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- Unreported Judgment
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Health Ombudsman v Stephens  QCAT 510
nicholas martyn stephens
Occupational regulation matters
16 December 2020 (Ex Tempore)
16 December 2020
Judicial Member J Robertson
Dr John Quinn
Ms Margaret Ridley
Professor Judy Searle
PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – MEDICAL PRACTITIONERS – DISCIPLINARY PROCEEDINGS – PROFESSIONAL MISCONDUCT AND UNPROFESSIONAL CONDUCT – referral by applicant – whether the respondent’s sexual relationship with the applicant amounts to professional misconduct – whether respondent’s conduct is unprofessional conduct or unsatisfactory professional performance – relevance of respondent’s remorse and cooperative approach
Health (Drugs and Poisons) Regulation 1996 (Qld)
Health Ombudsman Act 2013 (Qld) s 8
Health Practitioner Regulation National Law (Queensland)
Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 32, 66(1)
Craig v Medical Board of South Australia  79 SASR 545
Health Ombudsman v Mutasa  QCAT 315
Medical Board of Australia v Davis  QCAT 215
Medical Board of Australia v Fitzgerald  QCAT 425
Medical Board of Australia v Vucak  QCAT 367
Solomon v Australian Health Practitioner Regulatory Agency  WASC 203
C Lloyd, of the Health Ombudsman
G W Diehm QC, instructed by Avant Law
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
- By Application filed on 30 August 2019, the Applicant Director referred these disciplinary proceedings to the Tribunal. The referral contains three allegations. Allegation 1 is that the respondent breached professional boundaries by engaging in a sexual relationship with a patient between 30 June 2012 and 7 September 2012. The Director alleges, and the respondent agrees, that as a result, the respondent has engaged in professional misconduct. Allegation 2 relates to the post-dating of prescriptions for the same patient on three occasions in 2014 and early 2015, and Allegation 3 is that the respondent prescribed controlled drugs to the same patient for a period in excess of two months, and failed to provide notice to the chief executive as required by certain provisions of the Health (Drugs and Poisons) Regulation 1996 (Qld) (Regulation). The Director alleges, and the respondent accepts, that in relation to allegations 2 and 3, he has behaved in a way that constitutes unprofessional conduct.
- It is common ground between the parties that, at all relevant times, the respondent was registered under the Health Practitioner Regulation National Law (Queensland) (the National Law) as a medical practitioner with the Medical Board of Australia (the Board); a health service provider within the meaning of section 8(a)(i) of the Health Ombudsman Act 2013 (Qld) (the Act); subject to the requirements of the Regulation; subject to the registration standards, codes and guidelines promulgated by the Board as to what constitutes appropriate professional conduct or practice for the medical profession; and working as a general practitioner at the Daisy Hill Surgery, Daisy Hill, in Brisbane.
- The parties have filed an agreed statement of facts, and in his response to the referral filed on his behalf by his experienced lawyers, the respondent admits the conduct the subject of the allegations. The parties diverge marginally in relation to sanction in that the respondent contends for a one-month suspension from practice, and the applicant argues for a three-month suspension.
- It is accepted that where the parties agree (or essentially agree), as to the characterisation of the conduct and the appropriate sanction, the Tribunal should not depart from that agreement (especially in a case such as this, where the respondent is legally represented by experienced lawyers in the field), unless the agreed sanction “falls outside the permissible range of sanction for the conduct.”
- The respondent was born on 10 May 1949 and is currently 71 years of age. He was 63 at the time of the conduct referred to in the allegations. He holds current general and specialist registration (general practice). At all relevant times, he worked as a general practitioner at the Daisy Hill Clinic (the clinic) of which he is and was a part-owner.
- He does have a notification history;
- (a)a complaint dated 26 February 1994 in relation to an alleged failure to recognise in test results that a pregnant patient was carrying a gene for cystic fibrosis. The complaint was conciliated by the Health Rights Commission.
- (b)a complaint dated 8 September 1994 relating to alleged excessive prescribing of pain medication. The complaint was referred to the Health Rights Commission.
- (c)an investigation undertaken in 1992 into allegations of post-dating prescriptions for anabolic steroids. The Medical Board of Queensland wrote to the practitioner informing him of the Board’s disapproval of his actions.
- (d)a complaint made in February 1982 relating to the date recorded on a medical certificate. No further action was taken by the Medical Board of Queensland.
- The practitioner’s registration has never been subject to action by way of conditions or suspensions on or of his registration.
