Health Ombudsman v O'Reilly[2021] QCAT 362

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

Introduction

1. [1]
   This is a referral of a health service complaint against Nichola Lea O'Reilly (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.
2. [2]
   The parties are agreed as to the facts of the conduct the subject of the referral and its appropriate characterisation as professional misconduct. The nature of the professional misconduct is the respondent’s failure to maintain proper professional boundaries with a patient. The respondent’s conduct was not sexual or predatory. It was less egregious conduct than a boundary violation of that type. This matter hopefully serves as a salutary reminder to medical practitioners that a boundary violation of any type may amount to professional misconduct and result in significant adverse consequences to the practitioner.
3. [3]
   The respondent is 52 years of age. She obtained a Bachelor of Medicine/Bachelor of Surgery degree in 1994 and was first registered as a medical practitioner with the Medical Board of Queensland on 11 April 1995. She obtained fellowship with the Royal Australian College of General Practitioners in 2013 and holds both general and specialist general practice registration with the Medical Board of Queensland. The respondent has worked as a medical practitioner in Townsville, principally as a general practitioner, for about 27 years. She is presently the practice principal at a Townsville general practice medical centre.

Conduct

4. [4]
   The patient the subject of the referral (Patient A) is about the same age as the respondent. The respondent first met and treated Patient A in 1996, when she was working at the Townsville Aboriginal and Islanders Health Service. She developed a good rapport with him at that time, and it seems that, even at that initial stage, the boundaries of the professional therapeutic relationship may have been slightly blurred by means of their friendship. The respondent deposes to having met with Patient A while she was on maternity leave so that he could meet her baby, and they did have some limited telephone contact over some following years, when Patient A contacted the respondent to inform her as to events in his personal life.
5. [5]
   Their contact resumed on 24 September 2015, when Patient A booked an appointment at the general practice in Townsville where the respondent was then, and remains now, in practice. On that date, upon recognising Patient A, the respondent gave him a hug and welcome prior to their consultation. At the end of the consultation, the respondent agreed that she would treat Patient A.
6. [6]
   Between 24 September 2015 and 2 March 2017, Patient A had 21 consultations with the respondent at the medical centre. There was a notable gap of a period of about nine months between the thirteenth consultation on 8 March 2016 and the fourteenth consultation on 28 November 2016, and I will return to the circumstances of that later in these reasons.
7. [7]
   During the period of the treating relationship, from September 2015 to March 2017, Patient A suffered from a number of medical conditions, including diabetes, anxiety, depression, post-traumatic stress disorder, and drug dependence (diazepam). The respondent accepts that he was a vulnerable individual due to such conditions.
8. [8]
   As noted at the outset of these reasons, the nature of the non-therapeutic relationship between the respondent and Patient A was not sexual. It is better described as a close friendship. That friendship developed over the course of the initial period of the treating relationship.
9. [9]
   After the third consultation on 10 October 2015, the respondent asked Patient A if he would like to book his next appointment in a midday timeslot and join her for lunch afterwards. Patient A agreed, and the respondent and Patient A subsequently had lunches together at a café in a shopping complex near the medical centre. The respondent deposes that, from 27 November 2015, the lunches changed to meetings at a nearby fish and chips shop after consultations finished on a Friday afternoon. She deposes that there were three such afternoon lunch meetings whilst she was Patient A’s treating general practitioner.
10. [10]
    Between May 2016 and April 2017, the respondent had contact with Patient A, either by telephone call or text message, on 436 occasions. Text messages from the respondent to Patient A included statements that he was the respondent’s “soul mate” and “I have waited so long for you to come back into my life” and “Love the little camper. So cute just like its owner”.
11. [11]
    In or about early March 2016, the respondent became aware that Patient A had commenced the process of making a will. Patient A informed the respondent that he had seen his solicitor and that he had included, or intended to include, the respondent as a beneficiary in his will. Coincidentally, the solicitor mentioned by Patient A was also the respondent’s solicitor. The respondent contacted the solicitor to discuss the matter, and he advised her that she could not be both Patient A’s treating doctor and a beneficiary under his will.
12. [12]
    The respondent spoke with Patient A and asked him what type of relationship he wanted to have with her, in that he would have to choose between a doctor/patient relationship or a friendship. Patient A told the respondent that he wanted to maintain a friendship with her, and accordingly, the respondent asked him to seek a new treating general practitioner. That led to the gap in the treating relationship I referred to earlier in these reasons.  Patient A’s records note a transfer of care to another general practitioner at the medical centre on 11 March 2016.
13. [13]
    On or about 28 April 2016, Patient A confided in the respondent that he was suicidal, and she provided him with emotional support and reasoned him away from acting on his suicidal ideation. The respondent advised Patient A’s treating general practitioner of the situation and, after a consultation on 29 April 2016, that general practitioner arranged the admission of Patient A to the Townsville Private Clinic. Patient A was admitted to the Townsville Private Clinic between 3 and 24 May 2016.
14. [14]
    The respondent continued to have friendly contact with Patient A during the course of, and subsequent to, the course of his admission, and subsequent to his discharge. That would include the Patient A bringing takeaway food for the respondent and Patient A to eat at the practice while she caught up with paperwork on a Friday evening.
15. [15]
    It can be observed that if the nature of the relationship had continued in such a vein, then it would be most unlikely that the respondent would be before the Tribunal. Unfortunately, though, the treating relationship did resume with the consequence of more serious blurring of the therapeutic and personal relationships between the respondent and Patient A. It seems that initially occurred when Patient A’s regular treating general practitioner was on leave, and the respondent consulted with Patient A on three occasions in November and December 2016 in that general practitioner’s absence.
16. [16]
    The seriousness of the continuing boundary violation was then exacerbated by the fact that, on 6 January 2017, Patient A did execute a will leaving the whole of his estate to the respondent. The subsequent consultations between the respondent and Patient A therefore constitute the most serious part of the boundary violation.
17. [17]
    In late-January 2017, the general practitioner, who had taken over the care of Patient A in March 2016, left the practice. Patient A’s next consultation was with another general practitioner of the practice on 27 January 2017. Patient A later informed the respondent that he did not have a good rapport with that general practitioner and asked if he could again be the respondent’s patient and that she recommence as his treating general practitioner. The respondent deposes as follows:

