Health Ombudsman v Nixon[2022] QCAT 299

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

Introduction

1. [1]
   Dr David Nixon (the respondent) first met the complaint (CE) on 14 January 2013. He was then working as a general practitioner at a practice, “GMC”. He is an experienced doctor. He obtained his medical qualifications in New Zealand in 1992, was registered as a medical practitioner in Victoria in 1994, and in Queensland on 14 September 2009.
2. [2]
   He was registered as an Australian medical practitioner on 1 July 2010. On 15 October 2009 he became a fellow of the Royal Australian College of General Practitioners.
3. [3]
   CE consulted the respondent for the first time on 14 January 2013, in tragic circumstances in which her husband had died in a motor vehicle accident the previous day. She was a qualified health practitioner, but not working as such in January 2013. She had a business which had been operated substantially by her with her husband to which reference will be made later in these reasons. She had four dependent children then aged between 11 and 17 years of age. It is admitted that at that time she was a vulnerable person.^[1]
4. [4]
   The respondent was her doctor from that day until 11 May 2015. She later transferred to another doctor in the GMC. The motivation for this is in dispute, and will be discussed later in these reasons.
5. [5]
   On or about 14 March 2016, the respondent’s wife texted CE, ^[2] advising her (inter-alia), “…my husband finally admitted to your inappropriate relationship…please stay away from my husband and my family.”
6. [6]
   CE had further personal contact with the respondent in April 2016, to which reference will be made later in these reasons, but effectively they had no further personal contact after that.
7. [7]
   CE did not immediately complain to any Regulator. It is apparent that her mental health declined and that she suffered a number of bouts of depression that resulted in two admissions to the New Farm clinic in 2018.^[3]
8. [8]
   In mid-2017, while consulting another general practitioner over her reaction to a prescribed antidepressant, that general practitioner referred her to a psychiatrist “to whom I’ve been able to share the entire story of what happened.”^[4] This led to a mandatory notification to the Office of the Health Ombudsman (OHO), and thereafter CE has cooperated with that office.

The Disciplinary Referral

9. [9]
   It is not clear from the material contained in the hearing brief, when the referral was first made to the Tribunal. The applicant relies on an affidavit of Richard Gray,^[5] an authorised investigator under the Health Ombudsman Act 2013 (HO Act). He was not required for cross-examination. The mandatory complaint from the psychiatrist was received by the OHO on 29 September 2017, and CE made a complaint on 9 October 2017.
10. [10]
    Another investigator, Danielle Williams, was assigned the investigation of the complaint and interviewed the respondent on 18 May 2018.^[6]
11. [11]
    It can be inferred that proceedings were commenced prior to 8 October 2021, when the applicant filed a Further Amended Application for a referral of the disciplinary proceeding in the Tribunal (FAR). The respondent filed an Amended response on 11 November 2021 and the hearing proceeded on 6 December 2021 on the basis of these “pleadings”.
12. [12]
    The FAR alleges that the respondent, as CE’s former doctor, engaged in professional misconduct by failing to maintain professional boundaries with CE.
13. [13]
    In his written opening, filed on 9 November 2021, Mr Templeton of Counsel, on behalf of the applicant, succinctly summarises the nature of the dispute as at the start of the hearing:

3. (The respondent) was (CE’s) doctor from January 2013 to May 2015. The primary issue in dispute concerns the nature and intensity of the relationship between (them). The applicant alleges that between January 2016 and April 2016, the parties had a personal relationship which was a physical relationship that involved kissing and hugging. The relationship had a romantic intensity, and sex was contemplated, but did not eventuate. (The respondent) admits that there was a “personal relationship”, but says this was a “friendship” without sex or any sexual relations. He disputes that there was a “physical relationship”, or that the parties’ meetings in February – March 2016 involved an “emotional connection”. Further, (the respondent) disputes that his conduct was inappropriate, a breach of the Code of Practice, or the Guidelines, and he denies that his conduct amounts to professional misconduct.

4. A subsidiary dispute concerns the vulnerability of (CE). The applicant alleges that (CE) was a vulnerable person. (The respondent) admits that she was, but only in the period January 2013 to May 2015. The applicant alleges that this vulnerability persisted during (and indeed beyond) all relevant interactions between (CE) and (the respondent).

14. [14]
    It is common ground that the respondent suffers from a genetic neurological disability known as our autosomal recessive cerebellar atrophy type I (ARCA1).
15. [15]
    In his opening filed 24 November 2021, Mr Green of Counsel on behalf of the respondent, identified the issues in dispute at the start of the hearing. His reference in that written opening to any reliance on the recitation of CE's complaint to OHO 9 October 2017,^[7] he accepts has little value as that document is not in the material before the Tribunal.
16. [16]
    In relation to the issue of CE’s vulnerability he stated:^[8]

17. Any vulnerability must be considered, relatively, as between the complainant and the respondent. Vulnerability or otherwise must be assessed having regard to the other party and the interactions of communications passing between the two. The respondent had at all times (ARCA 1), being a genetic neurological condition and accompanied by disability. The complainant was at all times a qualified occupational therapist. The complainant established a successful business. The complainant was undertaking a Master’s in Medical Management. The complainant owned and was subdividing real property. The complainant was undertaking property renovations at the complainant’s residence.

17. [17]
    At [21] of his outline,^[9] Mr Green wrote:

21. The respondent did not enter a sexual relationship with a former patient. There was a friendship between the complainant and the respondent. The complainant and the respondent did kiss in or after January 2016, where the doctor-patient relationship ended in May 2015. the complainant and the respondent did hug in or after January 2016, where the doctor-patient relationship ended in May 2015. There was no sex, or any sexual relations and any kiss or hug was between friends.

18. [18]
    It is common ground by reference to the pleadings that at all material times, more particularly between 2013 and 2016, the respondent was bound by the:

    1. (a)
       Good Medical Practice: A Code of Conduct for Doctors in Australia (Code of Practice); and
    2. (b)
       Sexual Boundaries: Guidelines for Doctors, dated 28 October 2011 (Guidelines).
19. [19]
    The Code of Practice and the Guidelines were tendered as a separate exhibit.^[10] The applicant’s case essentially is, in the context of the relationship that had been developed between the parties from 13 January 2013, the personal relationship between them between January 2016 and April 2016, involved conduct by the respondent that breached 8.2.1 and 8.2.2 of the Code, relating to professional boundaries by reference to the following section of the Guidelines:

5. Sexual relationships with former patients.

It may be unprofessional for a doctor to engage in a sexual relationship with a former patient, if this breaches the trust the patient placed in the doctor. When considering such allegations, the Board would take into account:

the duration of care provided by the doctor; for example, if there had been a long-term emotional or psychological treatment provided.

level of vulnerability of the patient.

the degree of dependence in the doctor-patient relationship.

the time elapsed since the end of the professional relationship.

the manner in which and reason why the professional relationship was terminated.

the context in which the sexual relationship was established.

20. [20]
    There are many references in the Guidelines to the concepts of “sexual misconduct” and a “sexual relationship”. Under paragraph 3 of the Guidelines, it is stated:

Sexual relationship describes the totality of the relationship between two people, when the relationship has some sexual element, including any sexual activity between a doctor and their patient. This is the case whether or not the sexual relationship was initiated by the patient

21. [21]
    The parties have agreed to a number of background facts.

The agreed facts

22. [22]
    The respondent’s medical qualifications and registration details are admitted, and it is agreed that he commenced working as a general practitioner at GMC in or about August 2012. He worked at that practice until February 2018 and since then he has worked at another general practice at Manly in Queensland.
23. [23]
    It is admitted that prior to January 2017, CE completed qualifications as an occupational therapist. It is admitted that prior to January 2013, she worked as an occupational therapist. It is admitted that prior to January 2013 she conducted a small stationery business. It is admitted that she has four children who were aged between 11 and 17 years of age as at January 2013, and that on 13 January 2013 her husband died suddenly. It is admitted that she was a vulnerable person.
24. [24]
    In relation to medical consultations between the parties, the agreed statement of facts is in these terms:

On 14 January 2013 CE attended GMC for a medical consultation with the respondent. She attended a medical consultation on 15 January 2013, with the respondent. She visited the GMC after 15 January 2013, on 13 February 2013 and had a medical consultation with another doctor. She attended a medical consultation on 16 February 2013 with the respondent who made a referral to a psychologist at GMC as part of a mental health plan. On 21 February 2013 CE was referred by the respondent to another clinical psychologist. CE attended that psychologist on 22 February 2013. Between 14 January 2013 and 11 May 2015 (a total of 848 days), CE attended the GMC as to medical consultations with the respondent some 108 times, generally weekly or fortnightly in the 121-week period. On 13 February 2015, the respondent referred CE and her children to a social worker. CE attended GMC on 9 May 2015 for a medical consultation with the respondent for an influenza vaccination. She attended GMC on 11 May 2015 for a medical consultation with the respondent as to test results ordered by another doctor on 7 May 2015. The 11 May 2015 medical consultation was the last physical medical professional attendance by CE with the respondent.