- His patient, AB, was born on 29 September 1960. She had been a patient at the clinic since 1992. She and the respondent knew each other outside the professional relationship through community contacts. She was occasionally a patient of his from 2000 to 2015, although, until around April 2013 until February 2015 he was not her primary treating doctor.
The Relevant Conduct
- Sometime in the first half of 2012, the respondent and AB met for coffee to discuss her concerns about an institution with whom both had a great deal of contact and involvement. Between 30 June 2012 and 7 September 2012, they had a consensual sexual relationship, comprising two occasions when they had sexual intercourse at the clinic, one occasion at his beach house, and on one occasion at a hotel during a conference.
- It is agreed that AB had been treated for depression at the clinic since early 2003. She had been prescribed antidepressants by other doctors, however, it is agreed that on four occasions (twice in 2005, once in 2011 and once in 2012), the respondent wrote prescriptions for antidepressant medication for AB.
- She had also been treated at the clinic since 2006 for chronic back pain, which included the prescribing of Schedule 8 pain relief medication.
- During 2012, another doctor was AB’s primary treating doctor, and the prescription for antidepressants written by the respondent on 4 January 2012 was in accordance with the standard dose prescribed in 2011 by the other doctor, and she was due for a repeat. The practitioner continued to treat AB from April 2013 until April 2015 after her usual doctor had left the practice. During that period, he prepared a mental health plan for her to continue to see her treating psychologist, and prescribed antidepressant medication and anti-anxiety medication for her.
- In 2013, AB developed a serious blood disease.
- The respondent did not bring to mind AB’s mental health history at the time of the sexual relationship, and did not perceive her to have a special vulnerability at that time. He has acknowledged subsequently, and still does, that she did have a special vulnerability and that, in any event, the general vulnerability of patients arising out of the doctor-patient relationship meant that it was improper for him to have engaged in the sexual relationship, and he ought to have realised that at the time, and refrained from doing so.
- Allegation 2 relates to the post-dating of Schedule 8 controlled drugs for AB. On 28 April 2014, he gave her three prescriptions, two of which were post-dated, each for a 14-day period. AB filled the second post-dated prescription some days after its date but did not fill the second one dated 12 May 2014. On 6 January 2015, he wrote eight prescriptions for AB, five of which were post-dated. AB filled all the post-dated prescriptions.
- On her last appointment with him on 3 February 2015, he wrote eight prescriptions, five of which were post-dated. All those prescriptions were filled by AB.
- The parties agree that notification (c) referred to earlier, although extremely dated, is relevant to allegation 2. It is agreed that at that time the Board wrote to the respondent in which it stated (inter alia), “The Board takes a very serious view of any breaches of the law in relation to the writing of prescriptions.”
- Allegation 3 relates to the failure of the respondent to give the chief executive a written report to that person as required by sections of the Regulation. He prescribed oxycodone to AB from 5 August 2013 to 25 June 2014 and did not comply with the lawful requirement to give notice. Similarly, he prescribed hydromorphone to AB from 15 July 2014 to 24 February 2015 without providing the required notice.
Characterisation of The Conduct
- The applicant has the responsibility of proving that the admitted conduct amounts to professional misconduct and/or unprofessional conduct.
- The respondent admits that the boundary violations contained in allegation 1 amounts to professional misconduct as defined in the National Law.
- The parties agree that although he did not have in mind her mental health history during what was a brief sexual relationship, nor did he perceive her to have a special vulnerability at the time, he has since acknowledged, and still does, that she did have a special vulnerability and that, in any event, the power imbalance in the doctor-patient relationship meant that it was improper for him to have engaged in the sexual relationship, and he ought to have realised that and refrained from doing so.
- In relation to allegation 1, the applicant alleges, and the respondent admits, that the respondent’s conduct amounts to professional misconduct, being unprofessional conduct that is substantially below the standards reasonably expected of a registered health practitioner of an equivalent level of training or experience.
- The standards, guidelines and codes developed by the Board are admissible as evidence as to what constitutes appropriate professional conduct or practice for medical practitioners in disciplinary proceedings such as these.
- The respondent admits to contravening relevant and applicable codes of conduct and guidelines by:
- (a)failing to maintain professional boundaries;
- (b)using his professional position to establish and pursue a sexual, exploitative and inappropriate relationship with a patient under his care; and
- (c)acting unethically and unprofessionally by engaging in a sexual relationship with a patient, regardless of whether or not the patient consented to the relationship or the patient initiated the sexual relationship.
