Health Ombudsman v Pearson[2021] QCAT 42

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   The applicant referred these disciplinary proceedings to the Tribunal on 31 January 2020. The applicant’s position has always been that the admitted conduct by the respondent should be characterised by the Tribunal as “professional misconduct”, that is:

Unprofessional conduct…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: …^[1]

2. [2]
   When the respondent, through his experienced lawyers, filed his response to the referral on 14 April 2020, he then maintained that the admitted conduct amounted to the lesser “unprofessional conduct”; and when the applicant filed its submissions 13 October 2020, it responded to what was then the respondent’s position.
3. [3]
   However, by the time the respondent’s submissions to the Tribunal were filed 23 October 2020 under the hand of Mr Diehm QC,^[2] the respondent was (appropriately) accepting that his conduct amounted to professional misconduct and that the sanctions sought by the applicant were an appropriate disciplinary response.

Background:

4. [4]
   At all relevant times the respondent was:

   1. (a)
      registered as a medical practitioner with the Medical Board of Australia (the Board) holding general and specialist (psychiatry) registration;
   2. (b)
      a health service provider within the meaning of section 8(a)(i) of the Health Ombudsman Act 2013 (Qld) (the Act), being a health practitioner under the Health Practitioner Regulation National Law (Queensland) (the National Law);
   3. (c)
      a fellow of the Royal Australian and New Zealand College of Psychiatrists (RANZCP); and
   4. (d)
      subject to the codes and guidelines approved by the Board, including the Board’s “Good Medical Practice: a Code of Conduct for Doctors in Australia” (the Code of Conduct).
5. [5]
   The referral contains two allegations. The first is an allegation of boundary violations with a patient over a period of time. The respondent was in a treating relationship with his patient from September 2010 to April 2017. He treated her for alcohol dependence, generalised anxiety and major depressive disorder.
6. [6]
   The respondent initially treated the complainant patient as an inpatient of the Currumbin Clinic on the Gold Coast in September 2010. This followed her admission to the Gold Coast Hospital after an overdose of Valium and sleeping tablets combined with alcohol.
7. [7]
   Over the course of the treating relationship, the respondent treated the complainant as an inpatient and outpatient of the Currumbin Clinic and also at the respondent’s private consulting rooms in Bangalow in New South Wales.
8. [8]
   Allegation 2 is that the respondent failed to address transference issues.
9. [9]
   From at least as early as October 2012, until the end of the treating relationship in April 2017, the respondent was aware of issues of idealisation and eroticised transference by the complainant towards him and failed to appropriately manage these issues, including by:

   1. (a)
      continuing to treat the complainant without establishing and/or maintaining appropriate professional boundaries;
   2. (b)
      failing to seek the advice and guidance of professional peers, in particular in relation to referring the complainant to another practitioner; and
   3. (c)
      failing to refer the complainant to another practitioner.

The relevant conduct

10. [10]
    The parties have filed an agreed statement of facts.^[3] The respondent was born on 30 March 1961, and his female patient on 24 February 1969. At all material times the respondent was an experienced psychiatrist.
11. [11]
    The relevant conduct is summarised in the applicant’s submissions.^[4] The respondent treated the complainant, a woman in her 40s, in relation to alcohol dependence, generalised anxiety disorder and major depressive disorder over the period from December 2010 to April 2017. Commencing at least as early as December 2012, the respondent failed to maintain professional boundaries with the complainant. Despite idealisation and eroticised transference by the complainant towards him, the respondent did not refer her to another practitioner, continuing to treat her until she terminated the relationship in April 2017.
12. [12]
    The conduct is particularised in the agreed statement of facts. His boundary violations included inappropriate comments and conduct both within and outside the consultation process.
13. [13]
    During various consultation sessions, the respondent told the complainant that he had previously had an extramarital affair; had previously had a sexual relationship with a family friend who was around 18 years old; discussed the state of his marriage with the complainant; and advised her that his marriage had ended. During other consultation sessions, the respondent discussed with her a complaint made about him to the Medical Board regarding the prescribing of antidepressants to his son; and, at times, shared food and drink and drank coffee with her. During other consultation sessions, the respondent showed the complainant a photograph of a vibrator on a website; and showed her a photo of a naked woman breastfeeding a baby. During another consultation session, the respondent (he says inadvertently) failed to adequately protect the identity of other patients he was treating, and the complainant saw the names of other patients.
14. [14]
    He also failed to maintain professional boundaries outside the consultation process.
15. [15]
    On 25 December 2012 (by a series of text messages), the respondent and the complainant arranged to meet in Byron Bay the following day. On 26 December 2012, the respondent met with the complainant in her car at Byron Bay, whereupon he:

    1. (a)
       sat and talked with her in her car;
    2. (b)
       kissed her; and
    3. (c)
       gave her a CD of music he had prepared for her with the inscription “KM.KS.Xmas 2012”.(these were acronyms they had for each other)
16. [16]
    Over the course of the treating relationship, the respondent sent and received text messages to and from the complainant (including using the WhatsApp messaging platform), including:

    1. (a)
       In January 2014, the respondent sent the complainant text messages with photos from his holiday in Canada, including a short video of himself on a ski lift.
    2. (b)
       In around the middle of 2014, the respondent received from the complainant a photograph of herself in her underwear.
    3. (c)
       In October/November 2015, the complainant sent the respondent photos while she was on holidays in Barcelona/Paris/New York/London with accompanying messages.
    4. (d)
       In November/December 2015, the respondent received from the complainant messages, including messages to the effect she was missing him; wishing him a merry Christmas by using the name “Gregory Nicholas”; stating that she wished she was away with him; wishing him a happy new year; stating that her “heart is full of love” for him with a love heart emoticon; stating that she missed him and wishing him a happy Friday using an acronym “kind sir”.
17. [17]
    In June 2016, the complainant sent a message to the respondent via WhatsApp saying: “Just want you to know alcohol is my addiction, not you!! I just love and adore you”. In October 2016, the complainant sent a message to the respondent via WhatsApp saying: “I do miss you KS and I’m trying to leave you be…I’m getting better, but it’s not easy. I WILL ALWAYS have your back, you have my word”.
18. [18]
    Over the course of the treating relationship, the respondent and the complainant regularly exchanged text messages wishing each other “happy Friday”. Over the course of the treating relationship, the respondent and the complainant exchanged messages in relation to the complainant’s romantic and other feelings towards him, problems in the complainant’s marriage and other personal matters. As noted above, over the course of the treating relationship, the respondent permitted his female patient to use nicknames for him and referred to himself as “KS”.

Characterisation of the conduct

19. [19]
    The applicant has the responsibility of proving that the admitted conduct amounts to professional misconduct. It is appropriate to view the conduct contained in the two allegations as essentially one course of conduct, as the admitted conduct in relation to both allegations is inextricably interrelated and connected. This is the approach taken by the Tribunal in Health Ombudsman v Hardy [2018] QCAT 416; Health Ombudsman v Cash [2020] QCAT 49; and Health Ombudsman v Fletcher [2020] QCAT 478.
20. [20]
    The respondent admits that by his conduct he has breached a number of provisions of the Codes referred to above. These Codes are admissible in proceedings such as these as evidence of what constitutes appropriate professional conduct or practice for a health professional.^[5]
21. [21]
    The Office of the Health Ombudsman sought advice from experienced clinical and forensic psychiatrist Dr Michael Beech, in relation to the respondent’s conduct, and its relationship to good practice by psychiatrists. His opinion is accepted in full by the respondent, although at the time it was given, the respondent was disputing some of the factual allegations made by the complainant.
22. [22]
    It is helpful to quote from Dr Beech’s opinion, in part, as it is most relevant to the seriousness of the respondent’s boundary violations, which did not proceed to an actual sexual relationship. Dr Beech’s opinions are also very relevant to the issue of general deterrence and the need for the Tribunal, through its orders, to maintain confidence in this branch of medicine, which by its very nature involves treating relationships with some of the most vulnerable patients.
23. [23]
    In part, Dr Beech states:

I am sceptical of the advice that text messages between doctors and patients in addiction medicine is a risk management tool…if it was to be a therapeutic tool, then I think that it should have been documented, clearly delineated, and reviewed; …the texts from the patient should have been dealt with directly, and she should have been clearly told that they were inappropriate. This should have been documented. It should not have been allowed to continue. It was not enough to simply ignore the texts. If he did tell her to stop, then it should have been documented. If she refused then that should have been documented and he should have referred her to another psychiatrist…I think that it was grossly inappropriate to give her a CD of songs at Christmas time, let alone meet her at a car park on Boxing Day to do it. This transgresses many boundaries. It was inappropriate to meet her, let alone sit in her car.