25. [25]
    On 15 May 2015, the respondent emailed CE as to the results of an ultrasound. On 14 July 2015 he emailed her communicating the blood test results were fine. CE and the respondent communicated by email as noted in the clinical notes from on or about 29 March 2014. Between on or about 29 March 2014 and on or about 12 April 2016 CE and the respondent exchanged emails.
26. [26]
    In relation to the land owned by CE, the agreed statement of facts is that in mid-2014 she subdivided a block of vacant land and built a new house on one half of the property. In or about early April 2015 she and the respondent spoke about he and his wife purchasing the vacant subdivided land block, next to the new house constructed in mid-2014, on the other half of the property owned by CE.
27. [27]
    The vacant land owned by CE was not advertised for sale through an agent and/or on the internet. On or about 21 April 2015 the respondent and his wife met with CE to view the vacant land owned by her. On or about 27 April 2015, she communicated with Mr GH, a retired accountant, about selling the vacant land to the respondent and his wife. Mr GH was an old family friend and business acquaintance of CE’s late husband.
28. [28]
    On or about 30 May 2015, there was a meeting between CE, Mr GH, the respondent and his wife as to the sale of the vacant land. CE stated words to the effect “the valuation of the land was $650,000 and that a sale price of something between $575,000 and $600,000 would be attractive”.
29. [29]
    On 16 May 2015, CE sent an email to the respondent about having obtained a property valuation from Herron Todd and White valuers and offered to provide a copy of that valuation. No copy of the valuation was provided. On 2 June 2015, the respondent sent CE an email addressed to her and Mr GH referring to an offer of $600,000 for the vacant land. On 24 June 2015 the respondent and his wife agreed to a price of $610,000 for the land, subject to approval by the Brisbane City Council (BCC). On 2 July 2015, CE communicated to the respondent as to BCC conditions attached to the approval. On or about 31 July 2015, CE received notification from the BCC that her reconfiguration had been approved, subject to environmental planning conditions. The approval required the planting of over 300 trees, shrubs, and native grasses.
30. [30]
    After 31 July 2015, CE’s family and the respondent’s family, including his wife and their respective children, spent considerable time on the land planting 300 trees, shrubs, and native grasses. Watering was required and the respective families attended the land generally on a daily basis.
31. [31]
    The families had pizza evenings together, using a pizza oven that CE had built on site in mid-October 2015. By early January 2016 all the planting had been done, but there was still a significant amount of work to do including the distribution of several tons of mulch to achieve an approved depth around the trees and shrubs at the land.
32. [32]
    On or about 14 March 2016 the respondent’s wife communicated with CE requesting that she stay away from the respondent and his family. CE and the respondent did not see each other from in or about April 2016. The respondent and his wife never paid any sum whatsoever as to the purchase of the land from CE. No contract of sale was ever signed by them in relation to the land purchase. The land was never transferred by CE to the respondent and/or his wife.
33. [33]
    In or about January 2016 until in or about April 2016, CE kissed the respondent on the lips. In or about January 2016 until in or about April 2016, CE and the respondent cuddled each other. In or about January 2016 until in or about April 2016, CE and the respondent were in a close and/or emotional relationship.

The applicant’s case

The evidence of CE

34. [34]
    CE provided a number of affidavits^[11] and was cross-examined for many hours. At times during her evidence, understandably, she became upset and emotional. For reasons I will articulate carefully, she impressed me as a reliable historian and a credible witness. During her extensive cross-examination she made many appropriate concessions, particularly in relation to peripheral issues but, in relation to the real factual issues in dispute, she was resolute in maintaining her evidence as set out in her hearing affidavits.
35. [35]
    At the conclusion of the applicant’s case (after CE was re-examined), Mr Green made a number of concessions on behalf of the respondent in accordance with his instructions, and before his client gave evidence. His client then gave evidence and was cross-examined at length by Mr Templeton, during which cross-examination he made many more important concessions, and retracted parts of his evidence contained in affidavits filed on his behalf.
36. [36]
    For that reason, I do not intend to deal with all of CE’s evidence. It is necessary only for me to deal with critical aspects of her evidence which are directly related to the key issues joined between the parties.

The doctor/patient relationship period

37. [37]
    From the first consultation on 14 January 2013 to the last in person consultation on 11 May 2015, CE saw the respondent 108 times. This equates to weekly or biweekly consultations. The respondent also acted as general practitioner for CE’s four children during this period at various stages, and CE would attend those consultations.
38. [38]
    She describes this period from when she first met the respondent as follows in her affidavit:

3. The next two years were horrible for me with significant traumatic events in my life. These events included the death of two other significant adult males in my life, the death of my mother-in-law, financial challenges, two gynaecological operations, and my eldest daughter going off the rails. At the same time, I was completing a land subdivision which I had hoped would relieve a massive debt I was carrying. During this time (the respondent) was an incredible support to me. Whilst he did initially refer me to two psychologists within GMC, I was unable to relate with them at all, and ended up receiving counselling from (him) commencing in the early stages of the treating relationship, which I found helpful.^[12]

39. [39]
    As well as the face-to-face consultations, from 29 March 2014, CE began email correspondence with the respondent addressed to his professional email account at GMC, which continued until the end of their association in April 2016.
40. [40]
    The email correspondence, which is primarily from CE to the respondent, is extensive.^[13] The respondent told Mr Templeton that at relevant times he had approximately 2,000 patients. He received emails to his professional address from only a small number, but the sheer number of emails from CE far exceeded those received from any other patient.
41. [41]
    In my view, the contents of the emails and their frequency, give some indication of how extensively CE relied upon the respondent, not only for medical advice in relation to her own issues, particularly emotional and mental health issues relating to the stresses she identified in her life, but also in relation to the children, especially her eldest daughter who had significant mental health issues which ultimately, required hospitalisation.
42. [42]
    The sheer volume of contact as demonstrated in the email trail over the years, and the later Facebook Messenger contact, and the content of some of those communications, cannot simply be dismissed as “within the incidents (sic) of common platonic friendship”, as Mr Green submits in his written submission dated 7 February 2022. These contacts, as I will demonstrate, show how much she depended on, and trusted him and relied upon him over the period 2013 to 2016.
43. [43]
    Her evidence is that, for a variety of reasons, including the sudden death of her husband and the other factors referred to in paragraph 3 of her trial affidavit, for the majority of the time she was a patient of the respondent she was struggling. The emails referred to her eldest daughter’s difficulties, difficulties with her former business partner and friend, and other issues that stressed her.

The end of the doctor/patient relationship

44. [44]
    CE says she was the prime mover in ending the doctor-patient relationship because she felt “weird” about seeing him, because of the land negotiation. In her affidavit she states:

David said to me that he had consulted a colleague, Dr MA, who also worked at GMC, as to whether it was acceptable to buy land from a patient, and that Dr MA told David that it was. However, I was yet to decide what I was doing with respect to the sale of the subdivided block, which had not been given a separate title at that stage.^[14]

45. [45]
    In his affidavit in response to hers, the respondent denies this conversation,^[15] although in cross-examination (as with many more critical issues) he recalled having a discussion with Dr MA who had sold land to a patient about the “propriety” of that but could not recall discussing that with CE.
46. [46]
    Given her high level of dependence upon the respondent, as demonstrated both in her evidence (particularly in 2013 to 2014), and the emails which continued until well after the end of the therapeutic relationship, I think it is unlikely that CE would have moved to end that relationship because of the land negotiation.
47. [47]
    Her sister YA gave evidence and provided a statement to OHO on 18 March 2018.^[16] In paragraph 8 of that statement, she referred to the improvement in her sisters physical and emotional health “which she credited David with”. YA was an impressive witness. She holds a senior position in health administration in another State, and has held similar positions for many years. In that same paragraph she refers to “(CE) reporting that she had transferred to another GP at GMC at David’s suggestion.”
48. [48]
    YA also observed,^[17] that in 2013 to 2014, she started “to become concerned regarding the apparent dependency she (CE) was developing on him, and frequently encouraged her (unsuccessfully) to consider pursuing other avenues for counselling”.
49. [49]
    As indicated above, CE believes that the respondent was an “incredible” support to her. Once her eldest daughter left home in March 2015, she frankly states that her life normalised and she commenced a postgraduate degree.
50. [50]
    In cross-examination the respondent suggested that initially he was seeing her for grief counselling but that developed in April – May 2013, to “advice and listening”; particularly in relation to the eldest daughter, and in 2014 he characterised it as “counselling”. In his contemporaneous clinical notes, he described his role as “listening services with counselling about current stressors, and less grief”.
51. [51]
    In cross-examination, Mr Templeton took the respondent to a number of emails in 2015 leading up to the cessation of the doctor-patient relationship. There are a series of emails, in February 2015,^[18] which relate to the respondent’s attempts to involve a social worker, relating to what he described in an email to the social worker on 13 February 2015 as “a family in difficult circumstances”, and needing “somebody who can assist with chaos”. The respondent agreed that the email to him from CE (to which she attached a lengthy email sent by her to the social worker) sent at 11:14 pm on 18 February 2015,^[19] showed a high degree of vulnerability. It also shows a high degree of dependency on the respondent.
52. [52]
    Similarly, the respondent agreed that the email exchange commencing on 5 March 2015,^[20] where CE advised him that her daughter was admitted to a mental health hospital, indicated that she was then suffering a high degree of stress and vulnerability.

