Paramedicine Board of Australia v Craig Reis
[2022] QCAT 120
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- Paramedicine Board of Australia v Craig Reis[2022] QCAT 120
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Paramedicine Board of Australia v Craig Reis[2022] QCAT 120
Paramedicine Board of Australia v Craig Reis[2022] QCAT 120
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Paramedicine Board of Australia v Craig Reis [2022] QCAT 120 |
PARTIES: | paramedicine board of australia (applicant) v craig reis (respondent) |
APPLICATION NO/S: | OCR218-21 |
MATTER TYPE: | Occupational regulation matters |
DELIVERED ON: | 11 April 2022 |
HEARING DATE: | 11 April 2022 |
HEARD AT: | Brisbane |
DECISION OF: | Judicial Member J Robertson Assisted by: Ms K. French, Mr L Parker, Ms M Ridley. |
ORDERS: |
|
CATCHWORDS: | PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – OTHER HEALTHCARE PROFESSIONALS – paramedics – using restricted computer without consent – failure to maintain appropriate professional boundaries with patient – utilised restricted information to message patient – exchange messages with patient of a personal, intimate and sexual nature – breach of paramedicine code of conduct – professional misconduct – reprimand imposed Criminal Code (Qld) Health Practitioner Regulation National Law (Qld) Penalties and Sentences Act 1992 (Qld) Briginshaw v Briginshaw (1938) 60 CLR 336 Health Ombudsman v Masamba [2019] QCAT 227 Health Ombudsman v Obet [2020] QCAT 338 Medical Board of Australia v Jansz [2011] VCAT 1026 Nursing and Midwifery Board of Australia v Ballarto [2020] VCAT 248 Nursing and Midwifery Board of Australia v Seijbel-Chocmingkwan [2015] QCAT 283 |
APPEARANCES & REPRESENTATION: | This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) |
REASONS FOR DECISION
- [1]On the 18th of March 2022, the Paramedicine Board of Australia (the Board) referred a health complaint concerning the respondent, containing two grounds, to the Tribunal, pursuant to section 193B(2) of the Health Practitioner Regulation National Law (Qld) (the National Law).
- [2]The two grounds are interrelated, in that both concern admitted professional misconduct by the respondent in relation to a female patient, Ms MB.
- [3]The first ground relates to the respondent’s conviction on his own plea of guilty in the Toowoomba Magistrates Court, of one count of using a restricted computer without consent in breach of section 408E of the Criminal Code (Qld). The second ground is that the respondent, as a registered health practitioner, between the 2nd of March 2019 and on or about the 14th of March 2019, failed to maintain appropriate professional boundaries with Ms MB.
- [4]In the respondent’s response to the referral dated the 10th of November 2021 and filed in the Tribunal on an unknown date, the respondent admits the conduct the subject of both grounds, admits that his conduct breached various provisions of the Code of Professional Conduct for Paramedics of Paramedicine in Australia [2018] (the Code), and admits in relation to both grounds that his conduct constitutes professional misconduct.
- [5]The parties have each filed submissions, and a statement of what is described as “agreed and disputed facts”. The parties have agreed that the matter be heard on the papers.
- [6]As identified in his response and in the statement of agreed and disputed facts, what is disputed is not a fact or facts, rather it is contended by the Board, and disputed by the respondent, that the admitted conduct is caught by the definition of “professional misconduct” in section 5(c) of the National Law. In other words, there is an argument about characterisation, not about facts.
Background
- [7]The respondent began working for the Queensland Ambulance Service (QAS) in January 2003. He was registered as a paramedic with the Board on the 10th of January 2019. Prior to the conduct, the subject of this referral, he had no disciplinary or criminal history. He has filed an affidavit in these proceedings. It is not disputed that prior to the relevant conduct, he had been a competent paramedic of good character.
Regulatory and Employment History
- [8]A patient (Ms MB) made a formal complaint to QAS Toowoomba on the 14th of March 2019. QAS formally notified the Office of the Health Ombudsman (the HO) on the 29th of March 2019.
- [9]An investigation was commenced by the Australian Health Practitioners Regulatory Authority (Ahpra) who then communicated with the respondent.
- [10]The respondent was suspended by QAS on full pay, between the 29th of March 2019 and the 16th of April 2021, pending the outcome of the disciplinary process. On the 5th of June 2019, the respondent provided an undertaking in writing to Ahpra not to practise as a paramedic.
- [11]On the 16th of April 2021, QAS terminated the respondent’s employment.
- [12]At all times relevant to the conduct the subject of this referral, the respondent was a registered health practitioner under the relevant provisions of the National Law, and employed as a paramedic with QAS.
- [13]He surrendered his registration on or about the 29th of October 2021. He has not worked as a paramedic since the 29th of March 2019.
- [14]In his affidavit, he indicates that he has pursued other career employment opportunities, and “currently has no plans or intentions to seek registration as a paramedic”, although he does not “rule out (that) possibility … at some future stage”.
The Relevant Conduct
- [15]The relevant conduct is set out in the statement of agreed and disputed facts. On the 21st of February 2019, the respondent was dispatched in the course of his duties to a medical centre in Kearneys Spring in Queensland in order to transport Ms MB to the Toowoomba Base Hospital. Subsequently, he entered her records in the QAS restricted computer system, using the digital ambulance report form system.
- [16]On the 2nd of March 2019, while rostered on duty, at approximately 6.12 am, the respondent intentionally accessed the report system and the QAS computer system at his place of employment, for an unauthorised and improper purpose. In so doing he acted contrary to QAS policies and contrary to the law. He had no clinical authorised or proper reason to access private records of Ms MB entered in the restricted computer system.
- [17]As a result, he breached the Code by accessing both the digital report system and the computer for an unlawful purpose, to access patient records inappropriately and specifically those referred to in the conduct statement 1, conduct statement 3 and conduct statement 8 of the Code.
- [18]As a result of his conduct, he was charged on the 23rd of August 2019, with one count of using a restricted computer without consent, contrary to section 408E of the Criminal Code (Qld).
- [19]On or about the 10th of September 2019, he was convicted on his own plea of guilty in the Magistrates Court of Queensland in Toowoomba of one count of using a restricted computer without consent, and was sentenced to be of good behaviour for a period of 12 months, subject to a $750 recognisance. No conviction was recorded.
- [20]This behaviour constitutes ground 1 in the referral.
- [21]In relation to ground 2, the respondent failed to maintain appropriate professional boundaries with Ms MB, in that on or about the 2nd of March 2019 at approximately 6.30 am, whilst on duty, he contacted her through the Messenger application, without her invitation or consent. In so doing he utilised improperly acquired information obtained from the QAS computer system, to initiate communication with Ms MB. He then exchanged at least 200 text messages, including of a personal and/or sexual nature with her, between the 2nd of March 2019 and on or about the 14th of March 2019.
- [22]In so doing he breached the Code by pursuing a non-therapeutic or personal relationship with a patient, including sending messages of an intimate or sexual nature, and specifically he breached conduct statement 3 and conduct statement 8 in the Code.
Characterisation and Conduct
- [23]The Board bears the onus of proof in accordance with the so-called “sliding scale” in the judgment of Dixon J (as the Chief Justice then was) in Briginshaw v Briginshaw (1938) 60 CLR 336.
- [24]The respondent unequivocally admits the conduct, the subject of both grounds. He also admits that his conduct in ground 1 constitutes professional misconduct, as defined in (a) of section 5 of the definition of that concept in the National Law, and that his conduct the subject of ground 2, constitutes professional misconduct as defined in limbs (a) and (b) of the definition in section 5; and that when considered cumulatively, his conduct the subject of grounds 1 and 2 constitute professional misconduct, as defined in limbs (a) and (b) of the definition of “professional misconduct” in section 5 of the National Law.
- [25]Because of the contest raised in the submissions, it is helpful to set out the relevant aspects of the definition in section 5 of the National Law:
Professional misconduct, of a registered health practitioner, includes –
- unprofessional conduct by the practitioner that amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of the equivalent level of training or experience; and
- more than one instance of unprofessional conduct that, when considered together, amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of the equivalent level of training or experience; and
- conduct of the practitioner, whether occurring in connection with the practice of the health practitioner’s profession or not, that is inconsistent with the practitioner being a fit and proper person to hold registration in the profession.
- [26]“Unprofessional conduct” of a registered health practitioner, means professional conduct that is of a lesser standard than that which might reasonably be expected of a health practitioner by the public or the practitioner’s professional peers, and includes –
“(a) A contravention by the practitioner of this Law, whether or not the practitioner has been prosecuted for, or convicted of, an offence relating to the contravention and
…
- The conviction of the practitioner for an offence under any other Act, the nature of which may affect the practitioner’s suitability to continue to practice the profession;”.
- [27]The Code is admissible in proceedings such as this, pursuant to section 41 of the National Law, as evidence of what constitutes appropriate and proper professional conduct for a health practitioner.
- [28]The conduct the subject of the criminal proceedings is obviously serious. It involved a serious breach of the respondent’s employer’s trust; and a serious invasion of the privacy of the patient, and a breach of her trust. He allowed his own personal interests to overcome his duty to his employer and his patient not to access that private information for his own use. It is conduct that is apt to undermine public confidence in his profession, which has such a vital role to play in our health system. Not surprisingly, the Code requires paramedics to act lawfully and in a manner designed to protect the confidentiality of patients. Conduct statement 8 requires paramedics specifically to ensure records are held securely, and not subject to unauthorised access.
- [29]The admitted conduct in Ground 1 is clearly professional misconduct as defined in section 5(a) of the National Law. As against that, the actions of the respondent in accessing the QAS computer and database unlawfully does not constitute a particularly serious example of the offence. This was clearly the impression that the presiding Magistrate formed when he sentenced the respondent on the 10th of September 2019. Unfortunately, the transcript of what occurred at the hearing is not provided with the hearing brief, but is reflected in his Honour’s brief sentencing remarks, that I can comfortably infer that the police Prosecutor related the contents of the QPS[1] to his Honour, which is in the hearing brief, which clearly linked his criminal offending to his actions in accessing Ms MB’s contact details and messaging her.
- [30]The penalty imposed was pursuant to section 19(1)(b) of the Penalties and Sentences Act 1992 (Qld) (the Act). It is the most lenient penalty available to a Court under the Act after an absolute discharge pursuant to section 19(1)(a) of the Act. Section 17(1) provides:
“(1) If a court considers that it is appropriate that no punishment or only a nominal punishment should be imposed on an offender, the court may make an order under section 19.”
- [31]A Court cannot record a conviction if it makes an order under section 19. Before making an order under section 19 the Court must consider the nature of the offences and:
“(c) circumstances (if any) under which the offence was committed that makes the offence less serious than what it would be if it had been committed under other circumstances”
- [32]The conduct in ground 2 is also very serious. He admits to unlawfully accessing the computer on the 2nd of March 2019 to obtain Ms MB’s confidential patient records for a private purpose. He then failed to maintain appropriate professional boundaries over approximately a 12-day period, by firstly contacting the patient via Messenger application, and then, once he had her telephone number, exchanging over 200 text messages with her including many of an overtly personal and/or sexual nature.
- [33]It is obvious that his conduct was deliberate and that he had a sexual interest in Ms MB. A fair reading of those messages, which extend over almost 100 pages of the hearing brief, does not suggest any suggestion that Ms MB, when she had realised who was contacting her, was not a willing participant in all the exchanges. It was completely inappropriate for the respondent to contact her in the first place using the personal information unlawfully obtained by him; however, it was she who offered to give him her telephone number in a text on the 2nd of March 2019 once he identified who he was.
- [34]It can be accepted that the authorities, for example, Health Ombudsman v Masamba [2019] QCAT 227, to which the Board has referred, are to the effect that any contact (especially of a sexual nature) irrespective of consent, by a practitioner with a patient or an ex-patient outside the strict clinical setting, is almost always regarded as serious and constituting professional misconduct. It should be stressed however, that each case should be considered on its own merits and obviously there is a spectrum within the rubric of “boundary violations” from the very serious to conduct at the lower level of seriousness. The respondent in the case of Masamba was a registered mental health nurse and the patient met him in a clinical setting. His boundary violations involved making unwanted sexual advances via text.
- [35]I agree with the respondent that although Ms MB was his patient, in the sense that he was one of the paramedics who transported her from the medical centre to the Toowoomba Base Hospital on the 21st of February 2019, thereafter he had no personal contact with her other than through the Messenger application and then by text. There is no evidence at all that Ms MB was vulnerable. In fact, the evidence, such as it is, is to the contrary.
- [36]The way in which the respondent sought to end the contact is concerning and compounds the seriousness of his conduct, ultimately the patient felt able and empowered enough to make an almost immediate complaint to QAS on the 14th of March 2019. This is not to understate the seriousness of the respondent’s overall conduct – merely to make the point that although his conduct both in grounds 1 and 2 was substantially below the appropriate standard it falls at the lower end of seriousness of professional misconduct.
- [37]In my opinion, and given the approach of the Tribunal to characterisation, and in particular the relative seriousness of the conduct, although it constitutes unprofessional conduct that is substantially below the standard reasonably expected of a health practitioner of an equivalent level of training and experience, and therefore professional misconduct as defined under the first and second limbs of section 5 of the National Law definition, the Board has not satisfied me that the conduct falls within the definition in section 5(c) of the National Law.
- [38]The Board has to prove to the relevant standard that the conduct is such “that it is inconsistent with a practitioner being a fit and proper person to hold registration”. The focus is on the conduct, and that necessarily requires an interrogation of the context in which the unprofessional conduct occurs[2].
- [39]I agree with the respondent that the conduct when viewed as a whole, falls at the lower end of the spectrum of seriousness of unprofessional conduct for the reasons I have exposed. I agree that the conduct can be characterised as a serious one-off lapse of judgment over a short period of time by a paramedic who had a prior exemplary history and who had acted impulsively and out of sexual interest by unlawfully accessing the private details of Ms MB to engage then in an intense exchange of texts over a short period of time, which involved no personal contact.
- [40]In relation to ground 2, I agree that the Board’s classification of some of the exchanges as salacious is appropriate. Some of the texts are explicitly sexual, but it has to be said they go both ways between consenting adults. The real offence by the respondent is accessing the information in the first place and then initiating contact using that private information.
- [41]It is accepted that, as a general proposition, there is a power imbalance between a healthcare provider and a patient, however the respondent’s actions in relation to ground 2, although reflecting an exploitation of that power imbalance on one level, did not involve any personal conduct, and involved contact at a time when she was no longer his patient.
- [42]The response of Ms MB, once she had realised that the respondent was married, on or about the 14th of March, and in response to his very unpleasant texts on that day, was to complain, as was proper.
- [43]The contact was inappropriate and, as I have said, in breach of a number of relevant provisions of the Code.
- [44]I agree that a fair reading of the text exchange does not support any finding of predatory conduct of the kind reflected in some of the other cases involving boundary violations. The Tribunal finds the conduct of the respondent, as reflected in ground 1, is professional misconduct, as defined in section 5(a) or the definition of that term in the National Law. The Tribunal finds that the conduct reflected in ground 2 is professional misconduct as defined in section 5(a) and (b) of the definition, and that the conduct in grounds 1 and 2, when considered cumulatively, satisfies the definition of professional conduct in both limbs (a) and (b) of the definition of professional misconduct in section 5.
Sanction
- [45]The purpose of disciplinary proceedings such as these are protective and not punitive. The principle that informs the jurisdiction of the Tribunal to make orders by way of sanction in proceedings such as these is that the health and safety of the public are paramount.
- [46]The principles set out in the Medical Board of Australia v Jansz [2011] VCAT 1026 have often been quoted and applied in this Tribunal in proceedings of this nature. Relevantly to the circumstances in this particular case, determinations are intended to maintain proper ethical and professional standards in the profession, to protect the public through general deterrence of other practitioners from similar conduct, the need to protect the public and maintain public confidence in the profession by reinforcing high professional standards, including an emphatic indication of disapproval. Also relevant is the extent and nature of the conduct and whether the incident the subject of the criminal conviction was isolated; and the practitioner’s prior disciplinary history, if any. Also relevant is the issue of insight and remorse, namely, whether or not the practitioner understands the error of his ways and has taken steps to address the underlying causes of his professional misconduct.
- [47]Issues such as the likelihood of recidivism can be assessed by evidence of remorse and insight developed by the respondent since his conduct. These factors are also relevant here to the overall protection of the public.
- [48]In my opinion, the level of remorse demonstrated by this respondent is at a high level. This is demonstrated by his cooperation with the criminal proceedings – the Magistrate noted that it was a very early plea of guilty, and his own admission and cooperation with investigators, regulators and in these proceedings.
- [49]His uncontested evidence set out in his affidavit and annexures, is that he has accepted from an early stage that his conduct was unprofessional. He has since completed professional boundary courses and has engaged with a psychologist with a focus on developing more effective decision-making strategies and professional boundaries. He has on multiple occasions expressed his remorse and shame, which I accept is genuine.
- [50]Relevant to the issue of specific deterrence, which in turn feeds into the issue of protection of the public, is that the respondent has suffered significant adverse consequences as a result of his behaviour. He suffered depression and anxiety for a period of years, his family was adversely affected, and he felt deep shame for his conduct. He has not worked as a paramedic since the 29th of March 2019 – just over three years.
- [51]His insight, remorse and prior reputation as a competent paramedic are also relevant to the issue of whether the behaviour is likely to be repeated if he once again becomes registered. I agree with the opinion of his treating psychologist, Mr Mays, that he is unlikely to engage in any similar behaviour in the future.
- [52]In my view, the Board’s contention that a period of disqualification from reapplying for registration for a period of nine to 12 months is not supported by the cases to which it refers and would be punitive.
- [53]In its submission, the Board submits:
49. The Board submits that the failure to comply with the criminal law, prima facie, suggests characteristics, attributes, and ethical standards incompatible with membership in the profession. Accordingly, the Board considers it appropriate Mr Reis be prevented from reapplying for registration as a paramedic for a period of time from the date the Tribunal finally determines this matter.
- [54]The case cited in support of the proposition in the first sentence is Nursing and Midwifery Board of Australia v Seijbel-Chocmingkwan [2015] QCAT 283 at [8] where the Tribunal states:
[8] The Tribunal is in agreement with the parties that the conduct the subject of the criminal convictions is inconsistent with (the respondent) being fit and proper to hold registration in the nursing profession. Whilst the conduct did not occur in the practice of her profession the conduct is incompatible with the characteristics, attributes, and ethical standards required in such profession.
- [55]As can be seen, the comment made by the Tribunal focuses on the conduct in that case. The respondent had been convicted of multiple offences of violence, including attempted murder, for which she had been sentenced to 10 years imprisonment, which carried an automatic declaration of a conviction for a serious violent offence which had the effect that she could not apply for parole until she had served eight years.
- [56]The paragraph does not support the proposition put by the Board. Frankly, reference to a case that involves such egregious violent conduct is not helpful to the Tribunal in this case.
- [57]In my opinion, the most helpful and comparable case is Health Ombudsman v Obet [2020] QCAT 338. The respondent was a registered nurse. He was 45 and the patient was 25. He met her in a professional capacity when she presented at the Emergency Department of a Brisbane hospital with amnesia. She was particularly vulnerable, with a complex medical background including left front craniotomy at the age of 13, epilepsy, borderline personality disorder and post-traumatic stress disorder.
- [58]At the conclusion of the patient’s Emergency Department attendance, the respondent exchanged telephone numbers with the patient and agreed to accept a mobile phone from her for no payment. The relevant records did not reveal any contact between the respondent and the patient in the Emergency Department, but he later admitted that he was involved in taking her vital signs at the time.
- [59]On a number of occasions, the respondent attended the patient’s home, including on or after an internal meeting with his employer during which he was instructed not to contact her. On a number of occasions, from the 17th of August to the 3rd of September, he contacted her via Facebook Messenger. A number of messages contained explicitly sexual content. For example, on 30th of the August he sent her two naked photos of himself including his penis with messages which can only be described as disgusting.
- [60]On the 13th of September, he was interviewed by a staff integrity officer from the hospital. Initially, he denied any misconduct, but then admitted he had lied and wanted to make amends. On the 14th of September, in another interview, he again admitted his misconduct and apologised for his behaviour and offered to apologise to the patient. He had been suspended on full pay on the 11th of September. On the 28th of September, before the investigation had been completed, the respondent resigned. He had not worked as a registered nurse since 2017 due to immediate action taken by the Health Ombudsman, and he did not renew his registration by the 31st of May 2019 and his name was removed from the register on the 2nd of July 2019. The matter was determined in September 2020.
- [61]He had undertaken treatment with a clinical psychologist which included cognitive behaviour therapy. He had six sessions with the psychologist and expressed high levels of remorse and regret for his conduct. In her opinion, that is, the psychologist, he did not represent any foreseeable risk to patients if permitted to return to nursing. In 2017 to 2018, he also completed a number of courses addressing boundary issues and ethics, including online courses with the National Council of State Boards of Nursing. The Tribunal held that his conduct was professional misconduct, he was reprimanded and the parties to pay their own costs.
- [62]The case involving boundary violations is perhaps more serious because the patient in Obet was extremely vulnerable. Of course, Mr Obet did not have the additional ground of the commission of a criminal offence.
- [63]As both parties note in their submissions, a reprimand is not a trivial offence. Relevantly to the need to deter others who might be minded to behave in a similar way, and to ensure the maintenance of public confidence in paramedicine health care providers, a reprimand is a serious form of censure and condemnation.
- [64]In my opinion, this is an appropriate case (coupled with serious consequences to the respondent and the nature of his conduct) to reinforce the need for all health care providers to be particularly alert to the dangers implicit in modern forms of communication.
- [65]On a number of occasions, this Tribunal has adopted a statement made by the Victorian tribunal in Nursing and Midwifery Board of Australia v Ballarto [2020] VCAT 248 at [16-17] to this effect:
This case, and others that are coming before the Tribunal more often, illustrate the need for health practitioners to recognise that text communication with patients requires caution and, where the communication is of a personal nature and/or is conducted using a practitioner’s personal telephone, can readily transgress professional boundaries.
The ease and availability of text messaging, and the casual or familiar style of communication we associate with text messages, can quickly blur the line and mean that professional boundaries have been crossed, almost without noticing. It certainly facilitated the inappropriate conversations between the nurse and the patient.
…in this case. It has also created a record of them. But it is the communication itself that is the problem and constitutes professional misconduct.
Orders
- [66]In the circumstances the findings and orders of the Tribunal are as follows:
- (a)Pursuant section 196(1)(iii) of the Health Practitioner Regulation National Law (Qld), the tribunal finds that the practitioner has behaved in a way that constitutes professional misconduct;
- (b)Pursuant to section 196(2)(a) of the Health Practitioner Regulation National Law (Qld), the Tribunal orders that the respondent be reprimanded;
- (c)Each party must bear their own costs of the proceedings.
- (a)