- The relevant guideline addresses the power imbalance between doctors and their patients:
The doctor-patient relationship is inherently unequal. The patient is often vulnerable. In many clinical situations, the patient may depend emotionally upon the doctor. It is an abuse of this power imbalance for a doctor to enter into a sexual relationship with a patient.
- The respondent’s admitted conduct in relation to allegation 1 is clearly in breach of the code of conduct and guideline specifically designed to discourage such conduct.
- The Tribunal finds in relation to allegation 1 that the respondent has engaged in professional misconduct.
- In relation to allegations 2 and 3, the applicant alleges that the conduct amounts to the more serious finding of unprofessional conduct, whereas the respondent has, up until the filing of the recent submission, submitted that his conduct comes within the definition of “unsatisfactory professional performance” as defined by section 5 of the National Law. In Mr Diehm QC’s submissions filed on 24 July 2020, a submission is made “that the distinction (as between the two definitions in this case) is a subtle one”, and “the point is no longer pressed”. I agree with that submission.
- The applicant refers to Medical Board of Australia v Davis  QCAT 215 in which reference is made to a statement by Mitchell J in Solomon v Australian Health Practitioner Regulatory Agency  WASC 203 at  ( in Davis), in which his Honour sets out to distinguish between the two classes of misconduct.
- In the opinion of the Tribunal, the factors that are relevant here is that the post-dating of prescriptions has to be viewed in the light of similar but perhaps more serious conduct very early in his career, and the failure to comply with the Regulation did involve the prescribing of schedule 8 drugs to AB over quite a lengthy period, and the Regulation is there to enable the prescribing of such dangerous drugs to be monitored. It is not suggested that the prescribing was inappropriate, quite the contrary, but the respondent, as an experienced general practitioner, should have been aware of, and complied with, both the prescribing practices expected of him and his reporting obligations under the Regulation. The Tribunal is satisfied that the applicant has proved unprofessional conduct in relation to both allegations 2 and 3. Mr Diehm QC agrees with my proposal to classify all conduct under the rubric of professional misconduct in the ultimate orders of the Tribunal.
- The purposes of these proceedings is protective and not punitive. The paramount guiding principle that informs the Tribunal’s jurisdiction to sanction health practitioners who have engaged in professional misconduct, is the health and safety of the public.
- The respondent has filed a number of affidavits in these proceedings. He states that he enjoys his work immensely, works four days a week an average of 10 hours a day. He estimates that he sees 300 patients per fortnight. He hopes to work until 75, gradually reducing his hours. The many references annexed to the affidavit of his solicitor speak very highly of him as a respected and dedicated general practitioner whose professional skills are exceptional.
- He has expressed remorse from when the notification was first bought to his attention (I infer) in early 2015. The Tribunal is satisfied that his remorse is genuine, although at times prior to that he showed some lack of insight.
- I agree with Mr Diehm QC’s submission that the Tribunal should accept that the very long period of time between the complaint made to the applicant, nearly five and a half years ago, until this matter reached a final hearing today has been, of itself, a very particular burden upon the respondent. As he notes, the applicant has rightly acknowledged that the delay is not of the respondent’s making.
- At the outset of the hearing, Mr Lloyd very fairly and frankly informed the Tribunal of the reasons behind the delay, and it is accepted that some of those administrative and cultural factors that existed back in 2015 have now been addressed by the Office of the Health Ombudsman.
- The Tribunal accepts that the respondent has not suffered the same financial hardship as was present in Health Ombudsman v Mutasa  QCAT 315, however, the principle is the same, and that it is such a long delay, particularly for a practitioner in the twilight of his career, is a relevant factor in mitigation.
- It is accepted that boundary violations of this kind are to be strongly deterred, however, in the many years since the notification, the respondent has (at his own expense) undertaken extensive counselling regarding boundary violations with consultant psychiatrist Dr John McCauley, who has provided a report for the Tribunal. He has seen the respondent on many occasions since September 2015. Dr McCauley also notes, relevant to the delay in finalising these proceedings, that, unsurprisingly, the respondent is suffering mild depressive symptoms directly relating to the matters now before the Tribunal. In Dr McCauley’s report dated 19 March 2020, he sees no need for any further treatment and opines a very positive prognosis for the respondent.
- The Tribunal also notes that the respondent, again at his own expense, has undertaken courses mandated by his insurer directed at obtaining further education in relation to prescribing practices and complying with the law in relation to that issue.