From May 2015 – April 2016

53. [53]
    The email correspondence CE and the respondent after 11 May 2015, generally contains much more reference to the land, and the developing friendship between the families, but it also continues to involve issues of medical/emotional stress related nature, despite CE now seeing another doctor at GMC.
54. [54]
    Again, Mr Templeton in cross-examination took the respondent through a number of these emails to demonstrate her ongoing dependence on him for stress-related matters and medical advice despite the developing friendship and the land negotiations.
55. [55]
    The email exchanges between them have been assembled in the hearing brief in descending chronological order that is first is on page 550 and the last in time on page 129 of the hearing brief.^[21]
56. [56]
    In the exchange 19^th May 2015,^[22] where the subject line is “GP stuff”, reference is made to having a “headspace” chat with “the GP hat on”, from her at 8:23 pm on 18 May 2015, and a response from him at 8:46 pm on the same day: “happy to catch up wearing that cap…”.
57. [57]
    She says he introduced this terminology and I do not understand him to contest this, at least in his evidence before the Tribunal.
58. [58]
    In her trial affidavit,^[23] she states:

23. Not long after transferring to Dr K I told David I missed him being my doctor. He said we could still have “conversations”, just not in his office.

59. [59]
    In his trial affidavit,^[24] he denied “the events” referred to in that paragraph, but he was certainly not saying that when he was cross-examined. In relation to this email exchange, he told Mr Templeton that he was playing two roles – a friend and a doctor. In my opinion, that accords with the terminology used by them both in the early stage after 11 May 2015. He accepted that CE still regarded him as her doctor, and that in the email exchanges there was “some confusion”.
60. [60]
    By June 2015, the emails were primarily to do with the land sale, however each of the parties were raising personal issues. For example, he raised his concerns about his mother's care in New Zealand and she referred to her problems with an allegedly dishonest solicitor. By 24 June 2015, CE and the Nixons had reached agreement for them to purchase the land for $610,000 subject to various conditions.^[25]
61. [61]
    On 14 July 2015 at 6:27 pm the respondent advised CE about some blood tests and commented “I will be in touch without my medical hat on later this evening”.^[26] He explained in cross-examination that he did that because the doctor who ordered the test was away. He agreed that it was a bit “blurred” at that time and said that there was a “duality” to his role as her former doctor during this period.
62. [62]
    In her trial affidavit CE says that around this time, she made an online booking to see him, but cancelled it as she no longer felt comfortable. At [20]^[27] of her affidavit she states:

20. In or around July 2015 David referred me to one of his colleagues at GMC, Dr K. My three children that lived with me remained David’s patients up until March 2016, when I decided to stop taking them to see David because of the text message I received from (his wife).

63. [63]
    In the respondent’s trial affidavit affirmed 24 March 2021, he says that “the events” did not occur. This is a reference to what she states in [22] of her affidavit to the effect that after her first consultation with Dr K he said something to the effect that he would let David know leading her to think that David may not have spoken to Dr K about transferring her as a patient.
64. [64]
    In cross-examination, he said he could not remember, but that he talked to Dr K in the first few days of August about transferring CE to him as a new patient. This is not consistent with the fact that Dr K saw her on 14 July 2015. It is also not consistent with what he said in his own affidavit:

4. (xvi) paragraph 22 – the events as detailed in the paragraph did not occur. I say that (CE) appears to be referring to the transfer of (CE) to a new doctor.

65. [65]
    There is an email exchange in August 2015, where, in some messages, she raises some of the issues she raised with him when he was still her doctor, such as her problem with her former business partner and friend, “U”. In my opinion, the emails demonstrate a growing friendship between them, which involved discussing not only the land but other issues including issues that they had discussed during the therapeutic relationship.
66. [66]
    In cross-examination he said that at this stage they were “navigating” their friendship, and his role as a “listening ear”.
67. [67]
    An email on 31 August 2015 7:12 pm, he agreed in cross-examination, was of a type of issue she raised in 2014. She expands on these issues (to do with issues relating to the children and their father’s death) at 8:06 pm on the same day, to which he responded at 7:20 am on 1 September 2015,^[28] where he offers to meet her for coffee to go through some of the issues she has raised.
68. [68]
    In a lengthy email to him on 12 September 2015 at 7:51 am,^[29] she raises with him a number of issues that were stressing her at the time, and on 10 September 2015^[30] she raises medical issues with him that she has discussed with Dr K. He does not appear to respond, but throughout this period (May – September 2015) he responds enough to, as he put it, confuse the role he was then playing. What is clear is her ongoing dependence on him, not just as a friend, but as her former doctor. It is clear that he did meet her for coffee,^[31] and although it is not part of the case against him, he was clearly not doing anything (apart from involving Dr K) to deal with what should have been an obvious dependency, particularly to a general practitioner as experienced as him.
69. [69]
    In October,^[32] she asked him to put your “old hat” on and check whether there was any record of an abnormal Pap smear test to which he responds on the same day. All of the emails sent by CE (with the exception of some that were either sent to or copied to the respondent’s wife) were to his Medical Centre email address. He agreed that on 14 October 2015,^[33] he exchanged emails with her which he agreed in cross-examination raised issues that she had raised while he was still her doctor. He made the same appropriate concession in relation to an email exchange on 23 October 2015.^[34]
70. [70]
    In October 2015 the respondent and his family moved to a rental house in a Brisbane suburb, which was only a few streets away from CE’s home. Her house was built on the block, which was being subdivided, so if the sale to the respondent and his wife had ever eventuated, they would have been neighbours.
71. [71]
    In November 2015, CE took her second youngest daughter to an overseas country on a holiday to celebrate the end of her schooling. In October 2015, CE and the respondent became friends on Facebook. Over the period from 13 October 2015 to 14 March 2016, they exchanged an extraordinary number of messages which are exhibited in CE’s trial affidavit, and which cover almost 490 pages. The respondent (independently of CE) had also agreed to take his son to the same overseas country where they arrived on 26 November 2015.
72. [72]
    Another Facebook group account was set up which included CE and the respondent, his wife and a friend who also went to from the overseas country with his sons. The posts on this account on Facebook messenger are from 1069 to 1135 in the hearing brief.
73. [73]
    In late 2015 (after they had returned from the overseas country), and as a result of the respondent agreeing that he and his family would assist CE with complying with Council conditions relating to fencing and planting of trees and shrubs, the respondent set up another Facebook messenger account, and those messages are exhibited in CE’s trial affidavit from pages 1137 to 1437 of the hearing brief.
74. [74]
    Whilst they were both in the overseas country, and quite coincidentally, the respondent and CE and their respective children stayed in the same hotel in Town K on 29 November 2015.
75. [75]
    CE describes an occasion,^[35] when, after the children had gone to bed, the respondent asked her if he could sit beside her on the couch to which she agreed. She does not allege any inappropriate contact, but recalls he said, “if we wanted to be neighbours, we could never be more than friends, and that his son had asked him if he was in an inappropriate relationship with her”. He does not respond to this paragraph in his trial affidavit, and accepts that he might have said that.
76. [76]
    Although predominantly the private Facebook messages are to do with the land, there are some that touch on issues of her stress and health. For example, in a series of messages started at 7:47 am on 14 January 2016, she refers to her stress and blood pressure,^[36] to which he responds at 11:30 am with a reference to Dr K being booked out tomorrow. The messages demonstrate a significant degree of emotional bonding between the two, which he says was friendship and which she says had turned into something much more.
77. [77]
    The respondent’s wife was away overseas from 4 January 2016 to 25 January 2016. During that period, the respondent spent two to three hours a day at the block and had several visits for pizzas with his children and CE and her children. At [43]^[37] of her affidavit she states:

[43]  It was in late January 2016 when David first verbalised his feelings towards me, and I came to know that my feelings for him were not one-sided. After Australia Day 2016, and once (his wife) was back, David visited me at my home early one morning to check on the plants. I made us coffee first and we sat at my dining table. David moved his chair close to mine and said, “it’s been really difficult spending time apart”. I nodded. David went on to say that it was okay if we spoke about our feelings for each other, but if we had an affair it would only last weeks. David told me that it was more important to him that I was in his life for the long term. I obviously assumed that David knew that I had feelings for him. I have described my feelings as “one-sided” because I knew how I felt, and until David clearly, rather than covertly, verbalised his feelings, I could not be certain what was in his mind. Prior to David revealing his feelings, I had not verbalised my feelings to him because I felt so guilty, and that the situation was hopeless. I asked David whether he was certain these feelings were not based on the fact that he just enjoyed gardening with me and that he’d become confused. He said that he wasn’t confused. I just decided to be honest and agreed that it had been difficult spending time apart. I also told him about my feelings for him, but I can’t remember the exact words used.

