Health Ombudsman v LNA[2022] QCAT 194

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   On 31 May 2021, the applicant Director referred a health services complaint against the respondent, a registered psychologist, to the Tribunal seeking findings of professional misconduct and orders by way of sanction. The referral contains an allegation of boundary violations with patient A which allegations the respondent admits fully.
2. [2]
   The parties have filed a joint submission, and, in circumstances in which the impugned conduct is admitted, its characterisation as professional misconduct is agreed, and the proposed sanctions are agreed, particularly given the fact that the respondent has been legally represented throughout by lawyers with known competence in this field, the Tribunal, in the exercise of its independent discretion, finds no basis to depart from the proposed agreement reached by the parties.

Background

3. [3]
   The respondent was at all material times and remains registered under the Health Practitioner Regulation National Law (Queensland) (National Law) with the Psychology Board of Australia (the Board). The respondent was first registered as a provisional psychologist with the Board on 1 June 1999.
4. [4]
   She has no prior disciplinary history. On 5 November 2020, the Office of the Health Ombudsman (the OHO) received a mandatory notification from a psychiatrist regarding the respondent’s alleged personal and sexual relationship with a former patient, patient A. On 14 December 2020, the Office commenced an investigation into the respondent’s alleged conduct.
5. [5]
   On 22 December 2020, the Health Ombudsman proposed to take immediate action pursuant to section 58 of the Health Ombudsman Act 2013 (Qld) (the HO Act) by imposing conditions on the respondent’s registration. On 27 January 2021, the respondent through her solicitors provided written submissions accepting the proposed conditions.
6. [6]
   On 12 February 2021, the Health Ombudsman decided to take immediate registration action and imposed conditions on the respondents’ registration. The conditions prohibited the respondent from having contact with male patients and required the respondent to practise only as a registered health practitioner in employment, and at practice locations approved by the regulator.
7. [7]
   On 31 March 2021, following the completion of the investigation, the Health Ombudsman decided to refer the matter to its director, which led to the referral to this Tribunal. On 24 December 2021, the Health Ombudsman decided to revoke the conditions imposed on the respondent’s registration.

The relevant conduct

8. [8]
   The respondent was aged between 42 and 44 years old at the time of the conduct. Patient A was 42 years of age at the time of the conduct and had previously worked in the Australian Army between 1996 and 2007 and was medically discharged from the Army due to a back injury.
9. [9]
   In April/May 2016, patient A attended a military trauma recovery program due to his post-traumatic stress disorder, panic disorder and alcohol abuse issues. Patient A was subsequently referred to the respondent for individual therapy by his doctor.
10. [10]
    On 5 September 2018, the respondent referred patient A to a psychiatrist for treatment. The psychiatrist commenced treatment on 6 September 2018, and on 5 November 2020, patient A disclosed to that psychiatrist the nature of the personal/sexual relationship he had with the respondent.
11. [11]
    Between May 2016 and 10 October 2018, the respondent treated patient A at a clinic. The referral was initially to treat ongoing intrusive and avoidance symptoms of PTSD related to his military service. The respondent provided active treatment by way of prolonged exposure therapy for PTSD and cognitive behaviour therapy for reported panic attacks from the initial consultation on 25 May 2016 through to December 2017.
12. [12]
    During consultations on 18 January 2018 and 1 March 2018, the respondent and patient A set a plan to finish treatment within six months, and set as part of that treatment plan, arrangements for psychological support and broadening social networks around patient A’s volunteer role, and ongoing struggle with social engagement outside the veteran community.
13. [13]
    On 12 May 2018, the respondent and patient A participated in a therapist-assisted exposure exercise whereby they attended New Farm Park for the Park run. The respondent and patient A exchanged general conversation before the run.
14. [14]
    On 30 August 2018, the respondent decided to conduct a further therapist-assisted exposure exercise to address patient A’s fear of experiencing significant anxiety and/or panic-like symptoms when in a social context with people other than his veteran friends, and she exchanged a number of text messages with him in that regard.
15. [15]
    During that session, the respondent attended the clinic for about 20 minutes, and then she and patient A went to a coffee shop downstairs, and patient A monitored his anxiety level, and the respondent inquired about his subjective units of distress scale levels, and the two of them then returned to the clinic to conduct a post-exposure discussion and analysis of the exposure exercise, during which patient A completed a structured written cognitive challenge worksheet.
16. [16]
    In September 2018, the respondent arranged to meet with patient A at the Watt Bar at New Farm, where they acknowledged their mutual personal feelings and which caused the respondent to advise patient A that she could no longer see him in a professional capacity. She had a copy of the APS Code of Ethics to share with him and to assist in his understanding of the seriousness of the matter, and for their equal consideration; she would arrange for a referral to an alternative clinician; and despite the termination of their professional relationship, she was unable to commence a personal relationship with him for a period of two years in accordance with the Code of Ethics.
17. [17]
    Patient A attended his last therapeutic session with the respondent on 20 September 2018. On 2 October 2018, he picked the respondent up near her house and together they went to dinner on the Gold Coast and kissed. On 10 October 2018, patient A attended the respondent at the clinic to collect referral information and provide relapse prevention information, and for him to consent to a discharge letter being written to the referring doctor which formally ended the treating relationship.
18. [18]
    On 11 November 2018, the respondent and patient A commenced a personal and sexual relationship. During that relationship, they went away and stayed together at a number of accommodation venues including Rydges South Park, Bangalow Guesthouse, Spicers Clovelly Estate at Montville, and between 17 November and 19 November 2019 at the respondent’s invitation, the two of them went away to Melbourne and photographs were taken of them both during that trip.
19. [19]
    During their personal and sexual relationship, the respondent and patient A exchanged text messages of a personal nature. The sexual relationship between them ended in about December 2019. The relationship between them changed in early 2020, and they each made attempts to end the relationship. They maintained the non-sexual aspect of their personal relationship until October 2020.
20. [20]
    The respondent was aware that patient A was vulnerable, in that he had underlying mental health vulnerabilities because he was referred to her for psychological therapy including ongoing intrusive avoidance symptoms relating to PTSD from his military service, and that he had received psychological treatment from her for significant mental health conditions during their therapeutic relationship.
21. [21]
    The parties have filed a joint statement of facts and a joint submission, and there are no factual issues in dispute.
22. [22]
    Nevertheless, it is necessary for the Tribunal, pursuant to section 107 of the HO Act, to determine whether the respondent behaved in a way that constitutes either unsatisfactory professional performance, unprofessional conduct or professional misconduct, and the appropriate disciplinary sanctions.

Characterisation

23. [23]
    The applicant submits, and the respondent admits that the conduct amounts to professional misconduct pursuant to the section 5 definition of professional misconduct in the National Law.
24. [24]
    In Psychology Board of Australia v Meulblok (Review and Regulation) [2020] VCAT 579 at [36], the Victorian Tribunal observed that:

…Tribunals across the jurisdictions have consistently recognised a serious departure from professional standards that occurs when the psychologist enters upon a dual relationship with a client to whom they are or have recently been providing therapeutic services, particularly where the relationship is romantic, sexual or intimate. Invariably, that conduct is found to be professional misconduct.

25. [25]
    The Tribunal has no hesitation on the basis of the agreed facts in deciding that the admitted conduct of the respondent fell substantially below the standard reasonably expected from a psychologist having regard to her level of training and experience, and represents a significant failure to maintain the appropriate professional boundaries with a former patient as required in accordance with the Australian Psychological Society’s Code of Ethics. Codes such as that promulgated on behalf of Boards such as the present are admissible in evidence in proceedings such as this in relation to proper professional behaviour by health practitioners.