- It is relevant that the applicant does not seek the imposition of any conditions upon the respondent’s registration once a period of suspension has been completed. It is an appropriate recognition that the respondent now presents as no ongoing risk to the health and safety of the public, with which the Tribunal agrees.
- Much has been said in the jurisprudence about the nature of the jurisdiction exercised by the Tribunal in proceedings such as this. Craig v Medical Board of South Australia  79 SASR 545 at 553-555 sets out the various purposes that may be served by the imposition of a sanction:
- (a)preventing practitioners who are unfit to practice from practising;
- (b)securing maintenance of professional standards;
- (c)assuring members of the public and the profession that appropriate standards are being maintained and that professional misconduct will not be tolerated;
- (d)bringing home to the practitioner the seriousness of their conduct;
- (e)deterring the practitioner from any further departures from appropriate standards;
- (f)deterring other members of the profession that might be minded to act in a similar way; and
- (g)imposing restrictions on the practitioner’s right to practice so as to ensure that the public is protected.
- The Tribunal adopts the submission made by Mr Diehm QC on behalf of the respondent in relation to allegation 1. The key features of that proved allegation are that the sexual relationship consisted of four encounters over a period of about 10 weeks, and it occurred about eight years ago. The respondent was acquainted with the patient outside the bounds of his clinical practice, and had dealings and engagement with her prior to the relationship in that capacity. Initially, after the sexual relationship ended, the respondent did continue to treat her, until circumstances changed, when her more regular treating doctor at the clinic left the practice.
- While the respondent did then treat the patient over a period of almost two years, he limited his interactions with her to strictly clinical matters, until coming to the recognition that he should simply cease treating her at all. While the respondent had, on a few occasions, prescribed antidepressants for the patient, in the context of her having been prescribed that medication by other doctors at the practice, with the respondent principally seeing the patient for musculoskeletal issues, it is an agreed fact that the respondent was not conscious of her vulnerability on account of her mental health history at the time of the sexual relationship, and he did not perceive her to have a special vulnerability at that time. It is not in dispute between the parties that the patient did have a vulnerability on that account, in addition to the general vulnerability of a patient arising out of the relationship between doctor and patient.
- Not surprisingly, all the cases relied upon by the parties can be distinguished. As far as I can tell, none of the cases involving boundary violations of this nature by a medical practitioner did not involve some period of suspension.
- The applicant appropriately concedes that the cases referred to in its submission are objectively more serious, and in at least two of the cases the parties agreed on the orders to be made. Medical Board of Australia v Vucak  QCAT 367, the case relied upon by Mr Diehm QC in his submission, is the most comparable, where the practitioner, a specialist plastic surgeon, admitted to four acts of sexual intercourse with a patient over three months. He was suspended for three months after a contested hearing.
- The Tribunal in that case made adverse credibility findings against both the patient and the practitioner and made findings that the doctor was slow to recognise that his conduct was inappropriate, even while giving evidence before the Tribunal. This can be contrasted with the remorse shown by the respondent here, and the exceptional steps taken by him to address the underlying causes of his misconduct. By taking the cooperative approach he has to these disciplinary proceedings, he has obviated the need for AB to give evidence, which would no doubt have been highly stressful for her, especially after so many years.
- It is agreed between the parties that a reprimand is appropriate. It has often been said in the cases that a reprimand is not a trivial penalty. It is a matter of public record that is apt to discourage other doctors from engaging in such conduct.
- The Tribunal agrees that a short period of suspension is within the appropriate range and, in this case, opts for the period of one month submitted for by the respondent for the reasons articulated above. Mr Diehm has asked that the commencement of that period of the suspension be 1 January 2021 to cater for the needs of patients already booked into his client’s clinic and, in my opinion, that is appropriate.
- The orders of the Tribunal are as follows:
- The respondent has behaved in a way that constitutes professional misconduct.
- The respondent is reprimanded.
- The respondent’s registration be suspended for a period of one month as and from 1 January 2021.
- Pursuant to section 66(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) publication of the following is prohibited:
- (a)The contents of a document of thing produced to the Tribunal;
- (b)Evidence given before the Tribunal; and
- (c)Any order made or reasons given by the Tribunal - to the extent that it could identify or lead to the identification of any patient of the respondent or any family member of the patient.
- Published Case Name:
Health Ombudsman v Stephens
- Shortened Case Name:
Health Ombudsman v Stephens
 QCAT 510
Member J Robertson
16 Dec 2020