Health Ombudsman v Pennington
[2021] QCAT 334
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- Unreported Judgment
- Health Ombudsman v Pennington[2021] QCAT 334
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Health Ombudsman v Pennington[2021] QCAT 334
Health Ombudsman v Pennington[2021] QCAT 334
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Health Ombudsman v Pennington [2021] QCAT 334 |
PARTIES: | Health ombudsman |
(applicant) | |
v | |
lidia rithia pennington | |
(respondent) | |
APPLICATION NO/S: | OCR120-20 |
MATTER TYPE: | Occupational regulation matters |
DELIVERED ON: | 12 October 2021 (ex tempore) |
HEARING DATE: | 12 October 2021 |
HEARD AT: | Brisbane |
DECISION OF: | Judge Allen QC, Deputy President Assisted by: Ms Karen Butler Mr Peter Davies CBE Professor Justin Kenardy |
ORDERS: |
|
CATCHWORDS: | PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – PSYCHOLOGISTS – where the respondent was a registered psychologist – where the respondent engaged in a personal, business and sexual relationship with a patient to whom she provided psychological care while incarcerated – where the non-therapeutic relationship commenced after the patient’s release from prison – whether the respondent attempted to deceive and/or mislead Queensland Corrective Services – whether the respondent failed to ensure ongoing psychological care and treatment – whether these matters should be characterised as professional misconduct or unprofessional conduct – delay in investigation and prosecution of proceedings by the applicant – what sanction should be imposed Health Ombudsman Act 2013 (Qld), s 4, s 103, s 104, s 107 Health Practitioner Regulation National Law (Queensland), s 5 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 93 Briginshaw v Briginshaw [1938] 60 CLR 336 Psychology Board of Australia v Garcia [2015] VCAT 128 |
APPEARANCES & REPRESENTATION: | |
Applicant: | C Lloyd of the Office of the Health Ombudsman |
Respondent: | No appearance |
REASONS FOR DECISION
Introduction
- [1]This is the referral of a health service complaint against Lidia Rithia Pennington (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/or unprofessional conduct and consequent orders by way of sanction.
- [2]The respondent is a 65-year-old former registered psychologist. The respondent was first registered as a psychologist in February 1993. The respondent’s registration lapsed on 30 November 2012 upon the respondent not choosing to renew her registration. She has not practised as a psychologist since that time.
Delay
- [3]The conduct the subject of the referral includes conduct occurring in 2012 whilst the respondent was still registered as a psychologist. It is immediately apparent that the proceedings concern conduct that occurred some nine years ago and that the hearing occurs almost nine years following the cessation of the respondent’s registration.
- [4]Some of that delay is explained by the fact that no complaint was made regarding the respondent’s conduct until 24 February 2017. At that time, the patient the subject of the complaint did not wish to make a complaint himself or provide a statement to the Office of the Health Ombudsman (OHO). In the absence of such a statement, it was necessary for the OHO to obtain information from other sources, including the patient’s family members, documentation including rental and business documents, and records of the Queensland Police Service.
- [5]Further delay occurred in the consideration of the matter by the Director of Proceedings before a statement of the patient was ultimately obtained in February 2020. The matter was referred to the Tribunal on 30 April 2020.
- [6]The applicant acknowledges and expresses regret for the delays that occurred during the course of the investigation and consideration of the matter as a result of backlogs of matters in the OHO and before the Director of Proceedings that have been the subject of comment in previous decisions of this Tribunal. It is encouraging that the efforts made by the OHO to reduce the time taken to investigate and refer health service complaints to the Tribunal do seem to have had positive results in more recent times.
Respondent’s participation in in proceedings
- [7]The respondent did have some contact with the OHO during the course of its investigation in 2017. Despite being served with the referral, the respondent has chosen not to engage in proceedings before the Tribunal. Despite being served with a notice of hearing, the respondent has not chosen to appear, either in person or remotely, to place any material before the Tribunal or make any submissions on her own behalf. The Tribunal has therefore proceeded to hear and determine the matter in the respondent’s absence pursuant to section 93 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).
The referral
- [8]The referral particularises three “Allegations”.
- [9]Allegation 1 alleges a “boundary violation” occurring between 2 April 2012 and 30 November 2012 (being the date upon which the respondent’s registration lapsed) by the respondent engaging in a close personal, business and sexual relationship with the patient that transgressed the boundaries of a typical therapeutic relationship between a registered psychologist and a patient.
- [10]Allegation 2 alleges that the respondent attempted to deceive and/or mislead Queensland Corrective Services (QCS), and in doing so, failed to act with honesty, integrity and propriety as required by the Australian Psychological Society Code of Ethics.
