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Health Ombudsman v Rodney[2021] QCAT 277

Health Ombudsman v Rodney[2021] QCAT 277

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Health Ombudsman v Rodney [2021] QCAT 277

PARTIES:

Health Ombudsman

(applicant)

v

James Maurice John Rodney

(respondent)

APPLICATION NO/S:

OCR048-19

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

19 August 2021 (ex tempore)

HEARING DATE:

19 August 2021

HEARD AT:

Brisbane

DECISION OF:

Judge Allen QC, Deputy President

Assisted by:

Mr Ross Ashcroft

Dr Eleanor Chew

Dr Bavahuna Manoharan

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 s 107(3)(b) of the Health Ombudsman Act 2013 (Qld), the following conditions are to be imposed on the respondent’s registration, effective from the date of the Tribunal’s order:

Mentoring

  1. The Practitioner must be mentored by another registered health practitioner in relation to professional boundaries, more particularly those identified in the disciplinary proceedings: Director of Proceedings on behalf of the Health Ombudsman v James Maurice John Rodney (OCR048-19).

For the purposes of this condition, 'mentoring' is defined as a relationship in which a skilled registered practitioner (the mentor) helps to guide the professional development of another practitioner.

  1. The mentoring must comprise a minimum of 12 sessions with each session being of 1 hour in duration occurring over a 12 month period.
  2. Within 7 days of the notice of the imposition of these conditions, the Practitioner must, on the approved form (HPN16), nominate a person(s) to be approved by the Medical Board of Australia (Board) to act as mentor. The Practitioner must ensure that the nomination is accompanied by acknowledgement, on the approved form (HPNA16), from the nominated person.
  1. Within 7 days, the Practitioner must provide to the Australian Health Practitioners Regulation Agency (AHPRA), on the approved form (HP16), acknowledgement that AHPRA may seek reports from the approved mentor on any or all of the following occasions:
    1. (a)
      every 3 months;
    2. (b)
      at the conclusion of the mentoring relationship in order to confirm the outcomes of the mentoring;
    3. (c)
      whenever the mentor has a concern or becomes aware of a concern regarding the Practitioner’s conduct or professional performance; and
    4. (d)
      when otherwise requested by AHPRA or the Board.
  1. In the event an approved mentor is no longer willing or able to provide the mentoring required the Practitioner is to provide a new nomination in the same terms as previous nominations. Such nomination must be made by the Practitioner within 14 days of becoming aware of the termination of the mentoring relationship.
  2. Within 21 days of the conclusion of the mentoring the Practitioner must provide a report demonstrating, to the satisfaction of the Board, that the Practitioner has reflected on the issues that gave rise to the condition requiring they attend for mentoring and outlining how the Practitioner has incorporated the lessons learnt in the mentoring into their practice and any teaching or education roles.
  3. All costs associated with compliance with these conditions above are at the expense of the Practitioner.
  1. Pursuant to section 109(2) of the Health Ombudsman Act 2013 (Qld), the Tribunal decides that the National Law, part 7, division 11, subdivision 2, applies to the conditions.
  1. Pursuant to section 109(3) of the Health Ombudsman Act 2013 (Qld), the Tribunal decides that the review period for the conditions, for the purpose of applying that subdivision, is 12 months.
  2. Pursuant to section 107(3)(c) of the Health Ombudsman Act 2013 (Qld), the respondent is required to pay a fine in the sum of $30,000 to the Health Ombudsmen within 28 days.
  3. Pursuant to section 102 of Queensland Civil and Administrative Tribunal Act 2009 (Qld), the respondent is to pay the applicant’s costs of and incidental to the proceedings as agreed in the sum of $75,000 within 28 days.
  4. The interim non-publication order made on 16 May 2019 is discharged.