These are behaviours that stir up transference and erotic transference. His referring to himself as KS on the CD adds to this…transference is a common phenomenon in therapeutic relationships. It is managed by the therapist maintaining a professional attitude and stance towards the patient and the therapy process. It requires the establishment of professional boundaries (attitude, dress, time and place, gifts, self-disclosure, physical conduct, etcetera); …Dr Pearson has not managed the transference issues appropriately. Instead of setting up and maintaining professional boundaries, he has crossed them multiple times in multiple ways…he should have maintained boundaries around personal disclosure, gifts, meeting places, and communications.

He should have directly told (the patient) that her texts were inappropriate, and he should have set limits on that behaviour, and other behaviours. If she continued, he should have sought peer advice, but, in my opinion, that advice is likely to have been to refer the patient onto another doctor, with information about the transference problems that had occurred. This should have been documented; …essentially, he has engaged in multiple boundary crossings with a vulnerable patient and not properly addressed eroticised transference over several years, and he has not documented it well. There is nothing in the notes other than references to “transference issues” to indicate a five-year history of text messages, photos, personal disclosures, etcetera.

24. [24]
    The acceptance now by the respondent that his admitted conduct amounts to professional misconduct also assists the Tribunal in concluding to the appropriate standard that the proved conduct when considered as a whole constitutes professional misconduct.

Sanction

25. [25]
    The purpose of these proceedings is protective and not punitive. The fundamental principle that informs and guides the Tribunal when disciplining health service providers is that the health and safety of the public is paramount.^[6]
26. [26]
    As noted earlier, the parties have agreed as to the sanctions. In those circumstances the Tribunal ought not to depart from that proposed sanction agreed between the parties, unless it falls outside of the permissible range of sanction for the conduct, bearing in mind that the purpose of disciplinary proceedings is protective, rather than punitive.
27. [27]
    The respondent has filed an affidavit in these proceedings sworn 29 September 2020.^[7] He has engaged Dr Frank Varghese, a very experienced forensic and clinical psychiatrist, as a clinical supervisor, and has undertaken a number of education sessions through Risk Advisory Service on the recommendation of his indemnity insurer.
28. [28]
    He has cooperated in these disciplinary proceedings, and has obviated the need for the complainant patient to give evidence, which would have been extremely stressful for her after such a long period of time. There have been no other notifications since the conduct the subject of the referral. I agree with the applicant, that the respondents’ actions since being notified of the complaint show some insight and remorse.
29. [29]
    Nevertheless, the conduct is serious, in the context of the special treating relationship between a psychiatrist and (in this case) his vulnerable patient. He failed to adhere to his fundamental professional and ethical obligations towards her. His conduct is apt to undermine public confidence in the profession and in psychiatry in particular.
30. [30]
    The applicant has referred to a number of cases in its submissions, at a time when it was unaware that the respondent would not contest the finding of professional misconduct or the sanction proposed by it. I agree with Mr Diehm QC that the respondent’s conduct here is much more serious than the conduct of Dr Holding, referred to in Medical Board of Australia v Holding [2014] QCAT 632, where the general practitioner sent three text messages to a patient in a 24 hour period inviting her out socially, and where his conduct was characterised as unprofessional conduct.
31. [31]
    In Health Ombudsman v Upadhyay [2020] QCAT 163, a medical practitioner, over a period of four months, communicated and met up with a patient he had treated in the emergency department of the hospital where he was employed. The interactions were generally of a social nature; however, some medical advice and assistance was provided to her on occasions. The practitioner also gave the former patient money and provided her with accommodation in a hotel on one occasion. There was no sexual or intimate element to the relationship. The Tribunal agreed with the joint submissions of the parties that the conduct amounted to professional misconduct.
32. [32]
    That conduct was not as protracted as the conduct here and did not involve the special relationship of an actual treating relationship between a psychiatrist and a vulnerable patient, and there was no suggestion of transference. The parties there agreed with the finding of professional misconduct, a reprimand, and a fine of $10,000.
33. [33]
    A reprimand is not a trivial penalty,^[8] and can have serious adverse implications for a professional health provider. It also serves as a public denouncement of the conduct, which is apt to discourage health practitioners from engaging in this sort of behaviour.
34. [34]
    In those circumstances, the orders of the Tribunal will be as follows:

1. The Tribunal finds that the respondent has behaved in a way that constitutes professional misconduct.
2. The respondent is reprimanded.
3. The respondent is required to pay a fine of $15,000 to the applicant within a period of six months.
4. Each party is to bear their own costs of the proceedings.