondent drove the patient to her residence. Before the patient left the vehicle, they agreed to have a meal the following evening. The patient again kissed the respondent on his cheek before exiting the car and the respondent drove away.
7. [7]
   The only subsequent contact between the respondent and the patient was an exchange of text messages the following day. The respondent sent a text message to the patient asking to move dinner to a later time. The patient responded that she did not think it was a good idea to meet again. The respondent replied:
8. [8]
   The extent of contact between the respondent and the patient outside the therapeutic relationship was:

1. (a)
   the respondent’s verbal invitation to have social contact and the exchange of mobile phone numbers immediately after the clinical consultation;
2. (b)
   the socialising later that evening;
3. (c)
   the exchange of a total of seven text messages during that and the following day.

Characterisation of conduct 

9. [9]
   Doctors have a responsibility to maintain professional boundaries between themselves and their patients: Good Medical Practice: A Code of Conduct for Doctors in Australia, section 8.2. The respondent’s conduct breached those boundaries. Whilst the respondent’s social interaction with the patient was consensual, the patient was vulnerable due to the inherent power imbalance between a doctor and patient and the particular sensitivities of the prior therapeutic relationship, the respondent having performed intimate examinations and procedures upon the patient. The boundary violation resulted in the patient becoming concerned and limiting her subsequent treatment options. Whilst at the lower end of range of seriousness of boundary violations, such type of conduct has the potential to lead to a slippery slope of more significant misconduct and must be denounced and deterred to maintain proper professional standards.  

10. [10]
    Whilst both parties submit that the respondent’s conduct should be characterised as unprofessional conduct, rather than professional misconduct, it remains for the Tribunal to reach its own conclusion as to the characterisation of the conduct.
11. [11]
    Whether conduct of a practitioner should be characterised as professional misconduct or unprofessional conduct depends upon a consideration of the particular facts and circumstances and an application of the terms of the respective definitions in s 5 of the Health Practitioner Regulation National Law (Queensland) (“National Law”).

“… it is apparent that what is required is more than a mere departure from the standard of conduct required of a practitioner.  In the context of this appeal, ‘substantial’ connotes a large or considerable departure from the standard required.  This large or considerable departure could be the result of the extent and seriousness of the departure from the requisite standard of conduct, the deliberateness of the conduct, the consequences for the client or other aspects of the conduct.”

12. [12]
    “Unprofessional conduct” is defined in s 5 of the National Law as “professional conduct that is of a lesser standard than that which might reasonably be expected of a health practitioner by the public or the practitioner’s professional peers.
13. [13]
    “Professional misconduct” is defined in s 5 of the National Law as including, in limb (a) of the definition, “unprofessional conduct by the practitioner that amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience”.
14. [14]
    The meaning of “substantial” was considered by the Full Court of the Supreme Court of South Australia in Fittock v Legal Profession Conduct Commissioner (No 2) [2015] SASCFC 167 at [110]:
15. [15]
    In deciding whether conduct should be characterised as “unprofessional conduct” or “professional misconduct”, the Tribunal is required to make a judgment as to the degree of departure from the standard reasonably expected of the practitioner by the public or the practitioner’s professional peers. In making such a judgment in this case, I was been greatly assisted by the views expressed by the assessors.
16. [16]
    Important considerations in this regard are the extent of the boundary violation and the relative inexperience of the respondent. I accepted the submissions of both parties that the respondent’s conduct should be characterised as unprofessional conduct, rather than professional misconduct. Accordingly, the Tribunal found that the respondent had behaved in a way that constituted unprofessional conduct.