78. [78]
    The respondent does not contest this description in his trial affidavit. In cross-examination he says he could not recall this occurring. For reasons that I will explain, I have formed a strong view that the respondent is not a reliable historian, which, in my opinion is not explained by his genetic condition.
79. [79]
    At [47] of her affidavit,^[38] CE states:

47. Sometime after 7 February 2016, I did actually meet David at GMC upon his request. David ushered me into his office, and we sat opposite each other with our knees touching. David ran his hands along the top of my thighs. We talked about missing each other and how hard it was being apart. David also encouraged me to try to allay (his wife’s) concerns about the time we had been spending together.

80. [80]
    Again, the respondent does not respond to this account in his affidavit, the logical inference being that he does not contest her version. In cross-examination he told Mr Templeton that he can recall meeting her in his office. That is an unusual event in itself. She was no longer his patient. He now says (and did not say in his affidavit) that he did not say anything about allaying his wife’s concern. I accept that this event as described by CE took place.
81. [81]
    At [48] she states:^[39]

48. Sometime after meeting David at his office at GMC where he touched my thighs, David and I were working on my block of land in an area that was accessed through a lockable gate, on the upper back section of the property. We generally always left the gate unlocked whilst we are in the area. When I went to leave, I was walking slightly ahead of David and I found that the gate was padlocked. I had not replaced the lock. I realised that David had locked it when we had entered it. I turned around to David as he had the key. David took some steps behind a wooden section of fence which he leaned back on, pulling me in towards him with our hips/bodies pressed hard against each other. As we hugged, which appeared to me to have been planned and initiated by him, our faces were touching, and turned my face towards him assuming we were going to kiss. At this point he said words the effect of, “we can’t kiss, or I won’t be able to control myself”. I had not set out to kiss him before he pulled me in for the hug. (She then exhibits a copy of the photograph of the wooden fence where she says this incident occurred).

82. [82]
    In the respondent’s trial affidavit,^[40] the only thing he disputes is locking the gate. In cross-examination he says that he did not say “we can’t kiss, or I won’t be able to control myself”. Again, I accept her evidence in relation to this incident.
83. [83]
    At [50]^[41] she states:

50. Not long after we hugged at the fence, David asked me to see him at GMC. On this occasion David ushered me into his office and, as soon as the door was closed, he pulled the blind down. David pulled me in tightly and we hugged with our bodies pressed against each other. While we were hugging, David appeared to be momentarily startled, I asked him what was wrong. He told me that he was worried that someone might walk in. Apart from that, I do not otherwise recall what we spoke about on that occasion.

84. [84]
    Again, the respondent does not refer to this incident in his trial affidavit. In cross-examination he accepted that this incident occurred.
85. [85]
    At [51] of her trial affidavit, CE states:

51. After the first occasion on which David expressed feelings for me, as I mentioned above, we had further discussions both in person and over the phone in which David verbally expressed his feelings for me. David stated that this (him expressing his feelings to me, and to express our mutual feelings) was okay. By that I think he meant that an emotional affair was okay compared to a physical affair. However, on either version I still considered it to be “cheating”. David would call me from work to tell me he wanted to know “I was loved”, and on another occasion in the car on [redacted] road he told me that he “loved me and always will”. I told him I thought he was fooling himself (if he thought that talking about our feelings was not an affair). He said we could talk and hug, but that there would be no kissing or sex.

86. [86]
    In his response^[42], the respondent did not deny saying that he “loved her and always will”. In [52] of her trial affidavit, CE states (in part), “it was also clear to me (after first revealing his feelings for her) that he wanted to be with me full-time, “at some point”; and that “what (in life/in a partner) had changed, and it was me”. In his affidavit in response^[43], the respondent stated he “did not ever state or express any intention that (he) would be together with CE “full-time at some point”.
87. [87]
    At the conclusion of the applicant’s case, which was at the completion of Mr Green’s cross-examination of her, Mr Green informed the Tribunal that after listening to CE’s evidence, and reflecting on his own affidavits, his client intended to give evidence contrary to his filed and affirmed evidence and corroborative of CE’s evidence. One of those concessions was to the effect that he did express his love for her “in March”. In cross-examination by Mr Templeton by reference to paragraph [52] of CE’s affidavit, the respondent retracted his sworn evidence (at 4(xxviii) that he did not ever state he wanted to be with her.
88. [88]
    The respondent’s evidence, in particular when under cross-examination, revealed a poor memory. There were many “I can’t remember” answers, or “it may have happened”. The piece of evidence referred to above is one of many in which (on an important point i.e. the point in time at which he first expressed his love for her and his desire to be with her), he retracted his earlier evidence. These concessions paint the whole of his account of his description of the relationship with CE from January to April 2016 with a cloak of unreliability.
89. [89]
    Her recall is that they kissed for the first time on Tuesday 23 February 2016. He recalls that they kissed for the first time as friends at sunrise on Australia Day. At 57 of her trial affidavit, CE states:^[44]

57. About two or three days after the kiss on 23 February 2016, David called me from the GMC landline and asked me to come up to GMC and park underneath. When I arrived, it was early evening and the sun had gone down. The car park was brightly illuminated, so I messaged him, and he instructed me to go round to the rear of GMC where the ambulance would park. I parked my car in one of the spaces facing the park and to the rear of GMC and the [redacted] shop. He exited from the rear of GMC shortly thereafter, carrying a hand towel. He entered the front passenger seat of my car. No words were initially exchanged, we just passionately kissed for an extended period, around 10 to 15 minutes. Once we stopped kissing, David apologised that he had to go and said that he didn’t want to. David left carrying the towel and re-entered GMC by the rear entry.

