Health Ombudsman v Vincent[2022] QCAT 162

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   The respondent is a registered physiotherapist. He is presently employed as a physiotherapist at a practice in Brisbane. He is 45 years of age, and was first registered with the Physiotherapy Board of Australia (the Board) in 2004. He holds tertiary qualifications in physiotherapy and exercise science from Griffith University. His registration is presently subject to mentoring conditions imposed by the Health Ombudsman on 3 June 2020.
2. [2]
   The Director of Proceedings on behalf of the Health Ombudsman (the applicant) referred a health service complaint to the Tribunal on 31 May 2021. The complaint contains 3 allegations; the first two relate to boundary violations of a sexual and inappropriate nature with patient A, and the third relates to a boundary violation of an inappropriate and sexual nature with a former patient, patient B. The applicant seeks a finding that the respondent has behaved in a way that constituted professional misconduct, and seeks orders under the Health Ombudsman Act 2013 (Qld) (the HO Act), by way of sanction, including a reprimand, registration conditions, and a period of suspension of between nine and 12 months.
3. [3]
   In the respondent’s submission filed on 14 December 2021, when he was legally represented, he admits the “key facts” in each allegation in the referral; and agrees that his conduct amounts to professional misconduct. He agrees that a reprimand should be ordered by way of sanction, and that his registration should be suspended. In that submission, when he was legally represented, he was contending for a suspension period of between two and four months. Yesterday, the Tribunal was advised that he was no longer legally represented and was appearing for himself. Subsequently, the parties also informed the Tribunal that agreement had been reached in relation to sanction. Each party has provided an email to that effect, and I will refer to that later in these reasons.
4. [4]
   The applicant no longer seeks conditions related to professional ethics and boundary violations be placed on the registration of the respondent after a period of suspension.  This was the position of the respondent when he was legally represented, on the basis that for the last two years he had met with a mentor on a monthly basis and had worked as a physiotherapist for that two-year period without any gender conditions and without any further complaints. He has also successfully completed an online training module in safe professional boundaries, with Davaar consulting.
5. [5]
   The parties have filed an agreed statement of facts. In three relatively minor respects, the respondent disputes or does not admit some facts. The applicant submits that the facts make no difference to the gravamen of the allegations, and, in its submission, the seriousness of the conduct, the subject of the referral, and I agree with that submission.

The relevant conduct

6. [6]
   In respect of allegation 1, relating to patient A who, at the present time is 33 years of age; between July 2015 and July 2017, the respondent treated her for back pain at a physiotherapy practice in Brisbane. He would treat her both in treatment rooms and at the hydrotherapy pool at the centre. During the treating relationship period, the respondent knew, or at least, reasonably ought to have known, that patient A was a single mother and was a victim of domestic violence.
7. [7]
   During this treating relationship period, the respondent maintained inappropriate boundaries with patient A, in that in or about late 2016, at the treatment room and/or showers, after the hydrotherapy pool sessions at the centre, the respondent and patient A engaged in oral sex. Similar conduct occurred in or about late 2016 or early 2017, and in or about mid-2017, at the treatment room and/or showers after the hydrotherapy pool sessions at the centre, the respondent and patient engaged in oral sex. Also, during this period, the respondent and patient A communicated via Facebook Messenger and text messages, including sending each other sexually explicit messages.
8. [8]
   The respondent submits that during this period of approximately two years, when the respondent was treating patient A, and having an inappropriate sexual relationship with her, he was suffering from “heightened levels of stress, poor self-esteem and shame due to the disturbing breakdown of his marriage”. This he relates to what he describes in his affidavit filed with the Tribunal, as the disturbing circumstances under which his marriage broke down.
9. [9]
   In support of this submission, the respondent does not point to any specialist care he had or even sought during this period, rather he relies on the statement of his close friend, Dr Damien Finniss, who trained as a physiotherapist with him, but who is now a consultant anaesthetist and pain specialist.
10. [10]
    The respondent swears that the breakdown of his marriage, which he said was in 2013, related to his wife’s conduct during that year in another country. In her statement to the Office of the Health Ombudsman (OHO), his former wife does not mention the incident described in the respondent’s affidavit but refers to them separating entirely in February 2018 after things had not been going well “for a while”. Dr Finniss alludes to this issue in his statement, but states:

It became evident to me many years ago that there were stressors in Matthew’s marriage. These stressors increased slowly and over a long period of time, as he and then wife each focussed on providing for the family, often perhaps at the expense of their relationship. The situation was to become far more complex toward the end of the marriage. It is not my place to describe the issues, but for completeness of context and of Matthew’s character, I feel it relevant to make some overarching remarks.^[1]

11. [11]
    In his submission, the respondent refers (I infer, as explaining his admitted unethical behaviour) to what he said in his lawyer’s submissions to the OHO, to the effect that it was patient A who had behaved in a sexualised way towards him during the therapeutic relationship. My overall impression, based on all of the relevant material,  including that dealing with allegation 2, is that patient A did have a sexual interest in the respondent as he had in her, and she was interested in a long-term relationship with him, whereas he was not.
12. [12]
    The difficulty I have with this type of submission is that, in my opinion, it demonstrates that even at the date of the submission (December 2021), and after completing the course on ethics and boundaries, the respondent still did not appear to appreciate that the Physiotherapy Board of Australia’s Code of Conduct (the Code of Conduct), in particular, clause 3.2, which he admits he breached, talks about “recognising that there is a power imbalance in the practitioner-patient relationship”. This is why the Code states what should be obvious, that he should not have exploited that relationship by engaging in a sexual relationship with the patient. This is relevant to the respondent’s present insight, and the quality of his remorse. On the basis of all the material before the Tribunal, I do not accept that there is any connection between the breakdown of the marriage and the respondent’s behaviour, to which he admits in relation to allegations 1 and 2.
13. [13]
    Allegation 2 relates to a personal relationship that persisted for about six months in or about July 2019, in the context in which the therapeutic relationship with Patient A ended in July or August 2017. During that period, the respondent attended patient A’s residence where she lived alone with her young son, and patient A would also attend his personal residence. She and her son spent Christmas with the respondent’s family in December 2019, and he knew, or at least reasonably ought to have known, that patient A was particularly vulnerable because of the matters referred to earlier. During this period, the respondent was told by patient A that she had inherited a significant sum of money, and she expressed a desire to purchase a property with him.
14. [14]
    In the respondent’s response to the applicant’s summary of the factual basis to allegation 2, despite agreeing with it, he disputes that their relationship of approximately six months from July 2019, was a romantic relationship; rather he says it was one of friendship.
15. [15]
    To some extent that can be accepted, as can the submission that patient A wanted to pursue a romantic relationship with him, and he did not want to pursue such a relationship with her. However, this submission ignores the relevant facts in the agreed statement of facts, which emanate from his own self-notification to the OHO on 3 March 2020, and that is that he and patient A had consensual intercourse on six occasions during that period. He also accepts that at all times he knew she was a single mother and a victim of domestic violence, as can be seen from extracts of text messages between them annexed to the agreed statement of facts. He also admits that during the six-month period, he knew, or at least reasonably have known, that she was vulnerable. He also knew that she had inherited a significant sum of money and that she had expressed a desire to purchase a property for him. There can be no doubt (from the content of patient A’s emails to the respondent’s employer on 12 February 2020 and 22 February 2020) that patient A at times exaggerated and embellished the nature of the relationship with the respondent, but again, this approach, in the context of his admission that his conduct in relation to Patient A amounts to professional misconduct and unethical behaviour, suggests a lack of insight and remorse because he was the registered healthcare provider, subject to the Code of Conduct, and she was his former patient.
16. [16]
    Allegation 3 relates to another patient, patient B. On or about 7 July 2018 during the first consultation with patient B, the respondent talked to her about his relationship status and family life and asked her if he could take her phone number from her patient file for personal correspondence, to which she agreed.
17. [17]
    On 9 July 2018, the respondent contacted the Australian Physiotherapy Association, and he was told he was able to meet socially with patient B so long as he stopped treating her immediately and made a note of the interaction in his treatment notes. He did not treat her again after the first consultation, and the treating relationship ended on that day. On or about 14 July 2018, i.e., only seven days after the treating relationship ended, he contacted patient B and the pair arranged to meet socially. Between that date and July 2019, he engaged in a personal and consensual sexual relationship with patient B, during which time he introduced her to his family, including his ex-wife and children.
18. [18]
    While accepting the summary of the factual basis for allegation 3, the respondent refers to statements made by patient B which have not been led against him. He correctly refers to his contact with the Australian Physiotherapy Association on 9 July 2018. This obviously was two days after his consultation with patient B. As set out in the agreed facts, the respondent commenced a personal and consensual relationship with her on 14 July 2018.
19. [19]
    Dr Finniss says in his statement, that when he was practising as a physiotherapist, he served as the APA New South Wales President and Chair of the APA New South Wales Professional Standards Panel. Clearly, he was no longer involved with the APA in 2018, however, in his statement, which is annexed to the respondent’s Tribunal affidavit, filed on 4 November 2021, he states as follows:

Matthew did, however, contact me (in approximately 2018), asking for advice (as a friend) with respect to his desire to seek a romantic relationship with a different female who was previously a patient. He had appropriately ceased a brief therapeutic relationship, ensured a period with no contact prior to subsequently meeting with and commencing a relationship with that female. Matthew also had contacted the APA at the time. I remember being struck by the level of insight Matthew demonstrated, and he held himself to strict processes in transitioning the relationship in a way commensurate with what I believe would be reasonable, given my background knowledge and involvement with such issues.

20. [20]
    As I read that part of the statement, Dr Finniss is saying that the respondent contacted him after the relationship with patient B had commenced. It is not clear what advice Dr Finniss gave him, however, he was clearly impressed with the respondent’s approach. In my opinion, there can be no basis for the respondent saying that he had, “a short period with no contact period prior to subsequently meeting with and commencing a relationship with patient B”.
21. [21]
    Nevertheless, at a later date, and after the initial notification to OHO in February 2020, pending his own notification in March 2020, the respondent admitted the year-long relationship with patient B, but did not say that it was inappropriate. By the time of the filing of the agreed statement of facts on 6 September 2021, he was accepting that his conduct and behaviour breached 3.2(g) of the Code of Conduct (power imbalance) and 8.2(c) of the Code of Conduct which states (under the heading Professional Boundaries) (in part):

Good Practice Involves:

3. (c)
   recognising that sexual and other personal relationships with people who have previously been a practitioner’s patient or client are usually inappropriate…

22. [22]
    In the respondent’s submission, he accepts his conduct with patient B was inappropriate. In my opinion, consistently with his approach to allegations 1 and 2, the respondent’s submissions in relation to allegation 3 have the flavour of shifting responsibility to others, e.g., patient B, and the APA, when the responsibility for his conduct was entirely his.

Characterisation of Conduct

23. [23]
    It is for the applicant to prove that the admitted conduct relating to allegations 1 to 3 constitutes professional misconduct. The respondent accepts this conduct amounts to professional misconduct. His admitted breaches of the Code referred to earlier are very relevant to characterisation.
24. [24]
    Clearly, the maintaining of a sexual relationship with patient A while still in a therapeutic relationship with her is unprofessional conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training and experience. His conduct is more serious because he re-established an inappropriate relationship with patient A after he ended the therapeutic relationship, when he should have realised that because of her personal circumstances, a single mother and a victim of past domestic violence, she was vulnerable.
25. [25]
    He commenced the inappropriate relationship with patient A, at or around the same time as the inappropriate sexual relationship with patient B ended. His conduct in relation to all three allegations is unprofessional and unethical. When considered together, the Tribunal has no hesitation in being satisfied that the respondent has behaved in a manner that constitutes professional misconduct.