CATCHWORDS:

PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – MEDICAL PRACTITIONERS – DISCIPLINARY PROCEEDINGS – PROFESSIONAL MISCONDUCT AND UNPROFESSIONAL CONDUCT – where the respondent was a medical practitioner and psychiatrist – where the respondent offered practical assistance to an elderly patient and her sister – where the respondent became the beneficiary of their wills and held power of attorney for them – where the respondent continued to prescribe to the patient – where the respondent did not financially benefit from these dealings – 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), s 103, s 104, s 107, s 109

Health Practitioner Regulation National Law (Queensland), s 5

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 66, s 100, s 102

Briginshaw v Briginshaw (1938) 60 CLR 336

Re: Dr Anthony Diamantaras [2007] MPBV 10

APPEARANCES &

REPRESENTATION:

 

Applicant:

A Forbes of TurksLegal

Respondent:

K Mellifont QC instructed by Avant Law

REASONS FOR DECISION

Introduction

  1. [1]
    This is a referral of a health service complaint against James Morris John Rodney (the 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 Health Ombudsman (applicant). The applicant seeks findings that the respondent has engaged in professional misconduct and consequent orders by way of sanction. The parties are agreed as to the facts of the conduct the subject of the referral, its appropriate characterisation as professional misconduct, and appropriate orders as to sanction. Nevertheless, it remains for the Tribunal to satisfy itself as to those matters, according to the standard of proof enunciated by the High Court in Briginshaw v Briginshaw.[1]
  2. [2]
    The respondent is 72 years of age. He first obtained general registration as medical practitioner in December 1973 and subsequently obtained specialist registration as a psychiatrist in January 1979. He has thus practised as a medical practitioner for the last 48 years with the last 42 years as a psychiatrist. He has had a distinguished career as a psychiatrist and is held in high esteem by his colleagues. He has no prior disciplinary history.