90. [90]
    In his trial affidavit,^[45] the respondent did not dispute that they met as described above, but he denied any extended passionate kissing. He states (in part): “we spent some time enjoying each other’s company and we kissed for a short time…”.
91. [91]
    Another concession made prior to him giving evidence, related to an incident she describes in paragraph [84] of her trial affidavit.^[46] In that incident, which occurred after she received the message from the respondent’s wife on 15 March 2016, telling her to stay away from her husband, and (she says) one of three occasions they met in April 2016 after that message, she described them “tongue kissing for about 30 minutes”, with their bodies pressed “hard up against each other”. The respondent did not specifically address this allegation in his trial affidavit,^[47] apart from saying “I did not have any intention to restart the friendship”. Mr Green informed the Tribunal that he would in his evidence admit to “tongue kissing” with CE on this later occasion.
92. [92]
    In relation to the incident described in paragraph [57], CE said in her evidence that the passionate kissing described on that occasion did involve “tongue kissing”. In the respondent’s evidence in cross-examination, he accepted the accuracy of what she said occurred in the incident described in paragraph [57]; that is, he agreed that it involved “passionate kissing”, but he could not recall “tongue kissing” on that occasion. His evidence on this issue in his trial affidavit is simply wrong. It is one of many examples in which he has attempted to downgrade the relationship from one that involved behaviour of a sexual nature to one of a simple friendship.
93. [93]
    In a similar vein, her evidence of an occasion on 6 March 2016, which she described in paragraph [62]^[48] of her trial affidavit. This involved an incident which she says involved him arriving at her house, where he led her into the bush corridor behind the back fence early in the morning and leaned against the fence and pulled her towards him and they “kissed passionately”.
94. [94]
    She says he then moved inside her home/bedroom, and then to the kitchen when he came behind her and put his hands “around her and on my breasts”. She says he had an erection.
95. [95]
    In his response,^[49] the respondent denies placing his hands on her breasts or having an erection. He says that he recalls that “we did kiss one morning about this time”, and that he “did give (CE) a hug”.
96. [96]
    In cross-examination he accepted that he did go around to her house and, contrary to his affidavit, did kiss her passionately. For the reasons referred to earlier, i.e., his concessions, and backtracking on previously sworn evidence, leads me to conclude that CE’s evidence of this incident is accurate. The incident she described is overtly sexual in nature.
97. [97]
    In paragraphs [64] – [66] of her affidavit CE describes an incident at a training shed which she says occurred early in the morning on 10 March 2016. She relates this to a series of Facebook messages on their personal account commencing with a message from him at 4:04 am, “hi”.^[50] In his trial affidavit, the respondent disputes most of her evidence, but does concede that “during a training session I did change my clothes in the changing area when (CE) was in the area”. He admits “we did kiss”.
98. [98]
    Yet again, he told quite a different story when cross-examined by Mr Templeton. He agreed that they did go into the change shed, and he closed the door behind her. He did not deny stripping naked. He concedes he may have said words to the effect “is this acceptable”. He denies having an erection. He says that they did not press their bodies together. He concedes he was naked when they kissed. He says it was a “light” kiss on the lips. He denies that they kissed “passionately”.
99. [99]
    Not only is his account inherently improbable i.e., that mere friends would kiss while alone in a small shed in the early hours of the morning while one was completely naked; it is entirely unreliable and inconsistent with the other concessions he has made. It is another example of his attempt to characterise what was clearly a sexual relationship (without actual sexual intercourse) as a simple friendship.
100. [100]
     In paragraph [67] of her affidavit,^[51] CE describes an incident which she says happened sometime after the shed interaction, in which she describes the respondent and his wife visiting her at home, and while his wife was in the bathroom, he “drew me to him and kissed me”.
101. [101]
     In his trial affidavit the respondent makes no reference to this allegation and I accept that this incident occurred as described by CE. Again, it is not the conduct of a friend. Rather it is the conduct of a man with a sexual interest in CE, who was prepared to act on that occasion pursuant to that interest in a risky fashion.
102. [102]
     At paragraph [68] of her trial affidavit, she states that in the 4 to 6 week period after they first kissed, he talked about a number of things, including renting a place where they could meet. In his trial affidavit he admitted to talking with CE about a possible rental, but he related it to thoughts he had “in the past” of leaving his wife.
103. [103]
     In her trial affidavit paragraph [72] – [76], CE describes an occasion when her sister was visiting from interstate and they all walked up a mountain i.e., CE, her sister, the respondent and his wife. At paragraph [75] she describes having coffee with the respondent while her sister remained in the car. She says (at paragraph [76]), that after coffee he walked her to the car and said to her sister “I’ll look after your sis”.
104. [104]
     In his trial affidavit, the respondent says that his recall is that the sister said to him “you had better look after my sister” and that he responded, “I will do my best”. This is clearly the weekend described in the sister’s (YA) affidavit.^[52] This is the first time that CE had admitted to her that she and the respondent “had indeed commenced a relationship”. Her statement, which I accept, shows just how emotionally vulnerable her sister was throughout the period from soon after the first consultation on 14 January 2013 through to the weekend of 12 March 2016 when she visited. As she says in evidence, CE is estranged from their parents and only remaining female sibling, and the family was estranged from her husband’s family as well for some time prior to his death. The sister was understandably deeply concerned about her sister’s welfare in light of this disclosure.
105. [105]
     YA in her statement refers to an incident over that weekend, where at around 9:00 pm, she was alone at her sister’s house, and became aware that the respondent was standing outside of the side door in the dark. After the walk on the Sunday, she says in her statement the respondent rang the house and she answered as her sister was out. She states:

I recall David indicating that he knew CE had informed her of their relationship, and he affirmed “his love for her and that he intended to look after her and this included leaving his wife in due course”.

106. [106]
     In his trial affidavit,^[53] the respondent denies that he said this to YA. This was never suggested to YA in cross-examination by Mr Green. In the respondent’s evidence in cross-examination, he said that he could not recall having that conversation with the sister. He also said in cross-examination that on occasions he affirmed his love for CE, and expressed his intent to leave his wife, but that he did not make those statements to YA. I do not accept his evidence. I accept the sister’s evidence, which is consistent with the respondent’s trial concessions about telling CE that he loved her and that he had contemplated leaving his wife.
107. [107]
     CE says that after 15 March 2016, effectively the respondent did not contact her. He did however contact a colleague, Dr HS, who provided a statement to the OHO,^[54] and who gave evidence in the trial via video link from overseas.
108. [108]
     The respondent explained in his evidence that his wife had found out about the relationship as a result of him giving his old phone to his son, and his wife discovered messages on the phone between him and CE. He told Mr Templeton that he at first denied any relationship with CE to his wife, but then admitted that he had hugged her, had coffee, and that once on the land he had given her a celebratory hug and she had “tried” to kiss him which he resisted. He did not admit any passionate tongue kissing to his wife; or pressing their bodies against each other, or to standing naked in front of her and hugging and kissing her in the training shed. He told Mr Templeton that he had been in an “inappropriate relationship” with CE.
109. [109]
     Doctor HS knew the respondent as a result of taking professional advice from him following a stroke in 2015. She was referred to him for advice on dealing with a neurological disorder as a medical practitioner.
110. [110]
     After the professional contact, they had spasmodic contact over the years. It is not in dispute that he rang her in March 2016, after a lengthy period of no contact.
111. [111]
     In her statement to the Health Ombudsman, Dr HS said that in the conversation in March 2016, the respondent said “that he’d been having a relationship with a woman and that his wife had found out. He said that he couldn’t contact this woman himself but he wanted to make sure that she was okay and to assure her that he was going to be fine.^[55]”
112. [112]
     She reluctantly called CE and they met for coffee at Brisbane location. CE confirmed to her that she had become involved in a relationship with him and was very concerned about his welfare. Dr HS says in her statement :

I had no indication or suspicion at any point that (CE) had ever been a patient of David’s. I’m well aware of the mandatory reporting requirements around such circumstances.

Her evidence to this effect was not challenged in cross-examination.

113. [113]
     The first contact after 15 March, was an email from the respondent (from his professional email address),^[56] to CE on 5 April 2016, and there was another email to her on 12 April,^[57] with the message, “[redacted place] 10:15-ish Thursday”.
114. [114]
     In her trial affidavit CE describes three meetings at a set of Brisbane shops which (I infer) followed the 5 April message. At paragraph 84 of her trial affidavit CE states:

84. It was during the second of these three meetings that we recommenced our physical relationship. I parked my car at the perimeter of the car park at the [redacted] shops. I then went to the pharmacy (which doubled as a coffee shop) and ordered a peppermint tea. I was just finishing my tea when David arrived. I asked him if he wanted anything, instead David led me outside to my car (which I unlocked as we approached), and David opened the rear door of my car. We both got into the back seat of my car. David guided my hand between his legs and I felt that he had an erection. I sat and then laid on him. We were clothed, our bodies pressing hard up against each other and tongue kissing for about 30 minutes, on and off, as there was some talking, but not much. David asked me how long I had feelings for him and I told him “a long time”, to which he replied “I know”. David also said that he didn’t “want things to be worse than they were”. I replied, “how could things be worse?”, Thinking about our situation (that we were apart and wanted to be together). I said to David that this (that is, the hugging and kissing) would be much better naked, to which David replied, “yes” and then he suggested he would meet me the next day at my home (for sex).

115. [115]
     The respondent does not deal expressly with this important evidence in his trial affidavit;^[58] however, he denies he had any intention “to restart the friendship. I did not have an erection. I did not guide her hand. I did not make plans are to have “sex”.
116. [116]
     He does not deny that they “tongue kissed for about 30 minutes”, nor does he deny that she lay on him or that their “bodies (were) pressing hard up against each other.” Consistently with the concessions made on his behalf at the start of his case, and in his cross-examination, he agreed that they did get into the back seat of her car and tongue kissed passionately; he says for between 10 and 15 minutes. He conceded that he may have had an erection, but he still denied guiding her hand.
117. [117]
     For the reasons I have exposed earlier, I accept her evidence in relation to this meeting, and reject his where it conflicts with hers. This was clearly a sexual encounter, although no sexual intercourse resulted.
118. [118]
     The last of the meetings at the Brisbane shops is described in paragraph [87] of her affidavit.^[59] The respondent’s response in his trial affidavit,^[60] contains his self-diagnosis of being depressed at the time. There is no independent evidence to support this. He clearly would have been stressed by circumstances which were largely of his making, and in which he was a willing participant. She describes returning a book to him on that occasion that he had lent her earlier. He makes no mention of this in his trial affidavit. In her trial affidavit^[61] she describes the book as being titled “Sex at Dawn. How we mate, why we stray, and what it means for modern relationships”. In cross-examination by Mr Templeton, he agreed that the book was about sexual straying and that he lent it to her and that she returned it to him at this last meeting.
119. [119]
     He was cross-examined about his second trial affidavit, which was affirmed on 24 November 2021; that is only a week or so before the hearing. That affidavit which is Exhibit 2 in the proceedings states in 2. and 3.:

2. There was never, at any time, any “physical sexual intimacy” between (CE) and myself. There was no touching or petting behaviour. From my belief and perspective, the actions were analogous to teenage kissing and were no prelude to other events.