- [11]Allegation 3 alleges that the respondent, while holding registration as a registered psychologist, failed to provide and/or failed to ensure by transferring his care to another psychologist, that the patient receive ongoing psychological care and treatment.
- [12]Allegations 1 and 2 are further alleged to constitute “professional misconduct” within the meaning of that term as defined by section 5 of the Health Practitioner Regulation National Law (National Law).
- [13]Allegation 3 is alleged to constitute professional misconduct or, alternatively, unprofessional conduct within the meaning of section 5 of the National Law.
- [14]The applicant bears the burden of proving the allegations and their ultimate categorisation as professional misconduct or unprofessional conduct according to the standard of proof enunciated by the High Court in Briginshaw v Briginshaw.[1]
Conduct
- [15]The conduct the subject of the referral concerns the relationship between the respondent and a patient who was 27 years old at the time of his psychological treatment by the respondent.
- [16]The patient was, at the time of the therapeutic relationship, a prisoner held at the Arthur Gorrie Correctional Centre (AGCC). The patient was held at AGCC from January 2011 to April 2012. During that time, he received psychological care from the respondent who was engaged by QCS to provide services as a consultant psychologist.
- [17]QCS records indicate that the respondent may have been involved in the care of the patient from August 2011 through to the day of his discharge from custody on 4 April 2012. It appears that the prisoner was then discharged from custody having served a sentence and was released on bail for other charges upon which he was had been held on remand, such bail having been granted on 21 March 2012.
- [18]A letter from a Deputy Commissioner of QCS obtained by the OHO in the course of its investigation confirmed that a review of QCS documentation indicated that:
A condition of [the patient’s] bail required him to report and receive counselling from Psychologist Lidia Pennington as required, or as Lidia Pennington considers appropriate.
- [19]That is the most cogent evidence available to the Tribunal as to the conditions attaching to the release on bail of the patient relating to the respondent. The investigation by the OHO was not only protracted but, unfortunately, incomplete. It seems that no attempt was made to search the relevant court file to obtain copies of any documentation relating to the patient’s release on bail, and, in particular, any documentation that may have led to such a condition regarding psychological treatment by the respondent, including any documentation that the respondent may have herself supplied in support of the application for bail. That, it will be seen, presents difficulties for the applicant in proof of both Allegations 2 and 3.
- [20]The other evidence before the Tribunal which assists in considering the respondent’s involvement in the patient obtaining bail with such a special condition is as follows.
- [21]The initial complaint to the OHO was made by the patient’s then treating psychologist on 23 February 2017 after the patient revealed to that practitioner, during psychological sessions in the high secure inpatient services of The Park Centre for Mental Health, that he had previously entered into a sexual and de facto relationship with a psychologist who had treated him whilst he was in custody.
- [22]The practitioner reported an account given by the patient as follows:
[The patient] reported that he was previously accommodated as a serving prisoner in the Maximum Secure Unit of the Arthur Gorrie Correctional Centre. During his sentence, in approximately 2012, he was provided with psychological/counselling services by Ms Lidia Pennington. [The patient] reported that Ms Pennington was a private contractor who attended the centre to treat him. He further reported that Ms Pennington signed bail paperwork to assist him to obtain bail in the community and was listed on the paperwork as his treating professional. [The patient] said that within months after his discharge from custody he and Ms Pennington made telephone contact. He said they agreed to meet up and they began a sexual relationship. He also reported that they moved in together in [redacted] and lived together there for approximately 12 to 18 months before the relationship broke down.
- [23]In a statement given to the OHO on 24 January 2020, the patient stated:
Lidia and I built up a friendship when I was in Arthur Gorrie jail, as we talked a lot. She also told me that she was leaving the centre and that she could be my “psych” reference for getting bail for charges where I was accused of breaking [redacted] arm…She arranged the bail and it worked, it was a condition for me to do my “psych” work with her while I was on bail, it was just a gimmick to get me bail. The paperwork was signed at Arthur Gorrie Jail before she left.
I did not receive any therapeutic counselling or treatment from Lidia after I was released from Arthur Gorrie Jail and she did not refer me to anyone other counsellor for ongoing treatment.
- [24]In an email dated 19 July 2017 to the OHO, the respondent stated (footnote added):
It is correct that [the patient] was one of my clients during my time at Arthur Gorrie Correctional Centre employed as a contract psychologist. The treatment undertaken during that time was professional and appropriate. All work was carried out under camera surveillance in a non-contact interview room.[2] All files are the property of Arthur Gorrie and retained by them.