Conduct

  1. [3]
    The respondent treated Ms Patricia Tompkin (Patricia) from the early 1990s. Her diagnosis included borderline personality disorder, depression, and anxiety. The respondent deposes that he found his treatment and care of Patricia to be very challenging. That she was a challenging patient is confirmed by the opinions of other subsequent treating medical practitioners and other material before the Tribunal.
  2. [4]
    In late 2014, Patricia attended at the respondent’s consultation rooms and her primary complaints related to her physical infirmity. As the year progressed, the respondent became increasingly concerned about Patricia’s ability to physically attend his clinical rooms for treatment. There were occasions when the respondent would walk Patricia to her car from his rooms or ask his staff to do so to ensure that she did not fall. As a result of Patricia’s declining physical state, the respondent made arrangements to attend upon Patricia at her home. The respondent rarely saw patients in their homes, there being maybe five patients in his entire career who he conducted home visits for. However, in the case of Patricia, he felt a moral obligation to continue to assist her considering the length of his treating relationship with Patricia, as well as her obvious need for assistance and lack of external support. Patricia was born in 1931 and was, therefore, aged in her mid-80s at this time. She lived with her sister, then in her early 90s, and had no other family support.
  3. [5]
    The respondent’s first home visit with Patricia took place on 16 January 2015. In addition to formal consultations by way of home visits, the respondent visited Patricia and her sister Audrey at their New Farm flat on a number of other occasions in early 2015 to assist them with practical matters. From about February 2015, it became increasingly apparent to the respondent that Patricia’s primary difficulties were practical in nature and, during March and April 2015, the respondent’s visits to Patricia’s and Audrey’s home became more focused on practical assistance, such as assistance with cleaning, rather than any therapeutic purpose. It was apparent to the respondent, from Patricia’s physical presentation and the state of her home, that she required additional practical assistance. The respondent felt driven to assist Patricia in such circumstances.
  4. [6]
    In about March 2015, the respondent was able to obtain a temporary extension of a lease to enable Patricia and her sister to remain in their home while seeking alternative accommodation. The respondent attempted to assist Patricia to find suitable alternative accommodation. This process was difficult because Patricia was insistent that she and Audrey find accommodation in which they could continue to live together. Patricia was resistant to the idea of accommodation at a nursing home.
  5. [7]
    On 13 March 2015, during a home visit with Patricia, Patricia told the respondent that she wanted him to be a beneficiary of her will and wanted him to make those arrangements. On subsequent occasions she repeated her request that the respondent arrange for her will and a will of her sister, Audrey, to be prepared, including the respondent as beneficiary. The respondent eventually agreed to such request on what he considered to be an interim basis and bought two will packs from a newsagent which he completed in the way requested by Patricia. He considered the will as providing for an interim arrangement because his understanding was that both Patricia and Audrey ultimately wanted their estates to benefit charities. The will of Patricia named the respondent as executor, Audrey as beneficiary, and on the passing of Audrey, the estate passed to the respondent or his estate as beneficiary. The will of Audrey named Patricia as executor and beneficiary, and on the passing of Patricia, the whole of her estate was given to the respondent or his estate as beneficiary. At this stage, the respondent knew little about Patricia’s financial arrangements save for the fact that she received a pension. He also was aware that the sisters had financial savings including cash deposits and their personal possessions, which they considered to be of some value.
  6. [8]
    At around the same time, Patricia spoke to the respondent about him becoming her attorney. The respondent suggested that she consider the Public Trustee but Patricia was adamant that she would not use the Public Trustee. The respondent eventually agreed to prepare Powers of Attorney for Patricia and Audrey. By the end of April 2015, Patricia and Audrey had signed Enduring Powers of Attorney documents by which Patricia appointed Audrey as her attorney, and Audrey appointed the respondent as her attorney.
  7. [9]
    It was the respondent’s intention, by April 2015, to transition from a role of treating practitioner to the sole role of carer of Patricia. He continued to provide both Patricia and her sister with practical support, including assistance with phone accounts and purchases.
  8. [10]
    In about early to mid-May 2015, Patricia and Audrey were required to vacate their home at New Farm because of the end of their lease. The respondent assisted Patricia and Audrey in making arrangements to move from their home to an aged care facility at Mango Hill. In the course of assisting Patricia and Audrey to make arrangements to move, the respondent came into possession of some personal items owned by them, which they believed to be valuable.
  9. [11]
    The respondent also became involved in assisting Patricia and Audrey with their bank accounts and finances and became signatories on their bank accounts. The respondent also agreed to keep an amount of cash in his safe, as requested by Patricia. The respondent used some of that cash to purchase things needed by Patricia and Audrey. He did not keep any of the money for himself or spend it for his own benefit. The balance of the cash not spent was subsequently returned to solicitors engaged by Patricia.
  10. [12]
    Despite his intention that his relationship with Patricia had transitioned from a therapeutic relationship to a solely carer relationship, the respondent subsequently did provide some treatment to Patricia by way of prescription of medication. On 7 July 2015, the respondent prescribed oxycodone to Patricia. On 15 September 2015, the respondent prescribed alprazolam to Patricia. On those occasions, the respondent was visiting Patricia at the aged care home and found her in a severe state of agitation and pain, including having panic attacks. At the time of issuing the prescriptions, the respondent considered Patricia to be in state of psychiatric crisis and felt a moral responsibility to assist her. The respondent deposes that he ensured he told Patricia’s treating general practitioner of those occasions. The material before the Tribunal includes a letter from the respondent to Patricia’s general practitioner advising him of the prescription of alprazolam on 15 September 2015.
  11. [13]
    The relationship between the respondent and Patricia deteriorated. She became hostile to the respondent and engaged solicitors to seek return of cash and other items in the possession of the respondent and ultimately draw new wills for her and her sister. The balance of the cash received by the respondent and other items in his possession were returned to Patricia via her solicitors.
  12. [14]
    The respondent deposes that he wholly accepts that he ought never have permitted himself to become a beneficiary to the estate of Patricia or Audrey, notwithstanding that he was of the belief that it was only ever intended to be temporary. He deposes that at no stage did he want or expect to be remunerated or financially rewarded for the assistance he was giving Patricia and Audrey. He deposes that he did not financially gain from his involvement with them. Such evidence is not challenged by the applicant.
  13. [15]
    The respondent accepts that he breached the applicable code of practice and code of ethics by:
    1. (a)
      failing to maintain professional boundaries, including in circumstances where he provided treatment to Patricia and managed her care, when his role had changed to carer,
    2. (b)
      failing to avoid a conflict of interest by preparing wills which nominated him as a beneficiary, and becoming an attorney for Audrey, including for financial matters, and
    3. (c)
      failing to appropriately end his treating relationship with Patricia.
  14. [16]
    The statements of the panel appointed by the Medical Practitioners Board of Victoria in the matter of Re: Dr Anthony Diamantaras[2] are apt to the circumstances of this matter:

Boundaries in the doctor-patient relationship derive naturally from the relationship’s fiduciary nature. In general, professional boundaries can be defined as the set of rules that establishes the professional relationship as separate from other relationships and protects the patient from harm. A patient who seeks medical or psychiatric treatment is often in a uniquely dependent, anxious, vulnerable and exploitable state. In seeking help, patients assume positions of relative powerlessness in which they expose their weaknesses, compromise their dignity and reveal intimacies of body or mind, or both.

Breaching of professional boundaries therefore means going outside or beyond the limits of the professional relationship, a relationship which is traditionally based on trust, respect and appropriate use of power. These breaches may occur when establishing, or attempting to establish, a social, economic or personal relationship with the patient. In cases of an economic or personal relationship between a doctor and a patient, the doctor runs a considerable risk of being found to have engaged in unprofessional conduct if it can be shown that there was any exploitation of power or any knowledge or influence gained by the doctor within the professional relationship.

As the nature of the doctor patient relationship represents one with uneven distribution of power, knowledge and vulnerability, the possibility of such exploitation occurring is very real. Doctors are expected to recognize this and manage the therapeutic relationship with appropriate professional skill and with the patient’s interests foremost. In every case, it is the doctor, not the patient, who has the power in the relationship and that power must never be used for personal advantage. It is also the doctor who is responsible for the establishment, recognition and maintenance of professional boundaries and they remain accountable for their professional conduct in this respect.

Further to the above, it falls upon the medical practitioner to ensure that he or she derives no illegitimate personal advantage from a relationship with a patient. A doctor is entitled to a proper fee for medical services rendered. Personal advantage beyond that will attract the very closest scrutiny. As a matter of general principle, it is unacceptable conduct for a medical practitioner to enter into a loan or other financial arrangements with a patient from which he or she may derive personal advantage. Whether such arrangement are entered into during or outside a medical consultation is immaterial.

  1. [17]
    Notwithstanding the respondent had no intention to, and did not in fact, financially benefit from his dealings with Patricia and Audrey, the gravamen of the breach of professional boundaries is the potential for that to happen. It was the obligation of the respondent to ensure that professional boundaries were maintained, and that he was not placed in any potential conflict of interest in his dealings with his former patient and her sister.
  2. [18]
    It was the respondent’s obligation to ensure that his treating relationship with Patricia was terminated prior to him becoming involved in her personal and financial affairs, and he failed to do so. The respondent, quite properly, concedes that his conduct amounts to professional misconduct, as defined in section 5 of the Health Practitioner Regulation National Law (Queensland) (National Law). The Tribunal readily agrees.
  3. [19]
    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

