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Health Ombudsman v BBH[2021] QCAT 197

Health Ombudsman v BBH[2021] QCAT 197

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Health Ombudsman v BBH [2021] QCAT 197

PARTIES:

HEALTH OMBUDSMAN

 

(applicant)

 

v

 

BBH

 

(respondent)

APPLICATION NO/S:

OCR154-20

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

7 June 2021

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Judge Allen QC, Deputy President

Assisted by:

Dr J Cavanagh

Dr J Quinn

Ms A Blair

ORDERS:

  1. Pursuant to section 107(2)(b)(iii) of the Health Ombudsman Act 2013 (Qld), the Tribunal decides that the respondent has behaved in a way that constitutes professional misconduct.
  2. Pursuant to section 107(3)(a) of the Health Ombudsman Act 2013 (Qld), the respondent is reprimanded.
  3. Pursuant to section 107(3)(c) of the Health Ombudsman Act 2013 (Qld), the respondent is required to pay a fine of $15,000 to the applicant within a period of six (6) months.
  4. Each party must bear their own costs of the proceedings.

CATCHWORDS:

PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – MEDICAL PRACTITIONERS – DISCIPLINARY PROCEEDINGS – PROFESSIONAL MISCONDUCT AND UNPROFESSIONAL CONDUCT – where the respondent is a medical practitioner practising in psychotherapy – where the respondent engaged in a platonic relationship with a patient to whom she was providing psychotherapy – where the relationship, which lasted over 22 months, took place during and after the period of the treating relationship – where the parties are agreed as to characterisation of conduct and sanction – whether the respondent’s conduct should be characterised as professional misconduct – what sanction should be imposed

Health Ombudsman Act 2013 (Qld), ss 103, s 104, s 107

Health Practitioner Regulation National Law (Queensland), s 5

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 100

Craig v Medical Board of South Australia (2001) 79 SASR 545

Health Ombudsman v Masamba [2019] QCAT 227

Health Ombudsman v Upadhyay [2020] QCAT 163

Legal Services Commissioner v McLeod [2020] QCAT 371

Medical Board of Australia v Martin [2013] QCAT 376

Nursing and Midwifery Board of Australia v Tainton [2014] QCAT 161

Psychology Board of Australia v Cameron [2015] QCAT 227

REPRESENTATION:

 

Applicant:

Office of the Health Ombudsman

Respondent:

Avant Law

APPEARANCES:

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

Introduction

  1. [1]
    This is a referral of a health service complaint against BBH[1] (respondent), pursuant to sections 103(1)(a) and 104 of the Health Ombudsman Act 2013 (Qld) (HO Act), by the Director of Proceedings on behalf of the Office of the Health Ombudsman (applicant).
  2. [2]
    The applicant alleges, in the Amended Application or Referral filed 12 March 2021, that the respondent has behaved in a way that constitutes professional misconduct and seeks orders for sanction. The respondent admits all substantive paragraphs of the referral in her Further Amended Response, filed 17 March 2021. The parties have jointly filed and rely upon a Further Amended Statement of Agreed Facts and no factual issues remain in dispute. The parties also agree as to the characterisation of the conduct and appropriate orders by way of sanction.

Background

  1. [3]
    The respondent is 46 years old and was first registered as a medical practitioner in Australia on 12 December 2008.
  2. [4]
    At the time of the conduct the subject of the referral, the respondent was undertaking fellowship training with the Royal Australian and New Zealand College of Psychiatrists. As part of this training, the respondent was required to complete a Psychotherapy Written Case after treating a patient for at least 40 one-hour sessions over a six to twelve month period.
  3. [5]
    The respondent has spent much of her career, including after the conduct the subject of the referral and to date, working in at least some capacity as a Psychiatric Registrar. She retains her registration as a medical practitioner.

Conduct

Allegation 1 – the respondent failed to maintain appropriate professional boundaries with a patient.

