Health Ombudsman v JLK[2020] QCAT 487

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   This is a reference by the applicant of disciplinary proceedings against the respondent under the Health Ombudsman Act 2013 (“the Act”) s 103(1)(a), s 104.  In accordance with the Act I am sitting with assessors Dr F Walden, Dr E Chew and Ms J Stuckey.^[1]  On the day on which the matter was listed for hearing, one of the medical assessors was himself in hospital as a patient.  That assessor has been provided with a transcript of the hearing, and I had the benefit of his assistance after he had considered the transcript, as well as the material in the hearing brief.  The parties did not object to the matter proceeding in this way, and I consider that the requirements of the Act s 126 were satisfied, albeit in an unconventional fashion.  
2. [2]
   The respondent is and was at the relevant times a registered medical practitioner, and hence a registered health practitioner for the purposes of the Health Practitioner Regulation National Law (Qld) (“the National Law”). The applicant alleges that the respondent engaged in unsatisfactory professional conduct, in that there were boundary violations with a patient extending to sexual intercourse.  That this occurred is admitted by the respondent. 
3. [3]
   The applicant referred the matter to the Tribunal on 30 May 2018, although an amended referral was filed on about 10 October 2019.  The parties have provided the Tribunal with an agreed statement of facts, and an agreed bundle of documents.  The respondent has been legally represented in this proceeding, and the parties have each provided the Tribunal with written submissions as to the appropriate outcome.  The Tribunal has affidavits from the respondent and his wife, and two affidavits in the nature of character references.  There was brief oral evidence, involving the respondent and his treating psychiatrist. 

Facts

4. [4]
   The Tribunal accepts the facts set out in the agreed statement of facts.  They, and some additional information from the documents before the Tribunal, may be summarised as follows:  The respondent was born in 1969 and is now 51.  He was trained and practiced in Iran before coming to Australia in 1999.  He was first registered here as a medical practitioner in 2003 when he obtained his AMC medical certificate.  In 2012 he obtained registration as a psychiatrist, and practiced as such until mid June 2014.  He was away from practice until September 2015, and then returned to practice as a psychiatrist.  He was practicing as such at the relevant time. 
5. [5]
   In January 2013 the respondent saw the mother of a boy who had been diagnosed with Asperger’s syndrome, as a first consultation in treating the boy.  He treated the son over 27 consultations until September 2013, usually with the mother present, although sometimes the mother attended on her own.  The mother ran a small business, and in April they agreed to meet at a café to discuss the business; they met, and later visited the business premises.  Subsequently further contact occurred concerning that business, including another visit to the premises, and dinner with the mother, and two other mothers of children the respondent was treating. 
6. [6]
   In May 2013 the mother obtained from a relative a referral to see the respondent.  The respondent was aware that the mother suffered from anorexia, and was having difficulties with her marriage and managing her son’s condition.  At the first consultation she and the respondent spoke about having a personal relationship, and hugged and kissed.  Later in May they met socially, and later again they met for sexual intercourse.  That occurred again on occasions, including at the respondent’s office on weekends. 
7. [7]
   During the relationship he disclosed personal information to the mother, and also discussed other patients, inappropriately.^[2]  In July 2013 the mother ended her marriage.  In August and September she saw the respondent as a patient on a further eight occasions.  In late September the respondent’s wife discovered the relationship, and the respondent told the mother about this.  Subsequently the respondent transferred the care of the son to another practitioner, and broke off the relationship with the mother.  She reacted badly to this, and required psychiatric care including a period of hospitalization. 
8. [8]
   In December 2013 the mother disclosed the relationship to her general practitioner, who reported the matter to AHPRA under her mandatory reporting obligations. When contacted by AHPRA the respondent admitted the relationship, and the inappropriateness of his conduct.  On 30 January 2014 the Notifications Committee imposed chaperone and supervision conditions on his registration, and prohibited the prescribing of certain medications, although the conditions for supervision and limiting prescribing were removed on 23 April 2014.  In June 2014 the mother also complained to AHPRA.^[3]  The respondent’s mental health deteriorated, and he voluntarily ceased practice because of this in June 2014. 