  1. [20]
    The main consideration for the Tribunal when determining any orders for sanction is the health and safety of the public.[3] The purpose of sanction is 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 medical profession, and the need to deter the respondent, and other medical professionals, from engaging in like conduct.
  2. [21]
    As noted at the outset of these reasons, the respondent has had a distinguished and previously unblemished career as a medical practitioner and psychiatrist. He has made significant contributions to the profession, holding significant positions in the Royal Australian and New Zealand College of Psychiatrists and other professional bodies. He continues to be active as a clinical senior lecturer at the University of Queensland. In addition to his private psychiatric practice, he is the director of the mood disorder unit at the New Farm Clinic, chairman of the Medical Advisory Committee of the New Farm Clinic, and site coordinator of the year 3 MBBS program at that clinic. In 2007, the respondent received a citation for meritorious service from the Royal Australian and New Zealand College of Psychiatrists for his many years of loyal service to the college in both public and private settings. The citation noted that the respondent was held in the highest regard in the Queensland branch of the college, and by the general medical community. The respondent is held in high esteem by his peers, as confirmed by character references more recently obtained from very experienced and respected colleagues.
  3. [22]
    The Tribunal accepts that the conduct the subject of the referral was out of character and is explicable only because of the sense of moral obligation the respondent felt to assist the patient who he had known for nearly 25 years. The respondent allowed his concern for Patricia’s personal circumstances to override his professional obligations to maintain appropriate professional boundaries and avoid conflicts of interest.
  4. [23]
    The respondent has subsequently undertaken education as to maintenance of professional boundaries including managing boundary issues for patients with mental health issues and treating people with whom the practitioner has a close personal relationship.
  5. [24]
    The respondent’s admission of professional misconduct and the frank admissions by the respondent in the statement of agreed facts and his affidavit are such that the Tribunal is satisfied that the respondent is truly remorseful for his conduct and has insight as to the extent of his failure to maintain appropriate professional standards.
  6. [25]
    The Tribunal accepts the evidence of the respondent that he has not previously engaged in such conduct and will not do so in the future.
  7. [26]
    The Tribunal accepts that the respondent’s conduct should be characterised as demonstrating serious errors of judgment and permitting himself to be put in a position of conflict of interest because of his genuine concern for Patricia and his desire to help her and her sister. The Tribunal accepts that there was no intent for the respondent to profit from his conduct and that his conduct should not be considered as being predatory. It is in that context that the Tribunal comes to consider the joint submissions of the parties as to appropriate orders for sanction.
  8. [27]
    The parties jointly submit that appropriate orders for sanction are:
    1. (a)
      that the respondent be reprimanded;
    2. (b)
      that the respondent pay a fine of $30,000; and
    3. (c)
      that the respondent’s registration be subject to conditions requiring mentoring.
  9. [28]
    The Tribunal should not lightly depart from joint submissions submitted by the parties unless the proposal is clearly inappropriate.[4] The Tribunal does not consider the orders for sanction proposed by the parties as being inappropriate and finds that the proposed orders are appropriate to meet the protective purposes of sanction.
  10. [29]
    A reprimand is not a trivial penalty and has the potential for serious adverse implications to a professional person. It is a matter of public record affecting the reputation of a practitioner and remains on the public register until such time as the Board determines that it is appropriate that the reprimand be no longer so recorded.[5] Such a reprimand is accompanied by the publication of the reasons of the Tribunal for the reprimand. The finding of professional misconduct and the public reprimand amount to a sanction of some significance for the respondent. The amount of the proposed fine is the maximum amount permitted by the provisions of the HO Act. The conditions providing for mentoring will be a burden on the respondent’s registration and a matter of public record for such time as the conditions remain. The burden of complying with such conditions will be a continued reminder for the respondent of the consequences of his conduct.
  11. [30]
    In all the circumstances, the Tribunal is satisfied that the orders for sanction proposed by the parties are appropriate to meet the protective purposes of sanction. The only substantial amendment to the terms of the proposed conditions will be to expand the terms of proposed condition 6 in light of the respondent’s continued teaching and educational roles.
  12. [31]
    Pursuant to section 107(3)(a) of the HO Act, the Tribunal reprimands the respondent.
  13. [32]
    Pursuant to section 107(3)(b) of the HO Act, the Tribunal imposes the following conditions on the respondent’s registration:

Mentoring

  1. The Practitioner must be mentored by another registered health practitioner in relation to professional boundaries, more particularly those identified in the disciplinary proceedings, director of proceedings on behalf of the Health Ombudsman, the James Morris John Rodney (OCR, 048-19).

For the purposes of this condition, “mentoring,” is defined as a relationship in which a skilled, registered practitioner (the mentor) helps to guide the professional development of another practitioner.