3. I did not ever make a verbal or physical “advance of physical sexual intimacy” to (CE) at any time. There was nothing in my behaviour to advance or invite physical sexual intimacy. I recall specifically verbally stopping (CE) from removing her own clothing. My belief is that there was no behaviour on my part as an invitation, advance or expression of openness to physical sexual intimacy. I recall an invitation from (CE) to park in the side street and go to her home and I did not comply with that request.

120. [120]
     In light of the concessions made by him in his own evidence, many of which were in conflict with his own previously affirmed affidavits, in cross-examination by Mr Templeton he retracted a number of the statements made in those paragraphs in Exhibit 2.
121. [121]
     In the last part of the cross-examination, Mr Templeton asked the respondent about medical ethics. He was still not prepared to accept that the respondent had a dependency on him which still persisted in April 2016. In my opinion, her dependency on him as a doctor, persisted after that relationship formally ended in May 2015, and he allowed that dependency to develop into a short intense affair commencing in January 2016 and persisting to April 2016 which involved passionate kissing including tongue kissing, expressions of love and intention to leave his wife; incidents where their bodies were pressed together whilst passionately kissing, and on at least two occasions (in the training shed where he was naked, and in her car on the second occasion at the Brisbane shops), where he had an erection, and clearly wanted to have sex with her as she did with him.
122. [122]
     His statements that there was no physical sexual intimacy and no touching or petting behaviour are wrong, and I reject his evidence in that regard. His attempt to characterise these incidents as “analogous to teenage kissing”, amounts to an unconvincing attempt by him to distance himself from what he clearly knew was wrong and unethical given the context in which the relationship had developed.
123. [123]
     He agreed with Mr Templeton that the affair did violate doctor/patient boundaries. He expressed regret to her for his actions, and any suffering she had experienced as a result of his boundary breaches.
124. [124]
     In his final written submission after the trial, Mr Green seeks to characterise the relationship (as he submits the Tribunal should find it to be), as not coming within the description of “a sexual… or inappropriate relationship”,^[62] or “sexual misconduct”,^[63] or “a sexual relationship with a former patient”.^[64] My factual findings deal largely with this submission.
125. [125]
     The Guidelines define “sexual misconduct” as including “a sexual relationship (which) describes the totality of the relationship between two people, when the relationship has some sexual element, including any sexual activity between the doctor and their patient”.
126. [126]
     Consistently with the Guidelines, the relevant jurisprudence over many years establishes:

     1. (a)
        the expression, “a sexual relationship” has a wider meaning descriptive of the totality of the relationship between two persons, which relationship has some sexual aspect;^[65] and
     2. (b)
        the nature and extent of intimate relationships between couples can be many and varied and do not need to include physical sexual intercourse to fall within the definition of a sexual relationship. However, it must include conscious degrees of mutuality between the couple. Each case will be determined on its own facts.^[66]
127. [127]
     My factual findings in relation to the nature of the relationship and the sexual features of it indicate that such features fall squarely within the meaning of a “sexual relationship” as those terms are used in the Code of Conduct and the  Guidelines.
128. [128]
     In my opinion, the respondent’s conduct at trial: making concessions after hearing CE give her evidence and be extensively cross-examined, making further concessions during his evidence, and retracting portions of previously affirmed affidavits, and his apology to her right at the end of his cross-examination, suggest to me that he is basically a decent man who has struggled to accept the inappropriateness of his behaviour and his failure to prevent it escalating as it did, and importantly his failure to recognise and deal with the obvious emotional dependence that CE developed and maintained on to him during the whole of the relevant period.

The relative vulnerability argument

129. [129]
     Earlier in these reasons, I referred to the respondent’s neurological disorder. Mr Green expressed the argument in his opening submission thus, “vulnerability or otherwise must be assessed having regard to the other party and the interactions of (sic) communications between them.”
130. [130]
     This argument was made before the trial, and a number of the factual bases relied upon have fallen away in light of the Tribunal’s assessment of the evidence.
131. [131]
     In the respondent’s written submission dated 7 February 2022, Mr Green maintains the same argument on behalf of the respondent. He seems to imply that because CE was a qualified occupational therapist, had “established a successful business”, was undertaking a Master’s degree and subdividing real property, this somehow meant that she was not a vulnerable person throughout the relevant period (which I define as the period from 14 January 2013 to on or about 16 April 2016.
132. [132]
     As noted, the findings set out above are to the effect that the Tribunal rejects that proposition. As I have observed, there were times when her emotional fragility improved, but throughout the relevant period, her dependency and reliance on, and in the later period, her feelings for the respondent are well-established on the evidence. Her evidence before the Tribunal was that the business had been established by her husband and she did not carry it on after his death, and the subdivision of the land was to pay down debt. The Master’s degree commenced at a time when she was feeling less emotionally fragile after her eldest daughter had moved out of the house in March 2015.
133. [133]
     In his written submissions, Mr Green accepts, as he must, that the Code of Conduct and the Guidelines speak in terms of vulnerability of the patient and not of the doctor. If Mr Green is submitting that CE was not vulnerable at the time of the intensification of the relationship but the Tribunal finds that she was, her vulnerability has to be considered against the vulnerability of his client in terms of the development of what I have concluded was a sexual relationship, such that each bears responsibility (in the context of disciplinary proceedings), that submission should be rejected.
134. [134]
     In Re a Medical Practitioner,^[67] Dowsett J (there sitting as the Medical Assessment Tribunal) rejected a similar submission about “relative responsibility”. His Honour wrote:

It is desirable that I dispose of the question of relative responsibility for the development of the relationship as between the complainant and respondent. As I see it, for present purposes this question is of little relevance. The standard of conduct with which I am concerned is as much designed to protect the vulnerable patient from himself or herself as from the unwelcome advances of an amorous medical practitioner. The profession has long recognised that a patient may well be in a vulnerable position in which he or she is likely to develop a dependence upon or attachment to a caregiver. Therefore, it is not correct to seek to apportion blame as between the patient and the practitioner

135. [135]
     The factual findings referred to above, indicate that CE was not coerced into the sexual relationship with the respondent, nor was there any lack of consent, quite the contrary. She wanted to have a long-term relationship with the respondent, and its cessation led to a major downturn in her mental health.
136. [136]
     The cases cited in Mr Green’s final submission, in relation to this argument in my view do not assist his client. Health Care Complaints Commission v Kabir [2021] NSWCATOD 120 did not concern a boundary violation. It was concerned with a practitioner inappropriately prescribing to his partner who was herself a doctor. The passage relied upon by Mr Green concerned evidence of a forensic psychiatrist that the practitioner’s personality traits i.e. being submissive, left him vulnerable to acquiesce to his partner’s requests so that he prescribed to her. The Tribunal concluded that the practitioner’s conduct was at least partly as a result of his character trait. The Tribunal determined that the practitioners “…conduct in this regard was a type of conduct which is sufficiently serious to warrant suspension or cancellation of registration as a medical practitioner. Further, it was conduct arising from the character traits of Dr Kabir discussed by Mr Jones, which, in context, functioned as defects of character.” The proposition advanced on behalf of the respondent now draws no support from this decision.
137. [137]
     Again, the case of Health Care Complaints Commission v Peck [2021] NSWCATOD 88 at paragraph [75] does not assist the respondent in the circumstances of this case. The citation referred to at [75] in Mr Green’s submission from this authority states that the “vulnerability of the medical practitioner was taken into account”. Firstly, paragraph [75] of the reasons is simply a recitation of the respondent’s written submissions – it includes no finding or statement of principle. Secondly, that submission was not made in the context of addressing whether professional standards had been breached, but in mitigation of an admitted breach of professional standards. As the Tribunal concluded at paragraph [112], in setting out the reasons why it concluded that a prohibition order period of four years was appropriate:

4. (iv)
   The respondent himself has suffered a serious mental health illness and probably was suffering, to some extent, during the time he conducted an amorous and sexual relationship with patient A. While that cannot excuse the conduct, it is a matter to be considered when determining a prohibition period.

138. [138]
     The submissions made in the respondent’s final submission do not detract from the proposition that a vulnerability suffered by a practitioner, which impairs his or her judgement, may be relevant to moral culpability, and therefore sanction. However, so much is not relevant to the analysis of whether the practitioner’s conduct contravenes professional standards, and in particular the Code of Conduct and the Guidelines.
139. [139]
     The respondent relies upon a report of Debbie Anderson, a clinical neuropsychologist who reassessed him on 8 February 2021 and who has provided a report to the Tribunal dated 22 February 2021;^[68] although the relevance of her evidence in light of how the trial proceeded, is not made clear in the respondent’s final submissions.
140. [140]
     Ms Anderson gave evidence in person and was cross-examined by Mr Templeton. There are a number of factors in the subjective history provided to the psychologist by the respondent that are not borne out in the evidence e.g., that he “felt pressured by (CE) to leave his wife and commence a relationship with her”; and “there was no intimacy”.
141. [141]
     Ms Anderson had previously assessed the respondent’s neurological and cognitive functioning in 2011. Although this was not explored in her oral testimony, I infer that he is well aware that his condition is progressive, and that he is concerned to ensure that his impairment is not such as would adversely affect his ability to care for his patients. Relevantly, as a result of her recent assessment, Ms Anderson wrote in her report:^[69]

6.1 … I had previously conducted a neuropsychological assessment in June 2011, found superior intellect and well-preserved memory skills. There are some areas of mild relative weakness, but these were not suggestive of substantial problems.