In April 2012, I was employed by Serco in a management capacity and resigned my contract with Arthur Gorrie Correctional Centre and private practice, as the new job required significant interstate travel. I have not practiced as a therapist or renewed my registration since that time.
When [the patient] was released from Arthur Gorrie Correctional Centre, I did meet with him to see how he was reintegrating back into the community but I was not acting as his therapist and suggested he find a therapist he could work with. After he returned to Townsville in 2013, he did keep in contact with me but not as his therapist, as I was not registered. I suggested he find a therapist if he needed help to stay on track.
- [25]In a letter dated 25 October 2017 to the OHO, the respondent stated:
There was no therapeutic relationship commenced with [the patient] after he was released from Arthur Gorrie correctional Centre as I recall, he needed to find a suitable Male therapist to assist him with his issues in relation to women. However, I did lend him some self help books from my personal library.
- [26]The respondent then went on to detail a business relationship which she developed with the patient after his release from prison in 2012 and some continuing contact with the patient until a serious falling out between her and the patient in October 2014. The respondent denied any romantic relationship with the patient.
- [27]In addition to the admissions by the respondent as to the business relationship with the patient following his release from prison, there is evidence before the Tribunal which establishes further the fact of such business relationship, and also establishes periods of cohabitation of the respondent and the patient from at least as early as September 2012. Records obtained from the Queensland Police Service regarding an incident involving the respondent and the patient on 10 October 2014 suggest that they were also cohabiting at that time.
- [28]In addition to the detailed evidence in the statement of the patient dated 24 January 2020 as to the extent of the personal and sexual relationship between him and the respondent following his release from prison, further evidence obtained by way of statements from the patient’s mother and her partner at the relevant times confirms that the respondent and patient were in an intimate relationship in 2012, and for some time afterwards. Such evidence does tend to support the evidence of the patient, which is to the following effect.
- [29]The sexual relationship between the respondent and the patient commenced about two weeks after his release on bail in early April 2012. From that time, the respondent and the patient were in regular contact by way of phone conversations, overnight stays, and dating occasions. The respondent was financially generous to the patient. The respondent and the patient jointly commenced a franchise cleaning business. The respondent and the patient commenced cohabiting in jointly rented property from September 2012 until a breakdown of their relationship in 2013. They did have some contact following their separation, prior to the patient again being imprisoned in December 2013, and following the patient’s release from prison in October 2014. The heated disagreement that attracted police attention in October 2014 coincided with the termination of any relationship between them.
- [30]In his statement, the patient stated as follows:
Before I was released, I was taking medication for a number of medical conditions, and these medications included … two anti-psychotic medications (Sertraline and Valproate).
After I had been released from jail in 2012, Lidia said I was fairly independent of my medication and would not really need it, so I started to go off my medication during the year, though it was not any good for me as I ended up getting back on to drugs. I was not in a good place at the time. That was before we had broken up. My mother was not very happy about me going off my medication and wanted me to go back on it. My mum said that I need medication and I know that it evens me out.
I realised that I need to take these medications for my state of mind and it was wrong to go off them.
- [31]Records obtained from the Pharmaceutical Benefits Scheme confirm that no prescriptions for the anti-psychotic medications were presented by the patient following the last supply of sertraline on 27 July 2012 until 28 May 2013 when prescriptions were presented for valproate and sertraline. A statement obtained by the OHO from the patient’s mother tends to support the patient’s claim that the respondent encouraged him to cease his anti-psychotic medication during that time.
Allegation 1
- [32]The evidence before the Tribunal is such that the Tribunal can be satisfied to the requisite standard of proof of Allegation 1. It is clear that, soon after the cessation of the therapeutic relationship between the respondent and the patient, which had existed from August 2011 to early April 2012, and after the patient’s release on bail, the respondent and the patient commenced a sexual relationship, which continued, including substantial periods of cohabitation in, essentially, a de facto relationship, through to some time in 2013. During the same period of time, the respondent and the patient entered into a business relationship.
- [33]For a psychologist to enter into a sexual relationship with an ex-patient within some weeks of the cessation of their therapeutic relationship not only constitutes a breach of the terms of the code of conduct which explicitly prohibits such conduct, but obviously amounts to an egregious breach of the professional boundaries which a psychologist is required to maintain with patients and ex-patients. Such boundary violation was further aggravated by the additional boundary violation of the business relationship.
- [34]In Psychology Board of Australia v Garcia,[3] the nature of the power imbalance between a psychologist and their vulnerable patients and the fundamental importance that professional boundaries be maintained, was expressed as follows:
General deterrence is a more important factor in the case. Psychologists treat vulnerable people. There is an inherent imbalance in the professional relationship. If this is allowed to transfer into a personal relationship, the potential exists for damage to the client. This is why there are rules designed to prevent such occurrences. These rules are fundamental to the regulation of the psychologist/client relationship. The disposition must reflect the Tribunal’s support of this regulation and the requirement to illustrate that failing to meet the standard has disciplinary consequences.