 Sanction

17. [17]
    A few days after her last contact with the respondent, the patient had ongoing symptoms. She did not want to return to the clinic because she did not want to see the respondent. She instead attended the hospital emergency department on 21 February 2014. Her disclosure at that time of her contact with the respondent led to a notification by the Director of Medical Services of the hospital to the Australian Health Practitioner Regulation Agency (“AHPRA”) on 26 February 2014. This was a prompt notification. However, some steps in the subsequent regulatory action and ultimate disposition of this matter before the Tribunal were fraught with delay, none of which appears to have been the fault of the respondent but which has significantly impacted upon the respondent.
18. [18]
    After receiving the notification, AHPRA acted swiftly on 27 February 2014 by deciding to propose to take immediate action in relation to the respondent’s registration and invited submissions from the respondent in response to the notification.
19. [19]
    By a letter from his legal representatives to AHPRA dated 10 March 2014, the respondent admitted the conduct the subject of the referral, expressed his regret for his actions, acknowledged his mistake in accepting a social invitation from a client, stated he would not do so again and expressed an intention to undertake a course on professional boundaries.
20. [20]
    On 19 March 2014 the Medical Board of Australia (“the Board”) took immediate action by imposing conditions on the respondent’s registration including supervision and chaperone conditions. The Board amended conditions on 23 April 2014 and again on 16 July 2014, removing the chaperone conditions but requiring the respondent to maintain a log of female patients and continuing to restrict his employment to the public hospital system.
21. [21]
    On 4 May 2015 the respondent was granted general registration with conditions continuing. On 28 July 2015 the conditions were reviewed and continued to include supervision conditions, maintaining a log of female patients and continuing to restrict the respondent’s employment to the public hospital system.
22. [22]
    On 13 August 2015 the Board decided that it had a reasonable belief that the respondent had behaved in a way that constituted professional conduct. On 21 August 2015 the Office of the Health Ombudsman (“OHO”) was notified of the Board’s decision and, on 3 September 2015, the Health Ombudsman requested that the matter be referred to the OHO in accordance with section 193(2)(a) of the National Law, for it to be dealt with under the HO Act. On 14 September 2015 AHPRA referred the matter to the Health Ombudsman in accordance with section 193(2)(a) of the National Law.
23. [23]
    On 14 September 2016 the Health Ombudsman referred the matter to the Director of Proceedings, pursuant to sections 38(f) and 90 of the HO Act, for the Director of Proceedings to decide whether to refer the matter to the Tribunal.

24. [24]
    On 23 December 2016 the OHO notified the respondent that its investigation had been finalised and that the Health Ombudsman had referred the matter to the Director of Proceedings to consider whether to refer the matter to the Tribunal.
25. [25]
    On 31 October 2018 the Director of Proceedings referred the matter to the Tribunal.
26. [26]
    The OHO has informed the Tribunal (email of 2 October 2019) that:

In terms of the delay between December 2016 and the filing of the Referral in October 2018, this was due to a range of issues including workload and the growing backlog.

27. [27]
    The OHO provided no explanation why a full year passed between the referral of the matter by AHPRA to the Health Ombudsman and the referral by the Health Ombudsman to the Director of Proceedings. That more than another two years passed between the referral to the Director of Proceedings and the referral to this Tribunal is most regrettable.
28. [28]
    The Tribunal acknowledges that the Health Ombudsman has taken steps to successfully reduce the backlog referred to in the email of 2 October 2019 and to reduce times between receipt of notifications by the OHO and referrals to the Tribunal. The Tribunal also acknowledges the efforts of staff employed in the OHO and other legal practitioners to expedite the conduct of proceedings before the Tribunal. It can be reasonably confidently expected that the extent of delays associated with this matter will not be seen going forwards. That is, of course, of little consolation to the respondent.
29. [29]
    The respondent’s registration was subject to conditions until their removal by the Board on 27 May 2019. The respondent practised as a doctor in public hospitals as required by and subject to the conditions until ceasing employment on 20 January 2019. After that time, the conditions, particularly the burden upon prospective employers associated with compliance with the supervision conditions, hindered the respondent’s ability to obtain further employment. It was not until the conditions were removed that the respondent was able to obtain employment in a locum position.
30. [30]
    The respondent filed an affidavit in the proceedings, deposing to his deep regret for his conduct. He deposes that over the following years he has had much time to reflect on his behaviour and professional practice, has matured as a person, completed further education on professional boundaries and developed a deeper understanding of them. He states that he is now acutely aware of the need to maintain professional boundaries. He deposes that he has struggled personally with the consequences of his error and that the stress and anxiety of the prolonged process, the inability to progress his career and his period of unemployment have taken a toll on him. Such evidence was not challenged and the Tribunal accepts it.
31. [31]
    The mitigating effect of the delay in the resolution of this matter, not attributable to any fault of the respondent, is significant. Not only has it led to the stress and anxiety of the respondent of unresolved proceedings, but it has given the respondent the opportunity to demonstrate his full rehabilitation. The respondent has complied with stringent conditions on his registration for a lengthy period and not been the subject of any other complaints. The Tribunal can safely conclude that such conduct is unlikely to be repeated.
32. [32]
    The respondent co-operated with the investigation of the complaint, making early admissions to his conduct, and has co-operated fully with regulatory action taken by the Board and in the conduct of these proceedings before the Tribunal.
33. [33]
    When considering sanction, the health and safety of the public are paramount.^[1]  Relevant considerations include both personal and general deterrence, the maintenance of professional standards and the maintenance of public confidence.^[2]  The function of the Tribunal is protective, not punitive.^[3]  