Medical evidence

9. [9]
   In February 2014 the respondent consulted a psychiatrist Dr New, who in April 2015 diagnosed the respondent as having for a long time experienced a bipolar affective disorder.  Since then he has received treatment, and in July 2015 Dr New reported that as a result of the treatment the respondent was no longer a risk to female patients, or mothers of patients.  In September 2015 the respondent recommenced practice as a psychiatrist, subject to the existing condition.  In October Dr New reported that the respondent was continuing to receive treatment, although his mental state had been stable for several months, and that he did not regard the respondent as a risk to patients. 
10. [10]
    In December 2015 the applicant referred the question of any impairment to the Medical Board for consideration.  AHPRA arranged for a health assessment by another psychiatrist, who reported in May 2016 that he agreed with the diagnosis of Dr New, that the medication provided by Dr New had been helpful and that the respondent appeared to have responded well to treatment.  He considered that at the time of the boundary violations the respondent suffered from a hypomanic episode which led to poor judgment and reckless behaviour, and that at that time he was impaired, although as a result of the treatment and his improved condition, he was no longer impaired.  He considered that, had it not been for the impairment, it is unlikely that the respondent would have transgressed.  He considered that the respondent was safe to practice so long as he did not relapse into a severe episode of mood disturbance, and recommended that action be taken to guard against relapse, in the form of continuing treatment, and some supervision. 
11. [11]
    Dr New read that assessment, and expressed the view that the risk of relapse was now much less than before, and that there was no longer any need for a chaperone with females.  In June 2016 notice was given of proposed conditions for supervision and treatment, which the respondent did not oppose, and they were imposed in October 2016, although the chaperone condition was left in place.  After an application was made to the Tribunal to review that decision, the chaperone condition was removed, and the frequency of supervision was reduced to fortnightly in February 2017.  The respondent has complied with the conditions in place from time to time, and continues to be seen by Dr New. 
12. [12]
    Dr New reported in December 2019 that the respondent remained stable although his medication has been increased because of stress levels he was facing.  He was confident that the risk of further manic episodes was very small, and that he had reached a stage where he would ordinarily be managed by a GP, although Dr New was willing to continue to see him.  He suggested that this occur every two or three months.  He did not consider that supervision of his work by another practitioner remained necessary, in view of the period of stability, the expressed attitude of the respondent and the availability of a degree of monitoring of his condition by his wife.  There were further reports from Dr New in April 2020, June 2020 and July 2020, which were to the same effect as the earlier reports, although they also dealt with the effect of publication of this matter, considered later. 

Characterisation of conduct

13. [13]
    The applicant seeks a finding that the respondent engaged in professional misconduct in respect of his relationship with the mother, and the respondent concedes that such a finding is appropriate.  I am conscious of the definition of “professional misconduct” in the National Law s 5. The applicant relies on paragraph (a) of the definition. It is not appropriate for a medical practitioner to develop a personal relationship with a patient, particularly if the relationship becomes intimate. That involved a failure to maintain proper boundaries, a matter of importance in view of the power imbalance between the practitioner and the patient.  This can be particularly significant in the case of a psychiatrist, whose patients are likely to be particularly vulnerable and trusting. 
14. [14]
    The Tribunal was referred to a number of earlier decisions which supported such a characterisation of his conduct.  I therefore agree with the characterisation of the conduct as professional misconduct, being unprofessional conduct by the respondent that amounts to conduct substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training and experience. 