I agreed to recommence as Patient A’s treating general practitioner and told him that he would need to remove me as a beneficiary form (sic) his will before seeing me. I trusted that Patient A would do this and did not seek to verify that this had occurred.

18. [18]
    The respondent subsequently consulted with Patient A on five occasions, in late January through to early March 2017. Those consultations included arranging correspondence to Patient A’s treating psychiatrist regarding his need for prescriptions of Valium during a planned trip around Australia, and the respondent herself prescribing diazepam to Patient A, including during their last consultation, on 2 March 2017, a private prescription for 21 5 mg diazepam tablets, with 25 repeats.
19. [19]
    On 9 March 2017, the respondent composed an email purportedly from Patient A to the respondent, advising that Patient A had vacated his rental unit and would forfeit his rental bond. The respondent sent a copy of the email to the relevant real estate agent by facsimile, advising that it was a copy of an email from Patient A. There is no suggestion that there was any benefit to be gained by the respondent in doing so. It may have been motivated partly by concern that the circumstances of Patient A apparently breaking his lease might reflect negatively upon the respondent, who had been his reference for obtaining the unit, but most likely was motivated by concern on the part of the respondent for Patient A, given the circumstances of how he had failed to take proper steps to terminate his tenancy. Ultimately, it is not a matter of particular significance, but merely goes to demonstrate the extent to which the respondent had involved herself in the personal affairs of Patient A whilst also being his treating practitioner.
20. [20]
    In or about mid-April 2017, the respondent sent a text message to Patient A advising him that he was discharged from her care. Patient A’s medical records with the practice indicate that the respondent’s subsequent involvement with Patient A was merely organising for copies of his records to be sent to other treating practitioners at their request and with Patient’s A authority.
21. [21]
    The Medical Board of Australia Good Medical Practice: A Code of Conduct for Doctors in Australia provides:

Whenever possible, avoid providing medical care to anyone with whom you have a close personal relationship. In most cases, providing care to close friends, those you work with and family members is inappropriate because of a lack of objectivity, possible discontinuance of care, and risks to the doctor and patient.