34. [34]
    The parties jointly submit that a reprimand would satisfy the protective purposes of sanction in this matter. A reprimand is not a trivial penalty and has the potential for serious adverse implications. It acts as a public denunciation of the conduct and is a matter of public record affecting the reputation of a practitioner.
35. [35]
    The determination of sanction remains a discretionary matter for the Tribunal, notwithstanding any agreement between the parties. However, the Tribunal ought not to depart from a proposed sanction agreed between the parties unless it falls outside a permissible range of sanction.
36. [36]
    The Tribunal accepted that a reprimand was the appropriate order by way of sanction in this matter. The respondent’s conduct deserved denunciation by the Tribunal. Accordingly, the Tribunal ordered that the respondent be reprimanded.

          Costs

37. [37]
    Both parties submitted that there would be no reason for the Tribunal to depart from the ordinary position that the parties bear their own costs of the proceedings, and that was reflected in the orders of the Tribunal.

   Non-publication order 

38. [38]
    Section 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) provides as follows:

1. (1)
   The tribunal may make an order prohibiting the publication of the following other than in the way and to the persons stated in the order— 

   1. the contents of a document or other thing produced to the tribunal; 
   2. evidence given before the tribunal; 
   3. information that may enable a person who has appeared before the tribunal, or is affected by a proceeding, to be identified.
2. (2)
   The tribunal may make an order under subsection (1) only if the tribunal considers the order is necessary— 

   1. to avoid interfering with the proper administration of justice; or 
   2. to avoid endangering the physical or mental health or safety of a person; or
   3. to avoid offending public decency or morality; or
   4. to avoid the publication of confidential information or information whose publication would be contrary to the public interest; or 
   5. for any other reason in the interests of justice. 
3. (3)
   The tribunal may act under subsection (1) on the application of a party to the proceeding or on its own initiative. 
4. (4)
   The tribunal’s power to act under subsection (1) is exercisable only by— 

   1. the tribunal as constituted for the proceeding; or 
   2. if the tribunal has not been constituted for the proceeding—a legally qualified member or an adjudicator.

39. [39]
    In LSC v XBV [2018] QCAT 332, the Hon Peter Lyons QC stated: 

[26] Section 66 should be read with section 90 of the same Act.  That section commences by identifying, as the primary rule, a requirement that a hearing of a proceeding be held in public.  It then provides that the Tribunal may direct a hearing or part of a hearing be held in private, but only in circumstances similar to those specified in section 66, including where the Tribunal considers it necessary to make the order to avoid endangering the physical or mental health or safety of a person.  As will become apparent, both sections give the Tribunal a broader power to constrain the operation of the open court principle than is available to courts generally by virtue of their inherent (or implied) jurisdiction.