6.2 Neuropsychological review on this occasion found no significant change in cognitive function over the intervening decade. There were some variations amongst the subtest, but this did not form a clear pattern of cognitive dysfunction. Thus, there is no evidence of a decline or that he has gone on to develop dementia or similar.

6.2 There is no evidence of significant change in cognitive function on this occasion, and there was no indication of cognitive impairment. In addition, he did not report symptoms suggestive of a psychological condition.

Dr Nixon did not exhibit cognitive impairment of a level that would interfere with the decision with decision-making or behavioural control.

142. [142]
     Her very guarded opinion expressed under the heading “implications of these results” at 6.4 of her report, to the effect that “it appears that they negatively impacted on his view of himself and combined with complex and unusual circumstances left him emotionally vulnerable;” must be read down in light of my factual findings set out above.
143. [143]
     From 2011, the respondent had conducted (and is still conducting) a very busy general practice. It can be accepted that his mother’s death in New Zealand on 22 September 2015 did cause him distress, however soon after (around 13 October 2015), and just prior to the trips to the overseas county, he set up the Facebook messenger account involving just he and CE, and there is nothing in those many messages to suggest a man who was in a vulnerable emotional state because of the death of his mother.
144. [144]
     The respondent gave evidence over many hours. It is clear to me that there are overt signs of his neurological condition e.g., affected gait, slight speech impediment; however, he impressed me as a highly intelligent person who, sadly, was trying to justify the unjustifiable. There is no doubt that he found the experience of giving evidence very stressful, as do most people, particularly when they make concessions contrary to their own sworn testimony, and contrary to other credible evidence.
145. [145]
     For the reasons expressed earlier and above I reject the relative vulnerability argument. CE became very dependent on, and attached to, the respondent throughout the relevant period, and this dependency continued after the cessation of the doctor/patient relationship. There is no evidence of coercion or lack of consent, however he was the experienced doctor who clearly knew that what he was doing in the early part of 2016 was inappropriate. The evidence of Ms Anderson merely confirms that his neurological condition had not deteriorated between 2011 and February 2020 and does not in any way support the arguments advanced on the respondent’s behalf by his Counsel.

Characterisation of the conduct

146. [146]
     The applicant has the responsibility of proving that the conduct identified in these reasons constitutes professional misconduct as defined in section 5 of the Health Practitioner Regulation National Law (Queensland) (National Law).
147. [147]
     I agree with the succinct summary of the way in which the relationship between the respondent and CE developed over the relevant period, as described by Mr Templeton:^[70]

… It morphed from a doctor/patient relationship, to a friendship, and then to a romantic affair which involves some physical sexual intimacy during which sexual intercourse was contemplated by both parties but did not ultimately occur.

148. [148]
     The starting point regarding professional standards is the Code of Conduct, which took effect in March 2014. Clause 8.2 of the Code of Conduct relevantly provides:

8.2 Professional boundaries

Professional boundaries are integral to a good doctor – patient relationship. They promote good care for patients and protect both parties. Good medical practice involves:

8.2.1  maintaining professional boundaries.

8.2.2  never using your professional position to establish or pursue a sexual, exploitative or other inappropriate relationship with anybody under a practitioner’s care; this includes those close to the patient, such as their carer, guarding, spouse or the parent of a child patient.

149. [149]
     Specific guidelines on sexual boundaries have been developed by the Board under the National Law.^[71]
150. [150]
     The respondent contends that the Guidelines are not applicable as there is no express allegation of sexual activity in the referral or affidavit. However, the guidelines are applicable, as a reference to “sexual relationships” and “sexual activity” embrace broader notions than acts of sexual intercourse or acts involving the genitalia; and in any event it is long established that engaging in a personal (non-sexual) relationship with a former patient may be inappropriate depending on the circumstances.
151. [151]
     The Guidelines relevantly provide:

2. Summary of these guidelines

Good medical practice relies on trust between doctors and patients and their family. It is always unethical and unprofessional for a doctor to breach this trust by entering into a sexual relationship with a patient, regardless of whether the patient has consented to the relationship. It may also be unethical and unprofessional for a doctor to enter into a sexual relationship with a former patient, and existing patients, carer or close relative of an existing patient, if this breaches the trust the patient placed in the doctor.

3. Understanding and defining sexual boundaries

…

Sexual misconduct includes:

1. (a)
   engaging in sexual activity with:

   1. a current patient regardless of whether the patient consented to the activity or not.
   2. a person who is closely related to a patient under the doctor’s care.
   3. a person formally under a doctor’s care.

…

4. a sexual relationship describes the totality of the relationship between two people, when the relationship has some sexual element, including any sexual activity between a doctor and their patient.

…

5. Sexual relationships with former patients

It may be unprofessional for a doctor to enter into a sexual relationship with a former patient, if this breaches the trust the patient placed in the doctor. When considering such allegations, the Board would take into account:

*the duration of care provided by the doctor; for example, if there had been long term emotional or psychological treatment provided.

*the level of vulnerability of the patient.

*the degree of dependence in the doctor-patient relationship.

*the time elapsed since the end of the professional relationship.

*the manner in which and reason why the professional relationship was terminated.

*the context in which the sexual relationship was established.

152. [152]
     The principles set out in the Code of Conduct and the Guidelines are well-established and draw on jurisprudence from professional disciplinary Tribunals such as this one developed over many years.
153. [153]
     The principles are most helpfully collated in Medical Board of Australia v Skehan [2011] VCAT 2424. As the Tribunal noted at [68], by reference to a 1999 “guide for medical practitioners” issued by the Board:

It is always wrong for a doctor to enter into a sexual or improper emotional relationship with a patient. It is also wrong to enter into a relationship with a former patient, or close a relative of a patient, if this breaches the trust the patient has placed in the doctor or otherwise disrupts the patient’s life….

154. [154]
     At [71], by reference to a Bulletin published by the Board in 2000, the Tribunal referred to a recently held conference in which an eminent speaker had discussed boundary violations and noted that they are not peculiar to the so-called “bad apples” of the profession. The Tribunal wrote:

That expert spoke of the “slippery slope” commencing with an innocent transgression then progression to sexual involvement with a patient or former patient. A number of important guidelines were provided so as to enable practitioners to maintain professional boundaries. Another speaker, a senior psychiatrist, provided a useful reminder that it is the patient who pays the doctor for a service, and it is the patient who allows the doctor privileged access to their bodies and personal feelings, not the reverse. It was noted that general practitioners and psychiatrists were at particular risk, and, by far, the most combination in trouble was the male doctor and female patient.

155. [155]
     The significance and importance of these principles was set out by Dowsett J (as His Honour then was) in Re a Medical Practitioner. Having assessed a number of relevant authorities at that time, His Honour extracted a number of themes running through the traditional approach to misconduct of this kind by medical practitioners. His Honour said at [12]:

12.It is professional misconduct to exploit a discontinued professional relationship. Thus, a medical practitioner should only commence or continue an association with the former patient if there can be no suggestion that he or she is exploiting a dependency created in the course of the professional relationship. 

156. [156]
     His Honour noted at [74]:

74. These helpful observations were particularly relied upon by the applicant. The Board correctly submitted, “the onus is, and must be, upon the doctor in such circumstances to appreciate the risks, guard against them, and resists such progression ‘from a professional doctor/patient relationship to a romantic relationship’”.

157. [157]
     At [77] His Honour said:

77. In our opinion there is no absolute rule that a general practitioner could not establish an emotional or intimate relationship with a former patient. The position would depend very much on the nature of the pre-existing professional relationship, its length, and the circumstances and timelines in which a later relationship developed.

158. [158]
     In the respondent’s final submission (at paragraph 38) (by reference to the general proposition advanced by Mr Green on his behalf that the evidence would establish a friendship with a former patient without sexual activity would not come within the guidelines), Mr Green submits:

It is noted that in circumstances where a doctor/patient relationship had ceased its therapeutic nature and devolved into a romantic relationship “it would be most unlikely that the respondent would be before the Tribunal”. This it is submitted, reflects the notion that where a therapeutic relationship has ceased, a continued friendship does not offend the relevant guidelines or codes.