…

Patients rely on the independence and trustworthiness of doctors for any advice or treatment offered. A conflict of interest in medical practice arises when a doctor, entrusted with acting in the interests of a patient, also has financial, professional and personal interests, or relationships with third parties, which may affect their care of a patient.

…

Good medical practice involves … recognising potential conflicts of interests that may arise in relation to initiating or continuing a professional relationship with a patient.

22. [22]
    It was incumbent upon the respondent to draw clear professional boundaries in her treatment of Patient A and maintain them. This was particularly so, given Patient A’s vulnerabilities, including his drug dependence.
23. [23]
    The Office of the Health Ombudsman (OHO) obtained an expert report from Dr Samuel Robert Stevens, general practitioner, who opined as follows:

In therapeutic relationships, it is essential to maintain objectivity and to sometimes deliver information that may not want to be heard by a patient or to reset/reinforce strict boundaries. An applicable example is a patient with a drug addiction. The disease of an addiction is not respectful of professional or personal boundaries in pursuit of its end, and it is imperative that the treating practitioner recognises this and sets strict prescribing and contact boundaries as part of the therapeutic alliance. The function of a personal relationship is that of shared emotions and ability of recontact – neither of which are applicable in a treating relationship of a patient with drug dependence.

The existence of a personal, non-therapeutic relationship between Dr O'Reilly and Patient A put the patient in a position of potential harm. Patient A was already experiencing symptoms of PTSD, depression and anxiety regarding actions that occurred during and after previous relationships. Had (realistically eventual) negative emotional events occurred between Dr O'Reilly and Patient A it would likely have led to mental deterioration – given his documented requirement for admission to a psychiatric facility with suicidal ideation after untoward events occurred from previous personal relationship deteriorations. It is evidenced by the medical notes an extensive history of Patient A having poor coping strategies in response to interpersonal adversity.

24. [24]
    The respondent’s boundary violation was exacerbated by her continuing to treat the patient in knowledge that he had nominated her as the sole beneficiary to his will. It was entirely inadequate for the respondent to tell the patient that his continued treatment would depend upon him removing her as beneficiary in circumstances where she did not seek to verify that that had in fact occurred.

Characterisation of conduct

25. [25]
    As noted earlier, the respondent does not resist the finding that her conduct should be characterised as professional misconduct. The Tribunal accepts the submissions by both parties that the respondent’s conduct should be characterised as “professional misconduct” as defined by limbs (a) and (b) of the definition of that term in section 5 of the Health Practitioner Regulation National Law (Queensland).
26. [26]
    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

27. [27]
    The main consideration for the Tribunal when determining any orders for sanction is the health and safety of the public.^[1] The purpose of the sanction is protective and 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 practitioners from engaging in like conduct.
28. [28]
    There are a number of circumstances which suggest that considerations of personal deterrence do not loom large in consideration of sanction. The respondent has demonstrated insight into the wrongfulness of her conduct. She has expressed sorrow and shame for her conduct. She has undertaken an education program with her medico-legal insurer in relation to maintaining appropriate professional boundaries and ethics generally. She has consulted with Dr Frank New, psychiatrist, with a view to gaining personal insights into her conduct and developing strategies for managing those issues in the future. Dr New opines as follows:

My understanding is that Dr O'Reilly has developed good quality insight regarding the appropriate management of such issues [her medical management of Patient A and her failure to maintain appropriate professional boundaries with him].

Four years has elapsed since the conduct, during which time the respondent has not been subject to any restrictions on her practice, and there has been no suggestion of any repetition of such conduct. Considerations of general deterrence, maintenance of professional standards and public confidence in the profession are of more significance in determining appropriate orders for sanction.

