Health Ombudsman v Esser[2020] QCAT 335

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   On 3 May 2019 the applicant Director referred these disciplinary proceedings to the Tribunal, pursuant to sections 103(1)(a) and 104 of the Health Ombudsman Act 2013 (the Act). The proceedings proceed on the basis of an agreed statement of facts, and the respondent does not dispute that his conduct, as described in that agreed statement of facts, amounts to professional misconduct as defined in section 5 of the Health Practitioner Regulation National law (Queensland)(National Law). Nor does he dispute the sanction sought by the applicant.
2. [2]
   The respondent is a registered psychologist. He was first registered on 16 April 2009. He holds tertiary qualifications in psychology from a number of South African universities.
3. [3]
   He has worked as a psychologist in various locations since coming to Australia in 2009. He has been a clinical psychologist in private practice on the Sunshine Coast since 2012.
4. [4]
   Apart from the notifications associated with the conduct, the subject of these proceedings, he has no other notification history.
5. [5]
   On 15 October 2012 AZ was referred to the respondent on the basis of mixed anxiety and depression with labile moods and past suicidal ideation.
6. [6]
   In total, he treated AZ on 48 occasions between 15 October 2012 and 28 August 2014.
7. [7]
   The disciplinary referral contains three allegations. Allegation 1 relates to professional boundary violations commencing when AZ was overseas for an extended period of months in 2013. During that period there was some contact between the respondent and her. Upon her return to Australia, the respondent invited her to continue to see him on a no charge basis, which did commence in September 2013. During this period, the respondent developed personal feelings for AZ and he did not charge her for numerous consultations, and failed to keep clinical records for approximately 12 months. They communicated regularly by text and email, and discussed matters well beyond the boundaries of an appropriate therapeutic relationship. This continued while she was away overseas again, from July to August 2014.
8. [8]
   Upon her return from overseas the respondent ceased the therapeutic relationship with her. He offered her, and she accepted, casual employment at his practice, working 20 hours of flexible reception and administrative duties per week. This continued for approximately five months. She then moved into a house which he was minding on behalf of family members, and which was his residence. This included a period when they were living at the home alone together. During this period there was no sexual relationship, but they kissed, swam naked together on two occasions, were physically affectionate and expressed mutual romantic feelings towards one another. During the relevant period she was between 26 and 28 years of age.
9. [9]
   It is clear that during this period the respondent was well aware of the ethical issues exposed by his conduct as he and AZ discussed at length their developing relationship and the moral dilemma it presented.
10. [10]
    Allegations 2 and 3 relate to the respondent’s failures to make clinical notes of consultations with AZ, including sessions that were billed to Medicare.
11. [11]
    The contact ceased after the respondent asked her to cease employment at his practice in January 2015. In February 2015 he emailed her regarding his decision to sever the relationship for the sake of his marriage, which AZ accepted, albeit causing her a number of difficulties, and she described it as being painful. At that time the respondent’s supervising psychologist was Dr Lee Kannis-Dymand. On 13 February 2015, the respondent disclosed his relationship with AZ to Dr Kannis-Dymand, who then sought advice, resulting in the notification to the regulator, with which the respondent agreed and joined.

These proceedings

12. [12]
    The Tribunal’s role is protective and not punitive. The fundamental guiding principle in section 3 of the Act is the protection of the health and safety of the public and the promotion of professional, safe and competent practice by health practitioners. The onus is on the applicant to prove that the respondent’s admitted conduct amounts to either professional misconduct and/or unprofessional conduct. The standard of proof is on the balance of probabilities governed by the principle enunciated in Briginshaw v Briginshaw [1938] HCA 34.

Characterisation of the conduct

13. [13]
    The applicant alleges, and the respondent accepts that, his conduct breached a number of the provisions of the Australian Psychological Society Code of Ethics adopted in 2007. I agree. His conduct in allegation 1, combined with his admitted conduct in allegations 2 and 3, clearly amount to professional misconduct as defined in section 5 of the National law.
14. [14]
    In Psychology Board of Australia v Shahimper [2016] QCAT 259, his Honour Judge Horneman-Wren QC said at [69]:

The power imbalance by virtue of the therapeutic relationship is always an aggravating circumstance in these cases. The relationship between psychologist and patient is necessarily one involving a high degree of personal exposure on the part of the patient. That fact alone, notwithstanding any particular psychological issues, will place a patient in a position of greater vulnerability than may be in the case in other therapeutic relationships.

15. [15]
    In Psychology Board of Australia v IVX (Review and Regulation) [2016] VCAT 35, a registered psychologist commenced an intimate relationship with a patient shortly after his final consultation with her.
16. [16]
    Within weeks of their final consultation, the practitioner visited the tattoo parlour where the patient worked and asked her to do some corrective work on a tattoo. A personal friendship developed. The patient moved into the practitioner’s house. They attended a music concert together, socialised together, travelled overseas together and declared their love for each other to third parties. They remained in an intimate personal relationship at the time of the hearing of the matter (almost four years later). The evidence was that, they had decided not to have sex until marriage.
17. [17]
    The Tribunal considered the conduct constituted professional misconduct, finding that:

    1. (a)
       It was not predatory or opportunistic, but had the potential for great harm;
    2. (b)
       Harm can be done whether or not a relationship involves sex, particularly when the relationship becomes intimate and close in other ways;
    3. (c)
       What made the conduct so serious was that the patient was an extremely vulnerable young woman and yet the respondent gave no thought to his broader duty of care (other than an apparent resolution that they not have sex for two years).
18. [18]
    The Tribunal concluded at [146-147]:

The allegations, as admitted, involved conduct that falls substantially short of the standards of professionalism and ethics required by registered psychologists. Clients entrust their minds and their wellbeing to psychologists. That high level of trust must never be exploited. A clear prohibition on dual relationships reflects the recognised risk that the inherent power imbalance in the professional relationship will distort the personal relationship, with the potential to do very real harm to the client or former client. The more vulnerable the client the greater the risk of harm.

