Health Ombudsman v Berkeley[2021] QCAT 179

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

Introduction

1. [1]
   The Director of Proceedings on behalf of the Health Ombudsman (applicant) has referred a matter regarding Geoffrey Berkeley (respondent) to the Tribunal pursuant to section 103(1)(a) and 104 of the Health Ombudsman Act 2013 (Qld) (HO Act). The applicant seeks a finding that the respondent has behaved in a way that constitutes unprofessional conduct and consequently seeks orders for sanction.
2. [2]
   There is no dispute between the parties as to the relevant facts of the matter alleged to constitute the conduct. Although some matters in a statement of agreed and disputed facts are disputed by the respondent, the applicant submits that such factual dispute does not require a resolution by the Tribunal and, for that reason, the Tribunal will not have regard to those factual matters disputed by the respondent but will instead have regard only to those agreed matters in the statement of agreed and disputed facts.
3. [3]
   The parties are also agreed as to the appropriate characterisation of the conduct as unprofessional conduct. The parties are also agreed that appropriate orders by way of sanction are that the respondent be reprimanded.
4. [4]
   The respondent is 52 years of age and has held continuous registration as a podiatrist since first attaining registration in 1992. He has no previous disciplinary or criminal history. From 2006, the respondent worked as a registered podiatrist at Yeronga Podiatry and, since 2018, has been the owner and operator of Berkeley Podiatry at the same address where Yeronga Podiatry operated. The conduct the subject of the referral occurred in 2016 when the respondent was a registered podiatrist at Yeronga Podiatry.

Conduct

5. [5]
   The female patient (the patient) was 19 years of age at the time of the conduct.
6. [6]
   In January and February 2016, the patient attended upon a general practitioner including, it seems, in relation to a complaint regarding her foot. On 14 July 2016, the general practitioner referred the patient to the respondent.
7. [7]
   On 15 July 2016, the patient attended for a podiatry appointment with the respondent. At this consultation, the respondent examined the patient’s foot and discussed pain associated with her injury. The patient attended a further appointment with the respondent on 21 July 2016 and the patient’s foot was examined and MRI results were viewed. On 28 July 2016, the patient attended for a further podiatry appointment with the respondent. During this consultation, the respondent fitted the patient with orthotics.
8. [8]
   On 3 August 2016, the respondent initiated text message contact with the patient and engaged in a series of text messages with the patient, including:

Morning, [REDACTED], How is your foot Have you been for a jog

Would you like to go for a run sometime!! Let me know??

Do you have Russian or Ukrainian background ??

We should have a spar [in reference to boxing].

I’m so fast I turn off the light switch in my room and I’m in bed before the room gets dark!!

Thanks, [REDACTED] the patient Lol.

9. [9]
   On the same day, the respondent telephoned the patient and had a conversation lasting approximately thirteen minutes.
10. [10]
    On 5 August 2016, the respondent engaged in a series of text messages and telephone conversations with the patient and invited the patient to his residence. At approximately 6.30 pm when the patient arrived at the respondent’s residence, the respondent answered the door wearing only a towel. The patient told him to put some clothes on. The respondent and the patient sparred (boxing, by the patient punching the respondent’s hands) for a while. The respondent and the patient had an arm wrestle. The respondent and the patient made dinner together. The respondent massaged the patient while she was lying on his couch, which included him gently tapping the patient’s buttocks, saying to the patient that she had a “nice ass” and laying his body down on top of the patient and asking her to try and push up, to which the patient told him to get off her. The patient then gave the respondent a massage while he was lying on his couch, during which the patient massaged the respondent’s feet, legs, back, hands, ears and head, scratched the respondent, smacked the respondent’s buttocks hard and ran her hands down his body and touched his bottom and his hips.
11. [11]
    On 6 August 2016, the respondent engaged in a series of text messages with the patient including, “my ass is a little sore from your slap” and had a telephone conversation with the patient lasting approximately 10 minutes.
12. [12]
    On 7 August 2016, the respondent engaged in a series of text messages with the patient, including:

Respondent: Your very young but I find myself thinking of you quite a lot.

Patient: What is it you want!?

Respondent: You

 I would love to get to know you more [REDACTED]! M wouldn’t say no to another massage.

Patient: I want to know you more too, Geoff. And I think that would be fun... whatever this is, I need to take this slowly. As in we have to be friends (who, yes, can massage, scratch, play, hug, slap? :P maybe wrestle, etc.) Does this sound alright?

Respondent:  I felt lots of pent-up passion between us! I can’t get that out of my head

Patient:  Regardless, you didn’t answer my question :P

Respondent: Sounds great [REDACTED]! Slowly is perfect for me! Do you think we can wrestle soon?

You do have a nice bum

That’s why I had to rub it!!

Hope you enjoyed it

Did you like my arse

Patient:  What do you think

I kept grabbing it. And I will grab it in the future if you let me

Respondent:  Mmmmmm! How could I resist

Your now turning me on so ......

I’d better go have a shower!

13. [13]
    The respondent further texted:

Have you ever been tied up

14. [14]
    The respondent and the patient spoke on the telephone twice that day.
15. [15]
    On a date between 5 and 9 August 2016, the patient’s mother attended upon her GP and expressed concerns she had about her daughter dating the respondent. The GP advised her to contact the Australian Health Practitioner’s Regulation Agency.
16. [16]
    On 9 August 2016, the patient’s mother made a complaint to the Office of the Health Ombudsman about the respondent being in a relationship with the patient.
17. [17]
    On 11 August 2016, the respondent telephoned the patient twice. The patient attended upon the respondent at his residence and told the respondent that her mother had made a complaint to her GP and the Health Ombudsman. The respondent told the patient to tell her GP that she had come over to his residence for “running advice”. The respondent and the patient left the respondent’s residence and got in the respondent’s motor vehicle. The respondent telephoned the patient’s GP and told him that he did not do anything wrong and had ended the patient-podiatrist relationship with the patient. The respondent telephoned the patient’s mother and had a conversation during which he said, “please don’t report me”, apologised and said he would not spend any more time with the patient. The respondent told the patient to keep the massages a secret between them and drove her to her university. He had a later telephone conversation with her that day.
18. [18]
    On 12 August 2016, the patient attended a podiatry appointment with the respondent, during which she was fitted with orthotics. The respondent talked with the patient about running and said something to the patient about if she was only 10 years older.
19. [19]
    On 24 August 2016, the patient and the respondent had telephone contact by text message and conversations, and met at a café and had a conversation. Later that evening, the respondent and the patient agreed via text message not to meet again and to end the relationship. The respondent and the patient have had no further contact since that time.
20. [20]
    The patient attended upon a psychologist on 26 September 2016, 19 October 2016 and 15 November 2016, during which sessions she discussed her feelings towards the respondent. She told her psychologist that she was struggling to get over him. She told the psychologist that, at the time of her contact with the respondent outside the treating relationship, she was lonely and did not feel close to anyone else at the time. The patient enjoyed the respondent’s company and was angry when it was cut off, missed him a lot and felt that she had betrayed him. She told her psychologist that she was sexually interested in the respondent and felt that it was a mutual attraction. She stated that she was not over him, was feeling very sad as he was on her mind all the time and missed him so much. She expressed concern as to what was going to happen to the respondent and hoped that he was okay and did not get into a lot of trouble. She said that she felt bad about what had happened.

Investigation

21. [21]
    On 6 October 2016, the respondent was interviewed by investigators from the Office of the Health Ombudsman.
22. [22]
    Upon being shown screenshots of text messages between him and the patient, the respondent confirmed that the text messages were from him and between him and the patient. He admitted initiating text message contact with the patient on 3 August 2016. He admitted to inviting the patient to his residence on 5 August 2016, making her pizza and watching the football together, sparring, arm wrestling, and giving the patient a massage on his couch, where he massaged her legs, glutes, and probably the top of her ITB. He admitted to the patient giving him a massage on his couch where she massaged his legs, hamstrings and calves and slapped him really hard on the backside. He admitted telephoning the patient’s general practitioner and stating that he did not do anything wrong. He admitted telephoning the patient’s mother on two occasions.
23. [23]
    The respondent maintained the physical contact was “completely innocent” on his part, that the relationship was merely a friendship and he was not pursing any more serious relationship with the patient. During the course of the interview, he made the following statements:

In no way did I ever think about having a relationship with her, number one because of the age difference. I wouldn’t even feel normal being around someone that young.

…

The whole time I never ... it might look I was keen on getting to know this girl, but at no time was it any more than just as a friend.

24. [24]
    When asked whether he wanted a relationship with the patient, he replied:

Absolutely not. I’m not the least bit attracted to her. She would not understand me, she would not fit into my life. My children would hate her. They hate any woman that I go anywhere near, and at no stage did I ever think about having a relationship ... and I told her that. I told her that she’s far too young for me, and that it’s just out of the question.

25. [25]
    When asked about the text exchange during which the respondent asked, “What is it you want?” and the respondent replied “You”, the respondent stated:

So there was obviously some kind of dialogue between us, and it looks like I basically said to her that... yeah, it looks like, to me it looks like I said, “you” but at no stage did I ever really mean that. I can say something but I don’t mean it. But at no stage did I ever feel like I wanted a relationship with her.

26. [26]
    When questioned about texting the patient love hearts and kisses or lips, the respondent stated:

Well, she previously was a patient of mine and I told her that basically anything, any kind of communication or anything we do or say outside of here is not... it’s got nothing to do with my professional relationship with you. And sending love hearts and kisses doesn’t really mean that I love her.

27. [27]
    When further questioned about the appropriateness about the text message exchanges, the respondent stated:

Well, I’ve never done that before and I realise, coming here today, that I stepped over my boundaries as a podiatrist and I would... and I would basically, I would not do that again. However, there was no, apart from just tongue-in-cheek, it didn’t mean anything to me. I wasn’t trying to have a relationship with the girl, I wasn’t trying to manipulate her in any way.

28. [28]
    The respondent further stated:

Well, not appropriate, no. But my exchange of text messages was just basically, in my head, just innocent flirting. I wasn’t thinking anything apart from just that: innocent flirting.

29. [29]
    When questioned as to the appropriateness of the text “you are now turning me on so I had better go and have a shower”, the respondent stated, “That’s certainly not. Once again, to me, that was just innocent texting. I wasn’t ... I didn’t mean it.”
30. [30]
    The respondent was adamant that he didn’t regard the patient as naive.

Characterisation of conduct

31. [31]
    Both parties submit that the respondent’s conduct should be characterised as unprofessional conduct as opposed to professional misconduct.
32. [32]
    Whether the 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.
33. [33]
    In section 5 of the Health Practitioner Regulation National Law (Queensland) (National Law), “unprofessional conduct” is defined in section 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.”
34. [34]
    “Professional misconduct” is relevantly defined in limb (a) of the definition in section 5 of the National Law as including “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.”
35. [35]
    The meaning of “substantial” was considered by the Full Court of the Supreme Court in South Australia in Fittock v Legal Profession Conduct Commissioner (No 2) [2015] SASCFC 167 of 110:

...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…

36. [36]
    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 have been greatly assisted by the views expressed by all the assessors.
37. [37]
    The parties have referred to the decision of the Tribunal in Health Ombudsman v ORC^[1] as providing assistance as to the characterisation of the respondent’s conduct. In that matter, both parties submitted that the respondent’s conduct should be characterised as unprofessional conduct rather than professional misconduct. The Tribunal accepted those submissions, stating that “important considerations in that regard were the extent of the boundary violation and the relative inexperience of the respondent in that matter.”
38. [38]
    In that matter, the then 33-year-old medical practitioner was in the first month or so of an internship as a junior health officer in a regional public hospital when he treated a 27 year old female patient in the sexual health service clinic. After conducting intimate examinations of the patient, 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. The respondent texted the patient inviting her to meet him for a drink at a local bar. The patient agreed and they met at the bar that night. After consuming two or three drinks, they left and walked along an esplanade and the patient kissed the respondent on his cheek. They attended another bar where the patient had a drink and the respondent drove the patient to her residence. The respondent and patient agreed to have a meal the following evening and the patient again kissed the respondent on his cheek before exiting the car and the respondent driving away. 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 meet for dinner at a later time. The patient responded that she did not think it was a good idea to meet again and the respondent accepted that decision.
39. [39]
    In my view, the matter now before the Tribunal involves more serious misconduct by the respondent than in Health Ombudsman v ORC. The respondent here was a much more experienced practitioner at the time of the conduct. The extent of the boundary violation was greater, given the greater contact between the respondent and the patient. The greater age disparity between the respondent and the patient and what the Tribunal discerns as her relative naivety also make this case a more serious example of a boundary violation than in Health Ombudsman v ORC.
40. [40]
    The significance of an agreed position of the parties in disciplinary matters was discussed fairly recently by the Honourable Peter Lyons QC, Judicial Member, in Legal Services Commissioner v McLeod.^[2] The Honourable Peter Lyons QC referred to applicable principles set out by the High Court in Commonwealth v Director, Fair Work and Building Industry Inspectorate^[3] including:

there is an important public policy benefit in receiving, and if appropriate, accepting agreed penalty submissions;

…

upon persuasion of the accuracy of the parties’ agreement as to facts and consequences and that the penalty that the parties propose is an appropriate one, it is a highly desirable practice for the court or Tribunal to accept the parties’ proposal.

41. [41]
    The Honourable Peter Lyons QC referred to the statement by Vice President Judge Hampel in Victorian Legal Services Commissioner v Hyatt:^[4]

It is clear that it is my duty to determine the level of conduct alleged, and to impose sanctions. No agreement between a regulator and a regulated practitioner...can supplant that duty. Subject to that overriding responsibility, it is appropriate for the parties to put an agreed position before the Tribunal. If satisfied the agreed penalty is an appropriate one, it follows I should not lightly depart from that agreed position.

42. [42]
    The Honourable Peter Lyons QC concluded:

The Tribunal accepts that, if satisfied of the accuracy of the agreement of the parties as to the facts and their consequences, it should not lightly depart from the agreed position.

43. [43]
    I accept the accuracy of that statement of the law by the Honourable Peter Lyons QC. There are important policy reasons why parties before this Tribunal, in proceedings of this type, should be encouraged to reach agreed positions as to characterisation of conduct and orders for sanction and the Tribunal should not lightly depart from such an agreed position. However, the overriding responsibility of the Tribunal is to satisfy itself as to an appropriate characterisation of conduct and appropriate orders for sanction.
44. [44]
    In this matter, after the benefit of advice from all the assessors, I am satisfied that the agreed position submitted by the parties would not result in appropriate orders, given the admitted conduct by the respondent.
45. [45]
    The respondent’s conduct was deliberate and ceased only upon him and the patient becoming aware of the complaint by the patient’s mother to the Office of the Health Ombudsman.
46. [46]
    I consider that the respondent was less than frank in his interview with investigators of the Office of the Health Ombudsman. I considered carefully the whole of the contents of that interview and it is characterised by some asserted, inexplicable failings of recollection on the part of the respondent and, in my view, reluctant but more expansive admissions only upon questioning as to the detail of text messages that occurred between the respondent and the patient.
47. [47]
    The statements by the respondent that he did not have any interest in an intimate relationship with the patient and was engaged in merely innocent flirting is quite inconsistent with the terms of text messages to the effect that the respondent was thinking about the patient a lot and wanted her and would love to get to know her more, expressions of “pent-up passion”, compliments upon her “nice bum”, and the need for the respondent to have a cold shower because the patient was turning him on.
48. [48]
    It is a relevant factor that the relationship did not continue beyond three and a half weeks but, as I have already mentioned, it seems that it only ceased because of the intervention of the patient’s mother.
49. [49]
    It is, of course, a relevant factor that the only physical intimacy involved mutual massages and that the respondent and the patient did not engage in any sexual relations. However, the tone of the contact between the respondent and the patient was such that the irresistible inference is that the respondent would have been open to greater sexual intimacy and, at least, indicated a willingness to engage in greater physical intimacy, if not specifically or explicitly encouraged the patient to do so.
50. [50]
    The Tribunal is entitled to take into account the relevant codes of conduct of practitioners in characterising conduct. The Podiatry Board of Australia Code of Conduct provides as follows:

8.2  Professional Boundaries

Professional boundaries allow a practitioner and the patient/client to engage safely and effectively in a therapeutic relationship. Professional boundaries refers to the clear separation that should exist between professional conduct aimed at meeting the health needs of patients or clients and a practitioner’s own personal views, feelings and relationships which are not relevant to the therapeutic relationship.

Professional boundaries are integral to a good practitioner-patient/client relationship. They promote good care for patients or clients and protect both parties.

Good practice involves:

3. a)
   maintaining professional boundaries.

3. b)
   never using a professional position to establish or pursue a sexual, exploitative or otherwise inappropriate relationship with anybody under a practitioner’s care…

3. c)
   recognising that sexual and other personal relationships with people who have previously been a practitioner’s patients or clients are usually inappropriate, depending on the extent of the professional relationship and the vulnerability of a previous patient or client...

51. [51]
    The respondent’s conduct clearly constituted a breach of that code of conduct.
52. [52]
    It is also relevant in characterising the conduct that it did have a significant psychological impact upon the patient who was left with feelings of guilt for the consequences to the respondent and was troubled enough to seek psychological treatment.
53. [53]
    In my view, the conduct of the respondent constitutes a large or considerable departure from the standard reasonably expected of a registered podiatrist of an equivalent level of training or experience. It meets the definition of “professional misconduct” in limb (a) of the definition in section 5 of the National Law.
54. [54]
    Pursuant to section 107(2)(b)(iii) of the HO Act, the Tribunal decides that the respondent has behaved in a way that constitutes professional misconduct.

Sanction

55. [55]
    The agreed position of the parties as to sanction was that a reprimand would be an appropriate response to the conduct of the respondent.
56. [56]
    The position of the parties is noted and the significance of such a joint position is as earlier stated. However, the Tribunal does not consider that a reprimand alone would adequately meet the purposes of sanction.
57. [57]
    The purposes of sanction are protective, not punitive, in nature. In the exercise of that protective jurisdiction, it is appropriate for the Tribunal to take into account the importance of the maintenance of professional standards, the preservation of public confidence in the profession of podiatry and the need to deter the respondent and also other health practitioners from engaging in like conduct.
58. [58]
    Mitigating factors include the lack of any prior disciplinary or criminal history, the fact that there has been no other disciplinary breaches during the lengthy period of some five years since the conduct, and the respondent’s cooperation in the conduct of proceedings before this Tribunal. It is also relevant that the respondent has completed an appropriate course of education on professional boundaries.
59. [59]
    In relation to sanction, the parties have referred again to Health Ombudsman v ORC where the Tribunal accepted joint submissions that a reprimand was an appropriate order by way of sanction for the unprofessional conduct of the respondent. For reasons already stated, I consider the conduct of the respondent in this matter to be significantly more serious than that of the respondent in Health Ombudsman v ORC.
60. [60]
    The parties have also referred to the Medical Board of Australia v Holding.^[5] In that matter, the extent of the professional boundary breach was significantly less serious than that of the respondent in this matter. However, his unprofessional conduct in that regard was to be viewed in a wider context in that he was dishonest in the course of the investigation of his conduct. In that matter, in addition to a finding of unprofessional conduct and a reprimand, the respondent was ordered to pay a fine of $5,000 to the Medical Board of Australia.
61. [61]
    The parties also referred to the Nursing and Midwifery Board of Australia v Tainton^[6] where, in addition to a reprimand, the registered nurse was disqualified from applying for registration as a registered nurse for a period of three months which would follow upon a period of about two years since she had surrendered her registration. The professional misconduct in Tainton was more serious than that of the respondent in that the boundary violation involved a patient who was a prisoner in the correctional centre in which the respondent worked.
62. [62]
    It is trite to say that each case depends upon its own facts and none of the comparative cases referred to by the parties are on all fours with the circumstances of the respondent in this matter.
63. [63]
    Given the lack of any other disciplinary or criminal history, the respondent’s good conduct since the conduct the subject of the referral, his completion of education of professional boundaries and the no doubt salutary effect upon him, not only of the proceedings but of a finding of professional misconduct and orders for sanction, this is not a case where the protective purposes of sanction require any period of preclusion from practice.
64. [64]
    A reprimand, of course, is not a trivial penalty and has the potential for serious adverse implications for a professional person. It will remain on the publicly available register until such time as the Podiatry Board of Australia chooses to remove it from such a register. Nevertheless, it is the decision of the Tribunal that a reprimand alone would not adequately express the denunciation of the respondent’s professional misconduct or adequately address considerations of general deterrence and protection of the reputation of the profession.
65. [65]
    Pursuant to section 107(3)(a) of the HO Act, the Tribunal reprimands the respondent.
66. [66]
    Pursuant to section 107(3)(c) of the HO Act, the Tribunal requires the respondent to pay a fine of $5,000 to the Health Ombudsman with six months to pay.

Costs

67. [67]
    The parties are agreed that each party should bear their own costs for the proceeding and there is no reason why the Tribunal would depart from the default position pursuant to section 100 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld). The Tribunal will further order that each party to the proceeding must bear the party’s own cost for the proceeding.