  1. [6]
    In 2017, at the commencement of the conduct the subject of the referral, the respondent was working as a Psychiatric Registrar at a Brisbane public hospital.
  2. [7]
    A male patient (the patient), who was between 52 and 54 years of age at the time, sought treatment in relation to depression through the mental health service of the public hospital. The patient was initially seen in the Emergency Department of the same hospital on 9 February 2017 with symptoms of depression and suicidal ideation, but with no plan or intent to commit suicide.
  3. [8]
    The respondent was asked to undertake a 24 hour follow-up outpatients’ appointment with the patient on 10 February 2017.

February 2017 to February 2018

  1. [9]
    From approximately 10 February 2017 until approximately 26 February 2018, in her professional capacity as a Psychiatric Registrar, the respondent provided psychotherapy treatment to the patient in relation to depression and PTSD. Treatment sessions generally occurred on a weekly basis.
  2. [10]
    During this period, the patient discussed with the respondent that he was involved in ongoing court proceedings with his estranged wife relating to the custody of his children and settlement of assets following their separation.
  3. [11]
    The respondent deposes in her affidavit that she considered that the patient would be a good candidate for her Psychotherapy Written Case study and asked him to undertake 40 one-hour sessions with her as part of her fellowship training, to which he agreed.[2]
  4. [12]
    The respondent also deposes that her relationship with the patient developed platonically as they started to speak about topics which blurred the professional boundaries between them.[3] She also deposes that at the time she was unhappy in her role in the public hospital and thus did not discuss this progression of her treating relationship with the patient with any supervisors or peers.[4]
  5. [13]
    In January 2018, the respondent ceased working at the public hospital and did not start working at another mental health service immediately.
  6. [14]
    The respondent’s and the patient’s telephone records indicate that, between approximately February 2017 and 27 February 2018, they exchanged approximately 183 SMS messages and approximately 20 telephone calls, most of which were not therapeutically required or justified. These were exchanged at various times of day between approximately 7:00 am and 10:15 pm.

February 2018 to July 2018

  1. [15]
    During this time, the respondent continued to provide psychotherapy treatment to the patient outside of the public health system. She deposes that, by March 2018, the patient had “well and truly met his treatment goals and was no longer in need of psychiatric treatment”.[5] Nonetheless, they continued treatment because the patient was committed to doing the 40 sessions for the respondent’s benefit, and the respondent did not want to “start over” with a new patient after having completed the majority of the sessions.[6]
  2. [16]
    The respondent deposes that, during this period, their relationship became one of “mutual support”.[7] In mid-2018, the respondent and the patient were playing tennis in the same league and venue and the patient had asked the respondent to ride a motorcycle with him. At this point, the respondent asked the patient to formally end their treating relationship, and it ended on around 8 July 2018.
  3. [17]
    The respondent’s and the patient’s telephone records indicate that, between 27 February 2018 and 8 July 2018, they exchanged approximately 1250 SMS messages, approximately 21 MMS messages and approximately 14 telephone calls, which were not therapeutically required or justified. These were exchanged at various times of the day between approximately 7 am and 10:15 pm.

July 2018 to December 2018

  1. [18]
    In approximately October 2018, the respondent made plans to visit Hawaii with the patient as platonic friends. At that time, the respondent had started dating someone else unrelated to these proceedings. The respondent referred to the patient in her enquiries with a travel agent as her “partner”, which she deposes was not intended to imply that she and the patient were in a romantic relationship.[8] The travel agent inadvertently sent an email quotation for the holiday to the patient’s ex-wife. No actual booking was made.
  2. [19]
    As a result of these events, the patient’s ex-wife made a complaint about the respondent to her employer and a notification was made to the Health Ombudsman.[9] Shortly afterwards, the respondent informed the patient that she could no longer have contact with him.
  3. [20]
    The respondent’s and the patient’s telephone records indicate that, between 9 July 2018 and 21 December 2018, they exchanged approximately 1750 SMS messages, approximately 39 MMS messages and approximately 310 telephone calls. These were exchanged at various times of the day between approximately 5:30 am and midnight.