- [35]The extent of the power imbalance between the respondentt and the patient during the course of their therapeutic relationship was very large. He was a vulnerable person because of his background and treatment needs. That power imbalance was further exacerbated by the respondent involving herself in his release on bail. In those circumstances, that power imbalance must have continued during the course of their relationship following his release from prison.
- [36]Despite the unfortunate absence of primary evidence of the documentation relating to the patient’s release on bail, the only reasonable inference which can be drawn is that the respondent knowingly supported the patient’s application for bail by purporting to make herself available as his treating psychologist upon his release from custody.
- [37]The evidence before the Tribunal, including the statements from the respondent herself, clearly establish that, however, the respondent had no intention whatsoever of providing any psychological services to the patient upon his release from prison. The Tribunal infers, to the requisite standard of proof, that the respondent willingly engaged in a ruse with the patient so as to support his release on bail.
- [38]Her knowledge of the patient’s non-compliance with such a condition upon his release from bail would have served to further perpetuate the power imbalance between the respondent and the patient.
- [39]Such circumstances exacerbate what would, in any event, be an egregious breach of the professional boundaries between a registered psychologist and an ex-patient.
- [40]The Tribunal has no hesitation in finding that Allegation 1 is proved and that the conduct the subject of Allegation 1 should properly be characterised as “professional misconduct” as defined in each limb of the definition of that term in section 5 of the National Law.
Allegation 2
- [41]Allegation 2 as it is framed is an allegation that the respondent attempted to deceive and/or mislead QCS and particularised as follows:
in the bail paperwork to support the patient’s release from prison on 2 April 2012, the Respondent falsely asserted that she would continue to provide therapeutic services to the patient when that was not true and in circumstances where she knew that continuing therapy with her was a condition of the patient’s release from prison.
- [42]The difficulties with proof of such an allegation are apparent from the earlier discussion of the evidence available to the Tribunal concerning the circumstances of the patient’s release on bail subject to a condition that he continue to receive psychological treatment from the respondent.
- [43]In the absence of the primary documentation referred to earlier, the evidence before the Tribunal is not such as to allow it to be satisfied to the requisite standard of proof that the respondent herself made any assertion “in the bail paperwork” that she would continue to provide therapeutic services to the patient.
- [44]Another fundamental difficulty with the allegation as framed is that it is framed as an attempt to deceive and/or mislead QCS. One would expect that any misleading assertion in bail paperwork would have been directed towards deception of the court which determined the grant of bail, rather than QCS, which had no such power.
- [45]Furthermore, the contents of the QCS offender case file notes, whilst making reference at times to the fact of the patient’s impending release upon bail, make no mention of any anticipated continuing role of the respondent in counselling of the patient following his release. Indeed, a note made by another psychologist on 3 April 2012, the date preceding the patient’s release on bail, notes as follows:
Prisoner reported that he will be released from gaol tomorrow (04.04.2012). He disclosed having short-term and long-term plans implemented upon his release. He admitted that he would consider visiting a psychologist to help address his personal issues. Prisoner reported that he had confronted his anger management issues with Psychologist Lidia Pennington. He predicted that anxiety and paranoia (eg, others staring at him) in public places could cause him concerns in the community. Prisoner was again encouraged to visit a psychologist if psychological symptoms heightened.
- [46]Such note is inconsistent with that psychologist, at least, having an understanding that the respondent was to be having a continuing therapeutic role following the patient’s release from prison.
- [47]The material before the Tribunal is not such that the Tribunal can be satisfied to the requisite standard of proof that the respondent made representations to QCS that she would continue treating the patient upon his release. The most that can be said is that the respondent, in taking whatever steps she did do to assist the patient’s release upon bail, may have consequently left anyone who was to read the terms of the bail order with such an impression. That, however, falls short of the allegation of deliberate misleading of QCS as alleged in Allegation 2. The Tribunal is not satisfied that Allegation 2 is made out.
Allegation 3
- [48]The deficiencies with the evidence before the Tribunal as already discussed also render consideration of Allegation 3 problematic. Allegation 3 is an allegation that the respondent failed to provide and/or failed to ensure by transferring his care to another psychologist, that the patient received ongoing psychological care and treatment, and is particularised further as follows:
- (a)The respondent has admitted that she did not provide further psychological counselling to the patient following his release from prison.