40. [40]
    The exercise of the discretion pursuant to s 66(1) of the QCAT Act is informed by the paramount principle of open justice:

Although there is a public interest in avoiding or minimising disadvantages to private citizens from public activities, paramount public interest in the open administration of justice, freedom of speech, a free media and an open society require the court proceedings to be open to the public and able to be reported and discussed publicly.^[4]

… information may not be withheld from the public merely to save a party or witness from loss of privacy, embarrassment, distress, financial harm, or other ‘collateral disadvantage’…^[5]

… an unfortunate incident of the open administration of justice is that embarrassing, damaging and even dangerous facts occasionally come to light. Such considerations have never been regarded as a reason for the closure of courts, or the issue of suppression orders and their various alternative forms. ^[6]

41. [41]
    In Medical Board of Australia v Waldron [2017] QCAT 443 at [81]-[82], Sheridan DCJ observed:

The wording of s 66(2) makes it plain that the discretion is not to be exercised lightly, and only if the Tribunal considers it necessary.  The phrase “in the interests of justice”, whilst not defined and generally considered to confer a broad discretion, must be interpreted subject to those limitations.

The discretion given to the Tribunal by s 66 has been described as being “underpinned by the principle of open justice which aims to ensure not only that court proceedings are fully exposed to public scrutiny, but also to maintain the integrity and independence of the courts.”  The onus is on the applicant to show special circumstances exist which justify the making of the order.

42. [42]
    The last statement by her Honour is not to deny the specific statutory authorisation for the Tribunal to make such an order on its own initiative. In this matter, the Tribunal raised the matter of making a non-publication order to the extent of anonymising the identity of the respondent and sought submissions from the parties.
43. [43]
    I note the terms of sections 31(3) and 108(2)(a) of the Human Rights Act 2019 (Qld).
44. [44]
    Recent experience has shown that contents of decisions of this Tribunal in health practitioner disciplinary matters, particularly where they may attract salacious public interest, are often re-published in the online media in multiple associated news sites. This is just the sort of matter that might attract such salacious interest and republication. That the decision of this Tribunal might be published in the media in such a way is not of concern to the Tribunal. It is welcomed as it assists public understanding of the work of the Tribunal in such matters and hopefully assists in maintaining public confidence in the maintenance of professional standards of members of the health professions. The risk of being named and shamed also serves a salutary deterrent purpose and, ordinarily, that purpose would be frustrated or weakened if the identity of the practitioner were to be suppressed.^[7]
45. [45]
    A question does arise though as to whether it is in the interests of justice that the respondent be named and shamed given the inordinate delay, through no fault of the respondent, between the conduct and the publication of these reasons. It was not until more than five years after his conduct that the respondent was free of consequent conditions on his registration and restrictions on his employment and able to move on with his professional career. It is now more than six years since the conduct. I consider it would cause the respondent an injustice if, at this late stage, he was to suffer the continued embarrassment of publication and re-publication of this matter for an indefinite future time. Whilst considerations of embarrassment alone would rarely justify an abrogation of the paramount principle of open justice, the particular circumstances of this matter are such that it is in the interests of justice that publication of the Tribunal’s orders, these reasons and any material before the Tribunal be prohibited to the extent that it might identify the respondent.
46. [46]
    The same considerations lead the Tribunal to direct that these reasons be provided to AHPRA and the Board for consideration of whether the Tribunal’s order of reprimand of the respondent should remain any longer on the register than the period of more than eight months that has passed since the order.
47. [47]
    It is not controversial that there should be a non-publication order protecting the identity of the patient.
48. [48]
    Accordingly, it is further ordered:

      Pursuant to s 66(1) of Queensland Civil and Administrative Tribunal Act 2009, publication of:

1. (a)
   the contents of a document or thing filed in or produced to the Tribunal; 
2. (b)
   evidence given before the Tribunal; and
3. (c)
   any order made or reasons given by the Tribunal,

is prohibited to the extent that it could identify or lead to the identification of any patient of the respondent, or the respondent, save as is necessary for the Office of the Health Ombudsman to provide information to the Australian Health Practitioner Regulation Agency in the exercise of the Health Ombudsman’s functions under the Health Ombudsman Act 2013 (Qld) and for the purposes of the following direction.

  These reasons are to be provided to the Australian Health Practitioners Regulation Agency and the Medical Board of Australia for consideration of whether the Tribunal’s order of reprimand of the respondent should remain any longer on the register.

49. [49]
    On And the Tribunal directs that: