Health Ombudsman v Atkinson[2022] QCAT 211

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   This proceeding is concerned with an application by the Health Ombudsman (applicant) seeking certain findings and orders against Glen Patrick Atkinson (respondent).
2. [2]
   The relief sought against the respondent was:

1. 1.
   Pursuant to s 107(2)(b)(iii) of the Health Ombudsman Act 2013 (Qld), the respondent engaged in conduct that constitutes professional misconduct.

1. 2.
   Pursuant to section 107(3)(a) of the Health Ombudsman Act 2013 (Qld), the respondent be reprimanded.

1. 3.
   There be no order as to costs.

3. [3]
   At the hearing the applicant was represented by Mr Templeton. There was no appearance on behalf of the respondent. That was expected because, apart from a number of unpersuasive blanket denials on his behalf, the respondent made it clear on a number of occasions that he had no intention in engaging in the process.
4. [4]
   On 10 May 2022 the Tribunal made the following orders:

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

1. 2.
   Pursuant to section 107(3)(a) of the Health Ombudsman Act 2013 (Qld), the respondent is reprimanded.

1. 3.
   No order as to costs.

5. [5]
   For reasons it is unnecessary to go into to dispose of this matter, on 22 October 2021, the Tribunal made comprehensive non-disclosure orders to protect the identity of the victim of the respondent’s conduct and her family. Those orders remain in place. Hereafter that person will be referred to as the patient.

Background

6. [6]
   At all material times the respondent was a registered nurse practicing at the Pine Rivers Private Hospital when he first came into contact with the patient. She was a patient at the hospital having been admitted for treatment for post-traumatic stress disorder (PTSD) and depression. Having regard to the patient’s medical history, her mental health situation was very fragile she was in a vulnerable state.
7. [7]
   The patient was first admitted to the hospital on 5 July 2013 and, before being discharged on 3 August 2013, she had regular contact with the respondent. In addition to contact at the hospital, between 9 May and 4 June 2017, the respondent contacted the patient on his mobile telephone on no less than 19 occasions. Some of the lengthier calls ranged from 13.26 minutes to 38.51 minutes.
8. [8]
   It is alleged that upon her release from hospital, they were engaged in an intimate relationship which began soon after her release from hospital in August 2013. There was also a “one off” sexual encounter in May/June 2017 after the patient had been re-admitted on 9 May 2017 for treatment for alcohol dependence, general anxiety disorder and depression. The patient was discharged on this occasion on 19 May 2017.
9. [9]
   The patient was again admitted to the hospital in late June or early July 2017. On this occasion there was no contact between them as the respondent was on leave.
10. [10]
    In March 2018, the patient reported what had occurred and following investigation the respondent’s employment was terminated on 27 April 2018. The respondent later surrendered his registration on 4 October 2017.
11. [11]
    It is also alleged against the respondent that on 2 October 2018, he sent the patient an offensive text.

Allegations and Particulars

12. [12]
    The three allegations made against the respondent were particularised in the amended application filed on 14 May 2021 as follows:^[1]

Allegation 1 - boundary violation

1. 1.
   For approximately twelve months from approximately 5 July 2013, the respondent breached professional boundaries by engaging in an inappropriate personal and intimate relationship with BN (the patient).

Particulars:

1.1On 5 July 2013, the patient was admitted to Pine Rivers Private Hospital for treatment of Post­ Traumatic Stress Disorder and Depression.

1.2The patient had relocated from Victoria to Queensland for family support medical treatment. At the time the patient did not know anyone in Queensland other than her family.

1.3The patient was a vulnerable mental health patient.

1.4The respondent provided care to the patient during her admission.

1.5The respondent spent time in the patient's room chatting during which he shared personal information with the patient.

1.6Approximately two weeks prior to discharge, the patient provided her mobile phone number to the respondent.

1.7On 3-August 2013, the patient was discharged from care and moved to her sister's residence in Geebung.

1.8On or around 5 August 2013 the respondent contacted the patient by telephone and made arrangements to collect her from the residence to go out for coffee.

1.9The respondent collected the patient from her residence and took her to Taigum Shopping Centre for coffee.

1.10 After this initial meeting, the patient started spending time at the respondent's residence. The respondent and the patient had a personal and intimate relationship during which:

2. 1.10.1
   They regularly had dinner together and imbibed at the respondent's residence;

2. 1.10.2
   The patient regularly spent the night at the respondent's home and had sexual intercourse  with the respondent;

2. 1.10.3
   They spent a day fishing at Bribie Island;

2. 1.10.4
   Went away together for a weekend at Caloundra;

2. 1.10.5
   They travelled to Sydney together for a wedding for a member of the respondent's family; and

2. 1.10.6
   Attended a funeral in Brisbane together.

Allegation 2 - further boundary violation

1. 2.
   Between approximately 11 May 2017 and approximately the end of June 2017 the respondent breached professional boundaries by engaging in an intimate relationship with BN.