Sanction

26. [26]
    The purpose of disciplinary proceedings such as these is to protect the public, not to punish the practitioner. As has been noted in many previous decisions, often citing Craig v Medical Board of South Australia (2001) 79 SASR 545 at [553] – [555], the imposition of disciplinary sanction may serve one or all of the following purposes, depending on the circumstances of the individual case:

    1. (a)
       preventing practitioners who are unfit to practise from practising;
    2. (b)
       securing maintenance of professional standards;
    3. (c)
       assuring members of the public and the profession that appropriate standards are being maintained and that professional misconduct will not be tolerated;
    4. (d)
       bringing home to the practitioner the seriousness of their conduct;
    5. (e)
       deterring the practitioner from any future departures from appropriate standards;
    6. (f)
       deterring other members of the profession who might be minded to act in a similar way; and
    7. (g)
       imposing restrictions on the practitioner’s right to practise so as to ensure the public is protected.
27. [27]
    The primary principle that underlines and informs the Tribunal’s power to sanction healthcare providers who engage in unprofessional conduct or professional misconduct is that the health and safety of the public is paramount.
28. [28]
    The respondent’s conduct is contrary to the Code of Conduct. Any sexual activity with a patient, including consensual activity and activity initiated by the patient, is a serious departure from professional standards. Such boundary violations have the potential to cause harm for vulnerable patients, and place patients and former patients at a risk of exploitation because of the inherent power imbalance in the physiotherapist/patient relationship.
29. [29]
    Tribunals and equivalent bodies in other States have made such observations, particularly in relation to physiotherapists. In this regard, I refer to Physiotherapists Registration Board of Western Australia v Lipscombe [2005] WASAT 314; and Physiotherapy Board of Australia v Daly [2020] SACAT 45 (Daly).
30. [30]
    The aggravating features of the respondent’s conduct here can be summarised as follows:

    1. (a)
       engaging in sexual acts with patient A in the treatment room and/or showers after hydrotherapy sessions involved a serious breach of trust. It involved a breach of the patient’s trust, despite her consent, of other patients who may have been in the vicinity, his employer, and his profession;
    2. (b)
       the subsequent inappropriate relationship with patient A, a vulnerable person, was serious misconduct, which occurred immediately after the end of his inappropriate relationship with patient B;
    3. (c)
       I agree with the applicant that the only inference that can be drawn from the respondent’s actions in relation to B, i.e., talking to her at that first and only consultation about his relationship status and family life, and asking her if he could access her phone number from her patient file which she agreed, contacting APA two days later, and then contacting her seven days later on 14 July, and from then, for about a year, engaging in a consensual personal relationship with her, is that he had sexual interest in her from the start and ended the therapeutic relationship for pursuing that interest which he did; and
    4. (d)
       engaging in an inappropriate relationship of a sexual nature with two patients, or ex-patients.
31. [31]
    The respondent has demonstrated insight and remorse by making admissions in relation to allegations 1 and 2 in his self-notification in March 2020; his agreement to a statement of agreed facts; and the various submissions made during the investigation by the regulator.
32. [32]
    As referred to earlier, he has also undertaken a course in boundary violations and ethics online, and his mentor expresses his opinion that the respondent has developed insight. I agree that he is unlikely to engage in similar conduct again because of the severe consequences to him. That is, loss of employment for four months, the shame and stress of this disciplinary process itself, and the sanction which will be imposed today which will have significant adverse effects on him. He has also cooperated with these proceedings. However, in the opinion of the Tribunal, a final conclusion as to the extent of his insight and remorse is guarded for the reasons expressed above.
33. [33]
    As indicated before, in his affidavit filed as late as 4 November 2021, he says things about the causes of the breakup of his marriage and, at the same time, he exhibits to his affidavit a very supportive letter from his ex-wife. I have to say that it is concerning that in paragraphs 3 to 9 of his affidavit he would such things about a woman who is now a strong supporter and with whom he has an amicable relationship.
34. [34]
    It is concerning because, to the Tribunal, it suggests, yet again, a theme of blame shifting, on a topic that really has no or very little relevance to the issues before the Tribunal and his unprofessional conduct.
35. [35]
    I agree with the applicant that, for the reasons expressed above, the respondent still demonstrates some lack of understanding about the seriousness of his conduct to female patients or ex-patients. As was stated in Daly (at [30]), the gravamen of the respondent’s conduct here is that he engaged in a sexual relationship with a patient and another patient who, the Tribunal was satisfied, he developed a sexual interest in during their first and only consultation, and this was conduct that had the potential to damage the standing of the profession in the mind of the public.
36. [36]
    I do not agree with the applicant that the respondent now presents as an ongoing risk of repeating his unethical conduct. As well as the factors mentioned above, he has worked now for almost two years without any gender conditions and without further complaint, and his personal life seems to have stabilised. I agree with the respondent that specific deterrence is not of great significance in this case.
37. [37]
    General deterrence however is of much more significance in this case because of the respondent’s unprofessional and/or unethical conduct in relation to two patients or ex-patients. A sanction that sends a message to other members of the profession that such behaviour is unethical and will be met by a firm disciplinary response is important to deter others who, like the respondent, may be tempted to engage in this type of behaviour.
38. [38]
    The paucity of Tribunal decisions involving physiotherapists suggests that it is not a significant problem in this profession; however, the need for practitioners to understand and abide by the Code of Conduct can be emphasised through the sanction process.
39. [39]
    In the matter of Daly, a physiotherapist engaged in a close personal and sexual relationship with a patient while working at a private physiotherapy clinic. The relationship lasted approximately four months. The Tribunal found that the conduct constituted serious professional misconduct which the practitioner admitted. She was reprimanded, her registration was suspended for a period of three months, and conditions were imposed on her registration for 12 months.
40. [40]
    In Physiotherapy Board of Australia v Browning [2014] QCAT 509, the practitioner physiotherapist engaged in a sexual relationship with a patient, in circumstances where the patient was a current patient. The professional relationship ended approximately 24 days after the sexual relationship commenced. The admitted sexual relationship commenced in December 2009 and continued until February 2011, a period of 14 months, the last four months of which involved cohabitation at the practitioner’s house. The Tribunal found that the conduct constituted professional misconduct. The practitioner was reprimanded, her registration was suspended for a period of two months, and conditions were imposed on her registration relating to boundary management issues and mentoring, and she was ordered to pay the Board’s costs, and she was suspended for a further 6 months.
41. [41]
    Physiotherapist Board of Western Australia v Lipscombe [2005] WASAT 314 involved a physiotherapist who engaged in sexual intercourse with a patient at his home, while she was his patient. The practitioner treated the patient on 28 January and then on 5 February 2005. The sexual intercourse occurred during the first treatment on 28 January 2005, when the patient returned to complete treatment that had commenced earlier in the day. The practitioner had treated the patient’s son since 2001, and the patient, by her own admission, was a willing participant and had strong feelings for the practitioner for a considerable time. The Tribunal found that the practitioner engaged in professional misconduct, and he was suspended for a period of four months.
42. [42]
    In the Tribunal’s view, the conduct the subject of all of those previous decisions is not as serious as the conduct here, particularly the fact that the respondent’s unethical and unprofessional conduct involved two patients, and his sexual relationship with patient A extended over a longer period. In those circumstances, the proposed orders by the parties are appropriate. The Tribunal should not depart from agreed orders by way of sanction unless the orders proposed do not sit within the appropriate range that the Tribunal feels is appropriate to respond to the relevant proved unprofessional conduct. The Tribunal is satisfied that the agreed orders by way of sanction are appropriate in this case.

Orders

43. [43]
    The Tribunal orders that:

1. Pursuant to section 107(2)(b)(iii) of the Health Ombudsman Act 2013 (Qld), in respect of allegations 1, 2 and 3, the respondent has behaved in a way that constitutes professional misconduct;

2. Pursuant to section 107(3)(a) of the Health Ombudsman Act 2013 (Qld), the respondent is reprimanded;
3. Pursuant to section 107(3)(b) of the Health Ombudsman Act 2013 (Qld), the respondent’s registration is suspended for a period of nine months;
4. Pursuant to section 62(2)(a)(ii) of the Health Ombudsman Act 2013 (Qld), the immediate registration action made on the respondent’s registration on 3 June 2020 be set aside; and
5. Each party must bear their own costs in the proceeding.