Sanction

15. [15]
    As to sanction, in imposing a sanction the health and safety of the public are paramount.^[4]  Relevant considerations include both personal and general deterrence, the maintenance of professional standards and the maintenance of public confidence.^[5]  The function of the Tribunal is protective, not punitive.  The relevant conduct occurred some years ago, and there is no allegation that there has been any further similar incident. This suggests that the respondent has rehabilitated.  There is also good evidence that the respondent has shown insight into the issues and his underlying condition, and considerable remorse.  References have been provided, and it appears that the respondent is providing a useful public service, at some economic cost to himself, by bulk billing for the treatment of socioeconomically disadvantaged sections of the local community. 
16. [16]
    Another relevant factor is that at the time the respondent was suffering from an undiagnosed psychiatric condition which caused him to behave in a way which was not characteristic of his behaviour when not so affected, and which is now well controlled.  The evidence of Dr New and the other psychiatrist was that the respondent’s behaviour was quite unlikely to have occurred without the effect of his condition, and I accept that evidence.  The significance of this was considered in LCK v Health Ombudsman [2020] QCAT 316, and I adopt what I said there.  This factor is relevant to sanction, and indicated that the respondent’s moral culpability is reduced, and personal and general deterrence are of less importance. 
17. [17]
    The evidence indicated that at the time of the relevant conduct the respondent knew that what he was doing was wrong, but did it anyway.  That shows that the deficiency was in his judgment rather than in his understanding of his ethical obligations, and that is consistent with the effects of his psychiatric disorder when in a particular phase.  The approach discussed in LCK (supra) applies in cases where the effect of the mental health issue does not go so far as to deprive the practitioner of the ability to identify that the relevant conduct is wrong. 