Allegation 2 - the respondent provided information to her employer which was false or misleading, or reasonably likely to mislead attempts to properly and fully investigate and resolve the allegations the subject of Allegation 1.

  1. [21]
    On 21 November 2018, the respondent, when confronted by officers of her employer with the terms of the complaint by the patient’s ex-wife:
    1. (a)
      stated she was vacationing on her own;
    2. (b)
      denied any intention of holidaying with the patient but could not provide any clear explanation how the patient’s details were listed with her own on a travel agency quotation;
    3. (c)
      stated she was fully aware of boundary issues and would not violate them.

Characterisation of the conduct

  1. [22]
    Both parties submit that that the respondent’s conduct should be characterised as professional misconduct.
  1. [23]
    Section 5 of the Health Practitioner Regulation National Law (Queensland) (National Law) defines “professional misconduct” as follows:

professional misconduct, of a registered health practitioner, includes—

  1. (a)
    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; and
  2. (b)
    more than one instance of unprofessional conduct that, when considered together, amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and
  3. (c)
    conduct of the practitioner, whether occurring in connection with the practice of the health practitioner’s profession or not, that is inconsistent with the practitioner being a fit and proper person to hold registration in the profession.
  1. [24]
    The respondent’s conduct was contrary to her professional and ethical responsibilities under applicable codes of conduct and ethics, particularly Good Medical Practice: A Code of Conduct for Doctors in Australia.[10] It was incumbent on the respondent to draw clear professional boundaries and abide by them, and she failed to do so. In doing so, she failed to make the care of the patient her primary concern. She put her patient at risk of harm through a series of poor choices, some of which involved prioritising her own career aspirations over her responsibility as a medical practitioner. This is completely inappropriate, particularly for someone who had been practising for almost a decade at the time.
  2. [25]
    In a mental health context, there is a special dynamic of trust and support that exists between practitioner and patient. This makes the patient especially vulnerable, and there is potential for significant harm to come to these patients if boundaries are not maintained.
  3. [26]
    Although no actual harm came to the patient, it is the potential for harm which renders this conduct serious.
  4. [27]
    Moreover, the false and misleading conduct the subject of allegation 2 was plainly inconsistent with the respondent’s professional and ethical responsibilities.
  5. [28]
    In those circumstances, there is no reason for the Tribunal to depart from the parties’ agreed characterisation of the respondent’s conduct.
  6. [29]
    Pursuant to s 107(2)(b)(iii) of the HO Act, the Tribunal decides that the respondent has behaved in a way that constitutes professional misconduct.