  1. The mentoring must comprise a minimum of 12 sessions with each session being one hour in duration occurring over a 12-month period.
  2. Within seven days of this order, the Practitioner must, on the approved form (HPN16), nominate a person (persons) to be approved by the medical Board of Australia (Board) to act as mentor. The Practitioner must ensure that the nomination is accompanied by acknowledgement on the approved form (HPNA16) from the nominated person.
  3. Within seven days of this order, the Practitioner must provide to the Australian Health Practitioner Regulation Agency (AHPRA) on the approved form (HP16) acknowledgement that AHPRA may seek report from the approved mentor on any or all of the following occasions:
    1. every three months;
    2. at the conclusion of the mentoring relationship to confirm the outcomes of the mentoring;
    3. whenever the mentor has a concern or becomes aware of a concern regarding the Practitioner’s conduct or professional performance; and
    4. when otherwise requested by AHPRA or the Board.
  4. In the event an approved mentor is no longer willing or able to provide the mentoring required, the Practitioner is to provide a new nomination in the same terms as previous nominations. Such nomination must be made by the Practitioner within 14 days of becoming aware of the termination of the mentoring relationship.
  5. Within 21 days of the conclusion of the mentoring, the Practitioner must provide a report demonstrating, to the satisfaction of the Board, that the Practitioner has reflected on the issues that gave rise to the condition requiring they attend the mentoring and outline how the Practitioner has incorporated the lessons learnt in the mentoring into their practice and any teaching or educational roles.
  6. All costs associated with compliance with the conditions are at the expense of the respondent.
  1. [33]
    Pursuant to section 109(2) of the HO Act, the Tribunal decides that the National Law, part 7, division 11, subdivision (2) applies to the conditions.
  2. [34]
    Pursuant to section 109(3) of the HO Act, the Tribunal decides that the review period for the conditions, for the purpose of applying that subdivision, is 12 months.
  3. [35]
    Pursuant to section 107(3)(c) of the HO Act, the respondent is required to pay a fine of $30,000 to the Health Ombudsman within 28 days.

Costs

  1. [36]
    The parties have also agreed that the Tribunal should order that the respondent pay the applicant’s costs of the proceeding in the agreed sum of $75,000. The applicant points to circumstances, including some aspects of the respondent’s conduct of the proceedings, as justifying a departure from the usual position, pursuant to section 100 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act), that each party to a proceeding must bear the party’s own costs for the proceeding.
  2. [37]
    In light of those matters relied upon by the applicant, but particularly in light of the respondent’s agreement to the proposed costs order, the Tribunal is satisfied that the interests of justice require such an order pursuant to section 102 of the QCAT Act.
  3. [38]
    Pursuant to section 102 of the QCAT Act, the respondent is to pay the applicant’s costs of and incidental to the proceeding as agreed in the sum of $75,000 within 28 days.

Non-publication order

  1. [39]
    An interim non-publication order made by the Tribunal on 16 May 2019 prevented publication of any material that might identify Patricia and Audrey Tompkins. In circumstances where both have now been deceased for some years, and there are no other persons such as descendants whose interests might be impacted by identification of Patricia or Audrey, there appears to be no basis, pursuant to section 66 of the QCAT Act, for such an order to continue. Neither party submitted that there was any basis pursuant to section 66 of the QCAT Act for the non-publication order to continue to have effect. In those circumstances, the interim non-publication order made on 16 May 2019 is discharged.

Footnotes

[1](1938) 60 CLR 336.

[2][2007] MPBV 10 at [24]-[27].

[3]HO Act, section 4.

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

[5]See Health Ombudsman v Gillespie [2021] QCAT 54.

Close

Editorial Notes

  • Published Case Name:

    Health Ombudsman v Rodney

  • Shortened Case Name:

    Health Ombudsman v Rodney

  • MNC:

    [2021] QCAT 277

  • Court:

    QCAT

  • Judge(s):

    Allen QC, Mr Ross Ashcroft, Dr Eleanor Chew, Dr Bavahuna Manoharan

  • Date:

    19 Aug 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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