Sanction

26. [26]
    It is common ground that the main principle for administering the HO Act is that the health and safety of the public is paramount. Indeed, that principle underpins the jurisdiction of this Tribunal to impose orders by way of sanction on health practitioners who have engaged in unethical or inappropriate conduct. The relevant principles are set out in Medical Board of Australia v Jansz [2011] VCAT 1026 and need not be repeated.
27. [27]
    The Tribunal considers (in the circumstances of the particular case) issues such as personal deterrence, general deterrence, proper maintenance of ethical and professional standards, and upholding and protecting the reputation of the profession in the sense of maintaining the stature and integrity of the profession in the eyes of the public.
28. [28]
    The Tribunal also considers issues such as the likelihood of repetition of the relevant conduct, and the degree at which the practitioner has acquired insight into his or her conduct, such as an understanding of the nature of the conduct and an acceptance that the conduct was wrong. The Tribunal also considers the reasons behind the conduct and whether the practitioner has established empathy, insight, and shows appropriate remorse for her behaviour, and a recognition of its consequences.
29. [29]
    The ethical prohibition on sexual relationships between a psychologist and a patient or a former patient reflects the special relationships between psychologists and their patients, and the position of trust they are placed in. In Psychology Board of Australia v Shahinper [2016] QCAT 259 at [69], the Tribunal observed:

The power imbalance by virtue of the therapeutic relationship is always an aggravating circumstance in these cases. The relationship between psychologist and patient is necessarily one involving a high degree of personal exposure on the part of the patient. That fact alone, notwithstanding any particular psychological issues, will place a patient in a position of greater vulnerability than may be the case in other therapeutic relationships. In the circumstances, the sexual relationship was a gross violation of the responsibility and trust placed in … as a psychologist ….

30. [30]
    The applicant submits and the respondent agrees, that patient A was particularly vulnerable. He was referred to her for psychological therapy and treatment for significant mental conditions arising out of his military service. It goes without saying that psychologists treat vulnerable people. It follows that there is an inherent power imbalance in the professional relationship, and clients entrust their minds and their wellbeing to psychologists. In Psychology Board of Australia v IVX (Review and Regulation) [2016] VCAT 35 at [147], the Victorian Tribunal noted:

The clear prohibition on dual relationships reflects the recognised risk that the inherent power imbalance in the professional relationship will distort the personal relationship, with the potential to do very real harm to the client or former client. The more vulnerable the client, the greater the risk of harm.

31. [31]
    On the evidence before the Tribunal, and as agreed by the parties in a joint submission, the respondent has demonstrated a level of insight and remorse in the circumstances of the case. She made admissions to the allegation and admitted that the conduct constitutes professional misconduct. She has cooperated fully with these proceedings. She has participated in the filing of an agreed statement of facts which assists in the expedition of the disciplinary proceedings.
32. [32]
    Between 12 February 2021 and 24 December 2021, she was subject to registration conditions imposed by the Health Ombudsman to which she was compliant. In her submissions to the office during the immediate registration action process, the respondent acknowledged and admitted the personal and sexual relationship with patient A, and recognised the inappropriateness of her conduct as falling below the standards expected of her as a registered psychologist.
33. [33]
    In her affidavit filed in these proceedings, she again acknowledged and took full responsibility for the poor judgment she exercised in acting on feelings and exploring a personal relationship with patient A.
34. [34]
    She has taken steps to rehabilitate in respect of her practice and professional development, including informing her employer of the complaint and the investigation by the Office, commencing supervision with the Clinical Director of Psychology Consultants, and undertaking education on professional boundaries and professional development.
35. [35]
    In this case, given the respondent’s cooperation and recognised insight and remorse, the Tribunal is confident that she does not represent a future risk of behaving in a similar way. Consequently, specific deterrence does not play a major role in the formulation of appropriate sanctions.
36. [36]
    However, for the maintenance of the professional standards, and to assist to uphold public trust and confidence in the profession, general deterrence always looms large as a principle to be applied in cases of this nature.
37. [37]
    The parties submit that while personal deterrence is of less significance having regard to factors such as her insight and remorse and rehabilitation, and evidence of good character, general deterrence is highly relevant in this case. As expressed in Psychology Board of Australia v Garcia (Review and Regulation) [2015] VCAT 128 at [46], as referenced in Health Ombudsman v Pennington [2021] QCAT 334 at [34]:

General deterrence is a more important factor in the case. Psychologists treat vulnerable people. There is an inherent imbalance in the professional relationship. If this is allowed to transfer into a personal relationship, the potential exists for damage to a client. This is why there are rules designed to prevent such occurrences. These rules are fundamental to the regulation of the psychologist/client relationship. The disposition must reflect the Tribunal’s support of this regulation and the requirement to illustrate the failure to meet the standard as disciplinary consequences.

38. [38]
    Given the power imbalance and the vulnerability of the patient in this case, boundary violations and an inappropriate relationship between the respondent  and her former patient falls into a particularly serious category of professional misconduct.
39. [39]
    In Health Ombudsman v Pennington [2021] QCAT 334, the practitioner formed a sexual relationship with the patient who the practitioner had treated at a correctional centre for approximately nine months. The sexual relationship commenced about two weeks after the patient’s release from prison. The inappropriate relationship included the practitioner and the patient living together and establishing a business. The Tribunal did not hesitate to find that the practitioner’s conduct constituted professional misconduct. As the practitioner did not appear at the hearing, and in the absence of any evidence in respect of insight and remorse, the Tribunal reprimanded her, and she was disqualified from applying for registration for a period of 12 months.
40. [40]
    In Psychology Board of Australia v Cook [2014] QCAT 162, the practitioner engaged in sexual relations with a patient on four occasions during the treating relationship. The practitioner made full admissions, had no prior disciplinary issues, and took the initiative to seek training and counselling and supervision. The Tribunal found that the practitioner’s conduct constituted professional misconduct and her registration was suspended for six months, and conditions imposed on her registration upon her return to practise.
41. [41]
    The Tribunal has previously commented that a reprimand is not a trivial penalty, as it is a matter of public record and has the potential for serious adverse implications to a professional person. In Psychology Board of Australia v Brideson (Review and Regulation) [2021] VCAT 899 at [70], which involved boundary violations, the Tribunal stated that a “reprimand does not trivialise a serious lapse of professional standards…” and considered it was appropriate to reprimand the practitioner as the seriousness of the conduct is worthy of censure.
42. [42]
    In this case, the respondent seeks a recommendation from the Tribunal that the Board seriously consider removing the recording of the reprimand against the respondent after a period of two years. The respondent submits that the reprimand remaining would be unduly punitive in all the circumstances, including where:

    1. (a)
       the relationship and boundary violation commenced over three years ago at the present time;
    2. (b)
       there are relevant personal circumstances which led to the conduct;
    3. (c)
       the respondent does not personally represent a risk to the public health system;
    4. (d)
       she does not represent a risk to public health and safety, and the applicant has acknowledged that by the removal of the immediate registration conditions imposed on her registration;
    5. (e)
       there is clear evidence of insight and remorse; and
    6. (f)
       she has taken significant rehabilitative steps.

In the circumstances, the Tribunal makes that recommendation. It is entirely a matter for the Board as to whether it acts upon the recommendation.

43. [43]
    The parties have agreed for an order pursuant to section 107(3)(d) of the HO Act that the respondent’s registration be suspended for a period of six months. The Tribunal should be slow to depart from the parties’ joint position, and should only do so if the Tribunal considers the sanction falls outside the permissible range of sanction for the conduct. The comparable cases referred to above clearly indicate that a sanction which includes a period of suspension of six months clearly falls within the permissible range.

Orders

44. [44]
    The respondent requests, and the applicant does not object for the suspension to start one month after the date of the decision, so as to enable the respondent to put in place continuity of care arrangements for any patients and/or to arrange locum cover for her training workshops and mentoring. In those circumstances, the findings and orders of the Tribunal are as follows:

1. Pursuant to section 107(2)(b)(iii) of the Health Ombudsman Act, the Tribunal decides that the respondent has behaved in a way that constitutes professional misconduct.

2. Pursuant to section 107(3)(a) of the Health Ombudsman Act, the respondent is reprimanded.
3. Pursuant to section 107(3)(d) of the Health Ombudsman Act, the respondents’ registration is suspended for a period of six months commencing one month after today’s date.