Earlier decisions

18. [18]
    The Tribunal was referred to a number of earlier decisions.  In Medical Board of Queensland v Quan [2006] QHPT 5 an experienced general practitioner had a sexual relationship with a vulnerable patient over several months, while suffering from Bipolar Type II disorder, said to be a very important factor regarding his culpability.  His registration was cancelled with a preclusion period of two years, and counselling and treatment conditions were imposed on his re-registration.  This decision was prior to all the authorities discussed in LCK (supra), and I do not regard it as representing the current approach to the effect of mental illness. 
19. [19]
    In Medical Board of Australia v Nadam [2011] QCAT 65 a general practitioner had a sexual relationship with a patient over a period of nine months.  Although not discussed in detail in the reasons, it is clear that the practitioner had mental health problems at the time, which had subsequently been treated, he presented evidence that this was out of character, and he had voluntarily refrained from seeing female patients without a chaperone over a period of two years.  The Tribunal accepted a joint submission that his registration should be suspended for three months, with the suspension itself suspended after one month,^[6] and that conditions for supervision and education be placed on his registration. 
20. [20]
    Medical Board of Australia v Blomeley [2014] QCAT 160 is a useful decision, because it considered a number of earlier decisions.  A general practitioner had a sexual relationship with a patient who was vulnerable over a period of about nineteen months.  After a complaint, the practitioner admitted the conduct, and conditions including for chaperones were placed on his registration.  The practitioner had marital problems himself, but there was no discussion of mental health issues.  Judicial Member Thomas QC noted at [23] that the relationship stemmed from a position of inequality, and that it was his special duty to maintain the appropriate professional boundaries.  He was reprimanded, and his registration suspended for fifteen months, but the Tribunal declined to impose conditions for supervision or further education. 
21. [21]
    In Medical Board of Australia v Leggett [2015] QCAT 240 a psychiatrist began a sexual relationship with a former patient almost seven years after the therapeutic relationship ended.^[7]  Five years later the Medical Board took immediate action by imposing conditions which made his continuing to work in the public system impracticable, and resulted in his taking redundancy, after which he voluntarily did not practice for fifteen months.  He then recommenced practice, seeing only male patients.  The Tribunal accepted that he had shown great insight and remorse.  The Tribunal noted at [12] that ordinarily a period of suspension of twelve months would be appropriate, but declined to impose a period of suspension, because of the long delay since the initial admission of the facts on the basis of which the sanction would be imposed, and because there had been already the period of fifteen months which served as a de facto suspension,^[8] which was a significant matter to take into account in his favour: [23].  There was no discussion of mental health issues in that case, and the reason for the delay is not obvious, although there was no express attribution of blame to the Board. 
22. [22]
    A recent decision of the Tribunal is similar in some respects to Leggett.  In Health Ombudsman v Mutasa [2019] QCAT 315 the medical practitioner lost his locum position after being charged with sexual assault on a paramedic, which occurred at a hospital while they were at work.  He was convicted of the offence, and fined, and had not worked since as a doctor, a period of over four years.  For part of that time his registration was suspended because of an impairment related to the abuse of alcohol, although the evidence showed that that was in remission and he was fit to return to practice, so far as the impairment was concerned; he had refrained pending the outcome of the proceeding.  The Tribunal said that apart from two factors, a suspension of twelve months would be indicated, but it would not be imposed because the significant time he had already spent away from practice, and because of a delay of five months in bringing the matter to a hearing, which was found to have been the fault of the applicant, would in the circumstances give such a suspension a punitive effect: [34]. 
23. [23]
    In Psychology Board of Australia v Garcia [2015] VCAT 128 the practitioner engaged in a sexual relationship with a patient within two years after terminating the professional relationship.  She had readily admitted the conduct, which was not predatory, although the Tribunal said that the patient was vulnerable.  She was reprimanded, her registration was suspended for six months, and conditions for boundary education and mentoring were imposed.  In that case there was no discussion of mental health issues. 
24. [24]
    In Naidu v Medical Board of Australia [2016] NTSC 8 the court dismissed an appeal from a decision of the Health Practitioner Review Tribunal, which had imposed a suspension of four months on the registration of a general practitioner who had had a lengthy affair with a patient, who was also the wife of a patient, with the result that he was the father of two supposed children of the marriage.  The grounds of appeal were that there had been findings of fact for which there were no evidence, that the Tribunal had erred in treating Codes of Conduct as prescriptions rather than guidelines, and that the Tribunal had placed too much emphasis on the health and safety of the community, all of which were rejected.  The reasons noted that the practitioner had made little attempt to remedy the deficits in his understanding of his professional obligations, and the extent of his understanding of them was unclear: [31].  There was no mention of mental health issues. 
25. [25]
    In Medical Board of Australia v DEL [2019] QCAT 63 a general practitioner engaged in a sexual relationship with a patient over about four months, with some continuing inappropriate contact of the patient after the relationship ended, regarded as an aggravating feature: [12].  The Tribunal accepted a joint submission that the appropriate sanction was a reprimand, a suspension for six months and conditions for education and mentoring on return to practice.  There was a reference in the reasons to the practitioner having vulnerabilities, having developed insight into them, and that there was little risk of reoffending, and that she had made full and frank admissions at an early stage.  In discussion about a non-publication order, it emerged that she suffered from a form of bipolar affective disorder, which was proving difficult to manage and susceptible to stress; presumably this was the vulnerability referred to, although there was no particular discussion of the mitigating effect of mental health issues. 
26. [26]
    In Health Ombudsman v Bricknell [2019] QCAT 340 a psychologist had a personal and sexual relationship with a patient over eight years, leading to marriage and children before it broke down.  The conduct was aggravated by a failure to keep proper records, and attempting to mislead the applicant in its investigation.  The Tribunal found there was little evidence of an appropriate level of insight, and ordered that the practitioner be deregistered, as it was not satisfied that she would be fit to resume practice after a period of suspension.  The Tribunal took the absence of frankness very seriously in that case.  There was no discussion of mental health issues.  On the whole, that decision is not comparable. 
27. [27]
    Overall these decisions show that a boundary violation involving a sexual relationship with a vulnerable patient will usually result in a suspension for a period of up to eighteen months, but also show that each case is different, and that it is important to take into account all the circumstances of a particular case.  Most of the cases did not involve consideration of mental health issues, and in those that did, it is not clear that full effect was given to that consideration.  On the evidence in the present case, that is a significant matter, and is relevant as stated above. 
28. [28]
    There is also the factor that the respondent voluntarily withdrew from practice for a period of about fifteen months.  This was because of his deteriorating mental health condition, but it was the same condition which had been involved in his engaging in the boundary violation, and he remained away from practice until his treating psychiatrist regarded his condition as sufficiently controlled to permit him safely to return to work.  Such behaviour is consistent with the objective of protecting the health and safety of the public, and he should receive some credit for it.  Since then he has practiced subject to conditions imposed from time to time by the Board. 
29. [29]
    Another factor is that the offending conduct occurred over seven years ago, and the relationship was admitted to AHPRA almost seven years ago.  There were reasons for most of the delay, and this is not a case where blame for delay can be attributed to the applicant, but in Leggett (supra) the mere fact of long delay was regarded as relevant, and the period that has elapsed since September 2015, during which he has functioned as a psychiatrist without any further notifications or complaints, gives confidence that his mental health is now much better controlled, and that there is no particular risk to the health and safety of the public in his continuing to practice. 
30. [30]
    In view of these factors, and the medical evidence that the respondent is and has been for some time fit to return to work, no period of suspension is now appropriate or necessary to give effect to the purposes of this proceeding.  It is however appropriate that the respondent be reprimanded. 
31. [31]
    Originally the applicant also sought the continuation of the treatment and reporting conditions as imposed by the Board on 6 April 2020, which require treatment by a psychiatrist at a frequency determined by the treating practitioner, and notification conditions designed to assist AHPRA to monitor compliance.  The respondent submitted that, as those conditions were imposed by the Board, they stand outside the scope of this proceeding, and will continue, and the Tribunal should proceed on the basis that those conditions will remain in place until the Board considers that they are no longer required.  That appears to be correct, and at the hearing the applicant did not pursue this submission. 