Sanction

  1. [30]
    The purpose of sanction is to protect the public, not punish the practitioner. As has been noted in many previous decisions, often citing Craig v Medical Board of South Australia,[11] the imposition of sanction may serve one or all of the following purposes:
    1. (a)
      preventing practitioners who are unfit to practise from practising;
    2. (b)
      securing maintenance of professional standards;
    3. (c)
      assuring members of the public and the profession that appropriate standards are being maintained and that professional misconduct will not be tolerated;
    4. (d)
      bringing home to the practitioner the seriousness of their conduct;
    5. (e)
      deterring the practitioner from any future departures from appropriate standards;
    6. (f)
      deterring other members of the profession that might be minded to act in a similar way; and
    7. (g)
      imposing restrictions on the practitioner’s right to practise so as to ensure that the public is protected.
  2. [31]
    Given the mental health issues of the patient at the time and the associated treating relationship and dynamic between patient and practitioner in the context of psychotherapy, the respondent’s conduct is a serious failure to adhere to her fundamental obligations as a medical practitioner.
  3. [32]
    Despite initially providing false and misleading information to her employer when questioned about her relationship with the patient and declining to respond to questions during the initial investigation by the Health Ombudsman, the respondent has now accepted the allegations. The respondent and her solicitors have agreed to a Statement of Facts and she has provided an affidavit reflecting on her conduct, which she now regrets.
  4. [33]
    The respondent has developed insight into her conduct, and has a low risk of recidivism. She has accepted that she made a “series of very poor choices”, and identified in her affidavit the various “slippery slope” moments where the lines between her professional and personal life began to blur. She has completed further education and further deposes that the events associated with these proceedings have “served as a great teacher”.[12]
  5. [34]
    The respondent has continued to practise unrestricted as a medical practitioner for the period of approximately three years since her conduct came to light. She still holds onto aspirations of completing her fellowship training in psychiatry.
  6. [35]
    In order to appropriately protect the public interest and maintain public confidence in the profession, both parties submit that the respondent should be reprimanded.
  7. [36]
    A reprimand is not a trivial penalty and has the potential for serious adverse implications to a professional person.[13] It is a public denunciation of the respondent’s conduct and a matter of public record. It will be recorded on the Register until such time as the Board considers it appropriate to remove it.[14]
  8. [37]
    Pursuant to s 107(3)(a) of the HO Act, the respondent is reprimanded.
  9. [38]
    The parties also submit that this conduct is appropriately serious as to necessitate the imposition of a fine of $15,000.
  10. [39]
    Both parties refer to Health Ombudsman v Upadhyay,[15] where a boundary violation by a medical practitioner attracted a reprimand and a fine of $10,000. The applicant submits that the boundary violation the subject of Allegation 1 in the present case is more serious, having occurred over a period of over twenty months, and in the context of the special treating relationship of psychotherapy and with such misconduct being aggravated by the lack of frankness constituting Allegation 2. The respondent does not submit to the contrary.
  11. [40]
    Determination of sanction remains a discretionary matter for the Tribunal notwithstanding any agreement between the parties. However, the Tribunal ought not readily depart from a proposed sanction agreed between the parties unless it falls outside a permissible range of sanction.[16]
  12. [41]
    The fine is substantial, half the maximum permissible fine that could be imposed, but it does not fall outside the permissible range of sanction for the conduct. Therefore, it is appropriate for the Tribunal to accept the parties’ proposed sanction by way of fine.
  13. [42]
    Pursuant to section 107(3)(c) of the HO Act, the respondent is required to pay a fine of $15,000 to the applicant within a period of six months.

Costs

  1. [43]
    The orders of the Tribunal with respect to costs will reflect the default position pursuant to section 100 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), as contended for by both parties.

Footnotes

[1]The name of the respondent is anonymised in accordance with a non-publication order made by the Tribunal pursuant to section 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) on 4 September 2020, the applicant filing material supporting the continuance of such order and the respondent not opposing its continuance.

[2]Affidavit of BBH (sworn 8 January 2021), [13]-[15].

[3]Affidavit of BBH (sworn 8 January 2021), [20]- [22].

[4]Affidavit of BBH (sworn 8 January 2021), [22].

[5]Affidavit of BBH (sworn 8 January 2021), [26].

[6]Affidavit of BBH (sworn 8 January 2021), [24]-[26].

[7]Affidavit of BBH (sworn 8 January 2021), [32].

[8]Affidavit of BBH (sworn 8 January 2021), [40] and [46].

[9]Affidavit of BBH (sworn 8 January 2021), [58]-[59].

[10]See the following provisions of the Code of Conduct: 1.4; 3.2.6; 3.14; 8.1; 8.2.1; 8.2.2; and 8.4.

[11](2001) 79 SASR 545 at 553-555.

[12]Affidavit of BBH (sworn 8 January 2021), [67]-[73].

[13] Psychology Board of Australia v Cameron [2015] QCAT 227, [25].

[14]Health Practitioner Regulation National Law (Queensland), s 226(3).

[15][2020] QCAT 163.

[16] Legal Services Commissioner v McLeod [2020] QCAT 371, [31]-[32] and Medical Board of Australia v Martin [2013] QCAT 376, [91]-[93].

Close

Editorial Notes

  • Published Case Name:

    Health Ombudsman v BBH

  • Shortened Case Name:

    Health Ombudsman v BBH

  • MNC:

    [2021] QCAT 197

  • Court:

    QCAT

  • Judge(s):

    Allen QC

  • Date:

    07 Jun 2021

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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