- (b)With knowledge that it was a condition of the patient’s bail that his psychological counselling should continue, the respondent failed to transfer the care of the patient to an alternative registered psychologist to ensure that his mental health condition was independently treated and monitored.
- (c)The patient reduced the intake of medications, including valproate and sertraline, during the period of his relationship with the respondent.
- (d)Records obtained from the Pharmaceutical Benefits Scheme confirm that no prescriptions for these medications were presented by the patient for the period following the last supply of sertraline on 27 July 2012 until 28 May 2013 when further prescriptions were presented for valproate and sertraline.
- (e)The failure to ensure the patient was referred to an alternative psychologist and/or the relationship itself more likely than not caused the deterioration or detriment to his mental health and impacted his reengagement with drugs and criminal activity.
- (f)The records of The Park Centre for Mental Health advise that, as at 2017, the patient was incarcerated in high security and being treated for a schizoaffective disorder and antisocial personality disorder.
- (a)
- [49]The fact of the matter is that the therapeutic relationship between the respondent and the patient occurred only in the context whereby she was contracted by QCS to provide consultant psychological services to prisoners. That therapeutic relationship ceased as at 4 April 2012 when the patient last saw the respondent shortly prior to his release on bail later that day.
- [50]It is difficult to see how QCS would have had an obligation to provide continuing psychological treatment to the patient following his release from prison. It is not possible to conclude that the respondent herself would have had a continuing obligation to provide psychological services to the patient following his release from prison by virtue of her contracting by QCS. In those circumstances, it is arguable that the respondent, at least by virtue of any contractual or service relationship with QCS, had no continuing obligation to provide psychological services to the patient or arrange for alternative psychological treatment following his release from prison.
- [51]However, Allegation 3 must be considered in light of the evidence, which has earlier been discussed, regarding the grant of bail to the patient, subject to a condition that he continue to receive psychological treatment from the respondent and the findings that have earlier been made as to what must have been the respondent’s knowing involvement in support of an application for bail including such special condition.
- [52]Having held herself out as willing and able to provide such treatment to the patient but having no intention to and, in fact, not providing any such treatment to the patient following his release from prison, there was an ethical and professional obligation upon the respondent to at least take reasonable steps to encourage the patient to seek and obtain psychological treatment and/or counselling from another appropriately qualified professional. It is clear that the respondent did not do so. Mere assertions by the respondent that she encouraged the patient to seek therapy elsewhere are insufficient to found a finding to the contrary. In circumstances where the respondent was aware of the condition attaching to the patient’s bail, and where she had no intention of providing such psychological treatment in compliance with such special condition of the bail, and in circumstances where the respondent was at least aware, if not supportive of, the patient’s cessation of antipsychotic medication, such a suggestion by the respondent would be entirely inadequate to discharge her professional and ethical obligations regarding continuity of care.
- [53]The Tribunal is satisfied to the requisite standard of proof that Allegation 3 is made out and of the appropriate characterisation of such conduct as unprofessional conduct.
Sanction
- [54]The main consideration for the Tribunal when determining any orders for sanction is the health and safety of the public.[4] 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 maintenance of professional standards, the preservation of public confidence in the psychological profession and the need to deter not only the respondent, but also other psychologists, from engaging in like conduct.
- [55]In circumstances where the respondent has not held registration for something approaching nine years, recency of practice considerations alone would render it most unlikely that the respondent would be able to satisfy requirements for reregistration as a registered psychologist. In all the circumstances, it is most unlikely that the respondent would, in the future, seek reregistration as a psychologist. Considerations of immediate protection of the public and future patients from the respondent or considerations of personal deterrence, therefore, do not loom large in the circumstances. Considerations of general deterrence and protection of the reputation of the profession are of more significance.
- [56]The very serious departure by the respondent from the professional standards expected of a registered psychologist deserves denunciation by the Tribunal and a reprimand by the Tribunal. Those considerations, despite the unlikelihood of the respondent re-applying for registration, also support an order that the respondent be disqualified from applying for reregistration as a psychologist for a period of time.
- [57]Given the serious nature of the misconduct of the respondent and the absence of any evidence from her as to subsequent insight or remorse, it may well have been open to the Tribunal to find that the respondent’s character is so indelibly marked by her misconduct that she would never be a fit person to resume practice as a psychologist such that a permanent disqualification from applying for reregistration would be appropriate.
- [58]However, in circumstances where the respondent has not appeared at the hearing, considerations of procedural fairness mean that the Tribunal should not impose a sanction more severe than that proposed in written submissions of the applicant earlier served upon the respondent.
- [59]For those reasons, the period of disqualification will be one of twelve months.