29. [29]
    In addition to the mitigating factors of the respondent’s own steps towards rehabilitation referred to above, there is an additional mitigating factor of delay. The respondent became aware of the complaint in late-2017. There was an inordinate delay of some two years between the conclusion of the investigation by the OHO on 27 September 2018 and the matter being referred to the Director of Proceedings, and the referral of the matter to the Tribunal on 24 September 2020. The only explanation provided by the applicant is the familiar reference to an historical backlog of matters with the Director of Proceedings during that time. The applicant accordingly acknowledges the effect of such delay and the matter “hanging over the respondent’s head” for an additional period of time as a mitigating factor. The respondent herself deposes that the period since becoming aware of the complaint has “been profoundly stressful”.
30. [30]
    It is reasonable to infer that the experience of the respondent awaiting resolution of a disciplinary complaint and proceedings is likely to be a stressful one, and that that has been exacerbated to some extent by reason of the inordinate delay in the consideration of the matter by the Director of Proceedings. Unlike some cases, however, that delay has not been in circumstances where there has been some associated restriction on the practitioner’s practice. It is appropriate that some regard be had to the delay in this matter as a mitigating factor^[2], and the Tribunal has had such regard.
31. [31]
    Both parties submit that the respondent should be reprimanded. The respondent’s professional misconduct does deserve denunciation by the Tribunal. Pursuant to section 107(3)(a) of the HO Act, the Tribunal reprimands the respondent.
32. [32]
    Both parties also concur that a relatively short period of suspension of the respondent’s registration is an appropriate response to her admitted professional misconduct. The parties differ as to the length of any period of suspension. The applicant submits that the respondent’s registration should be suspended for a period of three months, or alternatively, that the respondent should be fined the sum of $20,000.
33. [33]
    Decisions of this and other Tribunals in which fines have been imposed in cases of boundary violations^[3] tend to support the quantum of fine contended for by the applicant.
34. [34]
    That is notwithstanding the distinction, sought to be made on behalf of the respondent, regarding the decisions of Grogan and Rodney, as to the significance of the factor of the respondent becoming a beneficiary under the will of Patient A., The respondent submitted that those cases could be distinguished in that, in Grogan, the practitioner took no steps towards terminating the therapeutic relationship or requiring his removal as a beneficiary as a condition of continued treatment; and in Rodney, the practitioner was actively involved in the creation of the will and willingly became a power of attorney to the patient. The respondent, in contrast, took active steps to manage the conflict of interest presented by her becoming a beneficiary under Patient A’s will by, firstly, transferring his care to another general practitioner when she became aware of Patient A’s intention to benefit her in such a way, and told Patient A that he must remove her as a beneficiary under his will for her to resume his treatment. It is perhaps not a point of great distinction, given that the respondent took no real steps to ascertain if Patient A had, in fact, done as she had requested before continuing the treating relationship in 2017. In any event, a fine in the sum of $20,000 would adequately reflect any difference in seriousness of the respondent’s case and those of Grogan and Rodney.
35. [35]
    That has been a sterile discussion in circumstances where the respondent does not contend that a fine would be a more appropriate order by way of sanction than any period of suspension. There is some force in the respondent’s submission that a period of suspension would have a more salutary general deterrent effect than a fine.
36. [36]
    Ultimately, the dispute between the parties comes down to this: should the respondent be suspended for a period of three months; or, as submitted by the respondent, for a period of one month.
37. [37]
    In support of the contention that the period of suspension should be one month, the respondent submits that the nature of the boundary violation is towards the lower end of the scale of seriousness of boundary violations. The respondent submits, accurately, that there is no evidence of actual harm to Patient A, whilst acknowledging quite properly that potential of harm of patients in such circumstances remain a most significant consideration. The respondent relies upon those other matters in mitigation referred to earlier in these reasons.
38. [38]
    Ultimately, the question becomes one of whether a suspension for a term of one month or three months or somewhere in between is adequate to meet the protective purposes of sanction, and in particular, considerations of general deterrence, maintenance of professional standards and public confidence in the profession. It is a matter upon which reasonable minds might differ, and in fact, it is a matter upon which the professional assessors assisting me did differ. Ultimately though, I alone constitute the Tribunal and the determination rests with me.
39. [39]
    In all of the circumstances, notwithstanding those mitigating factors in favour of the respondent, including the factor of delay, I have determined that no period of suspension of less than three months is adequate to meet the protective purposes of sanction. Pursuant to section 107(3)(d) of the HO Act, the Tribunal suspends the respondent’s registration for a period of three months, commencing on and from 6 November 2021.