19. [19]
    It is clear from these decisions, and by reference to the Code of Ethics that personal relationships with patients, both during and after the therapeutic relationship ends, represent a clear failure to maintain appropriate professional boundaries by psychologists.
20. [20]
    The patient here was certainly vulnerable. The respondent’s boundary violations escalated over time as their relationship deepened. AZ was interviewed by a Health Ombudsman investigator. She says she was not harmed; quite the contrary. She says that he provided her with invaluable support during a difficult time in her life. That is important, however, it is the potential for harm that proceedings like this focus on, particularly in relation to issues such as deterrence.

Sanction

21. [21]
    As described above, the respondent’s conduct, while unquestionably serious, was not of the most serious kind of boundary violation. The evidence suggests it was not predatory or manipulative. The respondent did not groom the patient for a sexual relationship. The patient says she was not harmed by the conduct (that the potential for harm existed is relevant).
22. [22]
    At the time of severing contact with the patient, the respondent consulted a professional colleague, Dr Kannis-Dymand, who was his supervisor at the time, admitted his transgressions, and together they made a joint notification to the Health Ombudsman.
23. [23]
    The respondent cooperated fully with the Health Ombudsman investigation, providing comprehensive details of his relationship with the patient, and considerable documentary material, including copies of emails and text messages exchanged with her, attendance records of sessions billed to Medicare, where he failed to take clinical notes, and several submissions admitting and detailing his conduct.
24. [24]
    The respondent has cooperated during these disciplinary proceedings, accepting that the allegations in the referral amount to professional misconduct, and agreeing to a statement of facts.
25. [25]
    He has also undertaken a number of remedial steps to ensure that this conduct is not repeated. He refers to his engagement in supervision with Dr Kannis-Dymand, professional development undertaken, and practical steps to put in place in terms of the operation of his clinical practice.
26. [26]
    Dr Kannis-Dymand has provided confirmation of these supervision sessions. They have met on 16 occasions over an 18-month period, with sessions being up to one hour in duration. The respondent has utilised these sessions to reflect on past practice and ethical decision making, and to think about how he could have acted differently and to prevent reoccurrence of inappropriate behaviour in the future. He has expressed remorse for his past conduct and demonstrated that he had reviewed ethical codes and reflected on failures to adhere to ethical criteria. He has taken practical steps to strengthen his professional practice, reducing his case load, moving to shared premises, reviewing administration document processes, continuing to liaise with his supervisor, and engaging in peer supervision in his new shared practice.
27. [27]
    Also, at the time of notification to the Health Ombudsman he sought personal support from his general practitioner, a clinical psychologist and psychiatrist “to ensure maintenance and monitoring of my mental health and professional capacity over the following six months.” In this regard, the applicant notes the respondent’s medical records from his general practitioner, Dr Mark Daniels, including referrals to Dr Ken Arthur, psychiatrist, and Ms Carina Allen, psychologist.
28. [28]
    In its submission the applicant has referred to a number of comparative decisions. In my view the decision of most assistance in relation to the appropriate sanction is the decision of the Medical Board of Australia v RTF [2018] QCAT 323.

Conclusion

29. [29]
    In the context of the decisions and principles set out in the cases referred to in the applicant’s submission the Tribunal finds:

    1. (a)
       Though not at the upper end of the boundary violation cases, the respondent’s conduct is serious. He was entrusted with the care and treatment of a vulnerable patient. He let his personal feelings and emotions cloud his professional judgement, and failed to maintain professional boundaries with her;
    2. (b)
       While the evidence suggests she was not harmed by the respondent’s conduct, the potential for harm was present;
    3. (c)
       The absence of a sexual relationship does not lessen the seriousness of his conduct nor its potential consequences;
    4. (d)
       The Tribunal takes into account the respondent’s comprehensive acceptance and acknowledgment of the inappropriateness of his conduct, his remorse and regret, and the remedial steps he has taken to address the causes of that conduct, and the genuine insight he has demonstrated;
    5. (e)
       The Tribunal is satisfied that he does not pose a risk to the health and safety of the public, and the sanction involves no element of personal deterrence in the form of conditions to be imposed on his registration, apart from the sanction;
    6. (f)
       As noted earlier general deterrence is also an important consideration in the exercise of the Tribunal’s protective functions. I agree with the submissions made by the applicant that, given his response to his actions and the nature of his conduct since, a suspension from practice or a monetary filing is not warranted for the purposes of general deterrence;
    7. (g)
       It is appropriate that his conduct be denounced by way of a reprimand. As her Honour Judge Sheridan said in Health Ombudsman v Hardy [2018] QCAT 416 at [41] citing Medical Board of Australia v Grant [2012] QCAT 285 at [49]:

A reprimand is not a trivial penalty as it is a matter of public record, it affects the reputation of the practitioner, both in regards to the view of the public and the opinions of professional colleagues.

30. [30]
    Having regard to the totality of his conduct as set out in allegations 1 to 3, and in these circumstances the Tribunal makes the following orders.

1. Pursuant to s 107(2)(b)(iii) of the Health Ombudsman Act 2013, the respondent has engaged in professional misconduct.
2. Pursuant to s 107(3)(a) of the Health Ombudsman Act 2013, the respondent is reprimanded.
3. Each party to the proceeding bears their own costs.