Particulars

2.1On 9 May 2017, BN was readmitted to Pine Rivers Private Hospital where she was treated for Alcohol Dependence, General Anxiety Disorder and Depression.

2.2The patient was a vulnerable mental health patient.

2.3The respondent provided care to the patient during her admission.

2.4The patient again provided her mobile telephone number to the respondent.

2.5The respondent began contacting her by phone whilst she was still admitted at the Pine Rivers Private Hospital and they re-established an intimate personal relationship which continued after the patient's discharge from Pine Rivers Private Hospital on 19 May 2017;.

2.5.1The patient stayed at the respondent's house three or four times and they engaged in sexual intercourse on one occasion.

2.5.2The respondent and the patient also had lunch at Woody Point.

2.6The relationship was short lived and ended not long after the lunch at Woody Point.

…

Allegation 4 - Sending offensive and/or inappropriate communication

1. 4.
   On 2 October 2019 after the Office of the Health Ombudsman had commenced an investigation into the respondent and taken Immediate Registration Action under the HO Act, the respondent sent the patient an offensive text message.

Particulars

4.1On 3 April 2018 the Office of the Health Ombudsman received a notification from Ms Michelle Buckley regarding the respondents conduct. Shortly afterwards the Office of the Health Ombudsman commenced an investigation into the conduct of the respondent and initiated Immediate Registration Action.

13. [13]
    Under the heading “General allegations” the conduct was summarised as follows:

In respect of allegations 1, 2 and 4 below, the applicant alleges that:

1. the respondent engaged in professional misconduct within the meaning of section 5 of the Health Practitioner Regulation National Law (Queensland) (National Law), in that he engaged in unprofessional conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience, and/or engaged in conduct that it is inconsistent with the respondent being a fit and proper person to hold registration.

Or in the alternative,

2. the respondent engaged in unprofessional conduct within the meaning of section 5 of the National Law in that he engaged in professional conduct of a lesser standard than that which might reasonably be expected of a health practitioner by the public or the respondent’s professional peers.

In the further alternative, in respect of all the allegations 1, 2 and 4 below, the respondent engaged in professional misconduct within the meaning of section 5 of the National Law in that there is more than one instance of unprofessional conduct which, when considered together, amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training and experience.

14. [14]
    There is no need to consider the alternative case raised to dispose of this matter.
15. [15]
    In the respondent’s response to those allegations he said “I admit to a number of mobile phone calls between the two parties all other allegations I deny”.

The evidence against the respondent

16. [16]
    The patient did not give evidence at the hearing and there was no sworn or affirmed evidence placed before the Tribunal. However, relying on section 92 of the Evidence Act 1997 and, in particular, s 28 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act), the applicant relied on a signed but unsworn statement of the patient.
17. [17]
    Before proceeding further, it is uncontroversial that given the seriousness of the allegations and their consequences, the standard of proof required for the Tribunal to be satisfied that the allegations are in fact made out is in accordance with the principles enunciated in Briginshaw v Briginshaw.^[2] In Health Ombudsman v Arora,^[3] it was observed that allegations should not be sought to be established relying on inexact proof, indefinite testimony or indirect references.
18. [18]
    Section 28 of the QCAT Act permits a wide discretion in respect of the admission of evidence and the manner in which it may inform itself about the matters before it. That said, it must always be borne in mind that the rules of natural justice and procedural fairness are applied.^[4] That is particularly so in cases where the allegations and consequences are serious.
19. [19]
    It is unnecessary to dwell on section 28 of the QCAT Act or section 92 of the Evidence Act in any detail. For the reasons set out below, the Tribunal is more than satisfied that the patient’s statement is a true and accurate account of what occurred between her and the respondent and, accordingly, ought to be admitted into evidence.
20. [20]
    That is so for a number of reasons. First, the statement was initialled at the bottom of each page of her statement by the patient and was signed and dated by her on the last page under the acknowledgment that: “this written statement by me dated 6 July 2018 and contained in the pages numbered 1 to 14 are true to the best of my knowledge and belief and….”
21. [21]
    Second, it is sufficiently clear that the patient intended to provide an affirmed version of her statement. In this regard the Tribunal would note the following. The patient advised the office of the Health Ombudsman that she would affirm rather than swear to an affidavit containing her statement. However, numerous attempts to achieve this outcome failed. The evidence makes it sufficiently clear that it was much more likely than not that that was because of the patients on-going mental health issues.
22. [22]
    Third, the patient’s statement is consistent with her record of interview notwithstanding the somewhat rambling nature of both.
23. [23]
    Fourth, a number of the factual matters set out in the patient’s statement are corroborated by other evidence including a number of admissions made by the respondent in his record of interview.
24. [24]
    This corroborative evidence includes. First, the respondent admitting he made a number of phone calls to the patient after she was discharged from hospital. That is, after August 2013 and after May 2017.
25. [25]
    Second, the patient produced a computer generated diagram from her recollection of the layout of the respondent’s house. That diagram was consistent in many respects with a drawing done by the respondent and, when shown the patient’s diagram, the respondent acknowledged it as being a very good representation of his house. In this regard, is the light of other evidence, the respondent’s suggestion that she might have entered his house without permission can be readily rejected.
26. [26]
    Third, the patient’s diagram sits comfortably with other evidence, in particular the location of the respondent’s son’s bedroom.
27. [27]
    Fourth, in respect of the respondent’s son Joshua, not only did the patient know his name and where he slept, she was also able to give a description of his car which was also accepted by the respondent.
28. [28]
    Fifth, the patient had clearly been inside the respondent’s car. She was able to give a description of it in terms which were consistent with its description given by the respondent. This evidence by the patient went so far as to describe how the respondent disposed of his cigarette butts when he smoked in his car. When asked about this topic in his record of interview, the respondent described how he disposed of cigarette butts in his car in a way consistent with the patient’s version.
29. [29]
    Sixth, the patient’s statement about a young girl staying with the respondent having an unusual name and the description of that girls school uniform is generally consistent with the respondent’s own statements in his record of interview. The patient stated that the girls name was “Yukata or Jackata, it’s a name I’ve never heard before”. In his record of interview the respondent confirmed that a girl was staying with him to finish her high school and said her name was Jaysha. In respect of the girl’s uniform, the patient described it as being “her uniform was a green jumper and a brown and white or green and white checked dress”. When asked, the respondent described her uniform as being green.
30. [30]
    Finally on this topic, the evidence on the patient in respect of the offensive email is convincing. At 11.41pm on 2 October 2019 the patient received a text which read “Hello BN you are just like the wine you so enjoy a Squealing Pig!”.
31. [31]
    The respondent denied sending that message but had no explanation when it was pointed out that it came from his phone, other than to say that he did not know how that could have occurred.
32. [32]
    The respondent’s blatant denial, if not already fanciful enough, is made all the more so having regard to the patient’s evidence about the wine she would drink on occasion with the respondent. Her evidence was that on occasions she and the respondent would drink New Zealand produced wine called “Squealing Pig”. Bearing in mind that the text came from the respondent’s phone, the only inference left reasonably open, is that he and the patient had consumed that particular wine together on a sufficient number of occasions with him to remember its name.
33. [33]
    On the evidence before it, the Tribunal is sufficiently satisfied that the evidence of the patient should be accepted and that that evidence proves the three allegations made against the respondent.
34. [34]
    That is, the conduct involved the respondent having an inappropriate intimate relationship with the patient on her discharge from hospital in August 2013 and May 2017. In respect of the conduct in 2017, the Tribunal proceeds on the basis that it involved a very brief relationship and only one sexual encounter. The allegation in respect of the offensive text message is also proved.

Sanction

35. [35]
    There can be no doubt that the respondent’s conduct involving a woman with serious mental health issues was conduct which fell well below the standard that might reasonably be expected by the public and his peers. It involved, in respect of the elements of the first allegation, numerous violations of the professional boundaries expected between a professional nurse and his patient.^[5] It is conduct discreditable to the nursing profession and is aggravated by the respondent’s later conduct in 2017 including the sending of the offensive email.
36. [36]
    The Tribunal is also of the opinion, subject conduct is sufficiently serious to warrant a finding of professional misconduct rather than unprofessional conduct. The Tribunal is also of the opinion that a reprimand is warranted. In reaching these conclusions the Tribunal has also taken into account the respondent’s clear lack of insight and remorse.
37. [37]
    Having regard to the nature and extent of the respondent’s conduct. A suspension from registration might also be warranted. However, in this instance the applicant is not seeking any such order. The reasons for that are set out in the written submissions of Mr Templeton:^[6]

Conduct of the kind in which the applicant engaged would ordinarily result in a suspension of registration: see Health Ombudsman v Gascard [2020] QCAT 264 at [9], Health Ombudsman v Rissanen [2020] QCAT 96 at [18] and Health Ombudsman v Hastie [2021] QCAT 59.

However, it is highly relevant in the present case that the respondent’s employment was terminated on 27 April 2018, and there is no evidence to suggest he has practised since that date. He surrendered his registration on 4 October 2018. Consequently, by the time the Tribunal delivers its decision, he will have been without registration for perhaps 3.5 years and not practising for nearly 4. These circumstances distinguish the present case from the circumstances in Hastie where the respondent retained unconditional registration and could not be regarded as having suffered any preclusion from or restriction on her practice (see [51]).

Given the already lengthy period that the respondent has been absent from practice, and despite his lack of cooperation and consequent lack of insight and remorse, the applicant submits that no further period of preclusion from practice is warranted. However, a reprimand, together with the finding of professional misconduct, will amount to a public denunciation of the respondent’s conduct. A reprimand is not a trivial sanction.

38. [38]
    The Tribunal respectfully accepts those submissions.

Orders

39. [39]
    For the reasons given, the finding and orders of the Tribunal are:

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

1. 2.
   Pursuant to section 107(3)(a) of the Health Ombudsman Act 2013 (Qld), the respondent is reprimanded.

1. 3.
   No order as to costs.