Non-publication order

32. [32]
    The respondent seeks a non-publication order in respect of his identity.  Such an order is already in place covering the respondent and family members, and the respondent seeks to have that order extended.  There is evidence from Dr New that publication of this matter would impact adversely on the mental health of the respondent, by increasing his stress levels which can trigger a relapse.
33. [33]
    The starting point is that the Tribunal operates in public, and the power to conduct all or part of a hearing in private is strictly regulated.^[9]  Part of the deterrent aspect of disciplinary proceedings is the prospect of the practitioner being publicly identified, including in the media, as having been guilty of particular misconduct.  The Queensland Civil and Administrative Tribunal Act 2009 s 66 authorizes a non-publication order if the Tribunal considers it necessary, having regard to five specific matters, one of which is “(b) to avoid endangering the physical or mental health or safety of a person”.  Such an order will not be made too readily.^[10] 
34. [34]
    The evidence of Dr New, particularly in his report of 31 July 2020, supports the proposition that there is a real risk of relapse if the identity of the respondent is publicised, jeopardising the recovery which has already occurred.  As well, for the reasons explained by the Tribunal in Health Ombudsman v CLT (No 2) [2019] QCAT 379, in the present circumstances a non-publication order is appropriate, even apart from the risk of an adverse effect on the respondent’s mental wellbeing, because of the close connection between the offending conduct and the respondent’s impairment, in the form of a psychiatric condition.  The order was opposed by the applicant, and it was submitted that it was not all cases where there was a sufficient effect of some impairment on the relevant conduct to justify a non-publication order.  It is sufficient to say that I consider that in the present case the connection is close enough for a non-publication order to be appropriate on the CLT ground.    
35. [35]
    I have discussed the matter with the assessors, and had the benefit of their assistance.  The decision of the Tribunal is therefore:

1. The Tribunal decides that the respondent has behaved in a way that constituted professional misconduct, in that he engaged in conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level or training or experience. 
2. The respondent is reprimanded. 
3. The parties bear their own costs of the proceeding.
4. Pursuant to the Queensland Civil and Administrative Tribunal Act 2009 s 66, publication is prohibited of:
   1. (a)
      The contents of a document or thing produced to the Tribunal; and
   2. (b)
      Any order made or reasons given by the Tribunal; and
   3. (c)
      Evidence given before the Tribunal,

to the extent that it could identify, or lead to the identification of, the respondent, any family member of the respondent, any patient or former patient of the respondent, or any family member of any patient or former patient of the respondent, save as is necessary for the parties to engage in this proceeding or any appeal therefrom, or for the applicant to advise the Australian Health Practitioners Regulatory Authority of the outcome of this proceeding.