159. [159]
     The findings of fact by the Tribunal disposes of this submission. In support of the proposition in quotation marks, Mr Green refers to Health Ombudsman v O'Reilly [2021] QCAT 362 at [15]. The remarks in O'Reilly do not make any suggestion that a “romantic relationship” would be most unlikely to see a practitioner before the Tribunal. The comments concerned “friendly contact” that was said to include catching up for dinner at the practice on Friday evenings while the practitioner worked. Secondly, the remarks cannot be understood as a general statement of principle. So much is inconsistent with the significant authority set out in the submissions which requires all of the circumstances (as set out in the Code and Guidelines and the authorities) to be considered. Rather the Tribunal’s remarks in that case concerned only the particular circumstances of that case.
160. [160]
     Skehan referred to earlier, involved a factual scenario that was more serious than the present but with similar features. In that case the patient and the doctor had entered into a mutually consensual intimate relationship after the cessation of the therapeutic relationship, however the respondent doctor was found to have breached a number of ethical duties, particularly in relation to his patient and former patient and her family. Relevantly to the present case the Tribunal noted at [230]:

We agree with the applicant’s submissions that… a doctor-patient relationship of the longevity and nature of that between (the respondent) and (his patient/ former patient) inevitably becomes imbued with a degree of intimacy and trust which almost inevitably renders progression by the doctor to a romantic relationship exploitative. The onus is, and must be, upon the doctor in such circumstances to appreciate the risks, guard against them and resist such progression.

161. [161]
     In Re a Psychologist [2009] TASSC 70, Blow J (as the Chief Justice then was) adopted the following observations of Commissioner Martin QC in a Practitioner v the Medical Board of Western Australia [2005] WASC 198:

[28] …A former patients’ interests are well capable of being inappropriately jeopardised if a medical practitioner in some way exploits the professional credibility established by a prior therapeutic relationship in order to pursue personal ends or objectives to the prejudice of the former patient. Moreover, it would be intolerable if a medical practitioner were able to cynically terminate an existing therapeutic or therapeutic relationship with an eye to the future, so as to pursue a personal objective with a patient, once the shackles of the professional relationships had been removed.

[29] A second general observation I make is that many of the disciplinary cases which have gone on further to be decided by courts, concern sexual relationships developed consensually as between a practitioner and a patient, or, as between a medical practitioner and a former patient. In those sexual relationship cases, there is an obvious concern that a patient’s interest may have been compromised arising out of the imbalance of power between the medical practitioner and the patient. The potential for the will of the patient in that situation to be unwittingly overborne as a result of undue influence, is great.

162. [162]
     At [60], his honour wrote:

…It is clear that the psychological consequences of the appellant’s relationship with the complainant and his attitude in relation to such consequences were relevant matters for the disciplinary committee and the Board to take into account when evaluating the appellant’s conduct and considering what disciplinary orders, if any, should be made.

163. [163]
     CE’s evidence as to some of the consequences to her of what she described as an affair with the respondent are set out in her trial affidavit. At [104] – [105] she stated:

104. Since my affair with David, I’ve struggled with self-loathing as I had participated in behaviour contrary to my personal values. I felt responsible and embarrassed for what happened, and initially wanted to protect David. I’ve since suffered from crippling depression, resulting in two admissions to [a mental health facility] in 2018, during which I received 12 sessions of electroconvulsive therapy. I have suffered problems associated with long-term antidepressant use, including weight gain and most recently chronic diarrhoea. I also have no interest in pursuing any type of new relationships (romantic or otherwise).

105. Additionally, because of David’s actions I have developed a generally poor opinion of medical practitioners; and consequently I struggle to attend my GP. I’m far more sensitive to how doctors act or behave, or find myself “triggered” if I see doctors behaving poorly. I found that my situation and what happened with David makes other people feel uncomfortable. Which means I often don’t get support from friends or healthcare professionals. For example, I have ended up in the emergency department a few times with chest pain and I’m usually asked about stress in my life. When I mention the ongoing OHO matter, I feel I’m judged as being a troublemaker.

164. [164]
     The comments of Blow J (as the Chief Justice then was), to the extent to which they are borne out in the Tribunals’ conclusions about the evidence, are apposite in the circumstances here.
165. [165]
     The matters to be considered are set out in 5 of the Guidelines which are set out above.^[72]
166. [166]
     I have addressed each of these considerations in my analysis of the evidence and findings of fact. The nature of the therapeutic relationship extended over two years; involving multiple personal face-to-face consultations, both for CE and also for her four children who were at the start, aged 11 to 17. The respondent provided a whole range of medical services, but primarily he provided grief counselling, counselling and emotional advice type services to her.
167. [167]
     The treating relationship commenced in the most distressing circumstances, which left CE highly vulnerable, particularly in the early stages of the relationship. For the reasons articulated above, that vulnerability persisted over the next two years.
168. [168]
     I am satisfied that the CE remained vulnerable and dependent upon the respondent throughout the relevant period. As noted earlier, her situation improved in 2015, as her emotional dependence on him and feelings for him intensified. This is apparent from the email communications with him in 2015.
169. [169]
     I agree with the applicant that following the end of the romantic relationship with the respondent in 2016, CE went into survival mode and was unable to study or progress the separation of the land title. It appeared to her new doctor at a Medical Centre on 30 March 2016 that she was depressed.^[73] It is evident from those records that her depression persisted for many months. These circumstances indicate that while CE’s emotional state did likely improve in 2015, she remained susceptible to emotional shock,  given her tenuous financial position, sole responsibility for children and minimal support network, she remained vulnerable throughout the relevant period.
170. [170]
     For the reasons articulated above, I am satisfied that the therapeutic relationship, that is the formal relationship of doctor/patient was brought to an end largely at the behest of the respondent. Again, by reference to my early analysis of the evidence, the dependence however continued as evidenced in the extraordinary volume of emails and other messages sent by CE to the respondent at his medical practice address.
171. [171]
     As to the time elapsed between the end of the therapeutic relationship and the commencement of the so-called “romantic” relationship, in this case, because of the ongoing exchange of emails as from 21 April 2015, it is difficult to determine an actual date.
172. [172]
     I agree with the applicant that the shoots of the affair between the respondent and CE had clearly begun to arise by the time of the trip to the overseas country in November 2015. As noted earlier during a conversation in the hotel at which they both stayed, the respondent told her that if they wanted to be neighbours, they could never be more than friends, and that his son had asked him if he was having an inappropriate relationship with CE.
173. [173]
     Throughout December 2015, the respondent and CE exchanged Facebook messages in their private chat on a daily basis. There seems to be general agreement that on a day shortly after Australia day, CE and the respondent discussed their feelings for each other, and told each other that they loved each other. By that time the romantic relationship had definitely commenced.
174. [174]
     I agree with the applicant’s submission that there was no real clear period between the end of the treating relationship and the commencement of the personal one. From April until at least August, professional boundaries were blurred and there was a duality to the relationship, as the respondent frankly admitted in cross-examination. Very shortly thereafter, from about November it was clear that the respondent was no longer CE’s Doctor. Soon after they took up the romantic affair.
175. [175]
     The doctor/patient relationship of the longevity in nature of that between the respondent and CE became imbued with a high degree of intimacy and trust, such that it rendered progression by the respondent to a romantic relationship with her exploitative. There was no clear intervening period for CE’s obvious and intense dependency to subside, thus permitting any personal relationship to exist on equal footing. The onus was on him to appreciate the risks, guard against them and resist such progression. On the contrary, by his actions, he fostered and encouraged that intimacy and trust and as a consequence the risk. In the circumstances the Tribunal finds that the respondent took advantage of her dependency created during the course of the treating relationship.
176. [176]
     For those reasons his conduct in engaging in a personal relationship with her, was inappropriate, amounted to a breach of professional boundaries, the Code of Conduct and the Guidelines as alleged in the FAR. As noted by Mr Templeton in his final submission, so much is consistent with the respondent’s own admission in cross-examination; that his affair with CE constituted a violation of doctor/patient boundaries and was inappropriate.

Was the conduct “professional misconduct”?

177. [177]
     As an alternative to dismissal of the referral, the respondent submits that at the very most his conduct can only be characterised as unsatisfactory professional performance. This submission cannot be accepted. The proved conduct set out above constitutes professional misconduct in that it is unprofessional conduct that amounts to conduct that is substantially below the standard reasonably expected of a medical practitioner of an equivalent level of training or experience.^[74]
178. [178]
     Consistently and unsurprisingly, in the light of the authorities referred to earlier, it is often been noted that “for a registered practitioner to maintain a sexual relationship with a patient or former patient has commonly been held to amount to professional misconduct.”^[75]
179. [179]
     Medical Board of Australia v Chiappalone [2014] QCAT 170 is another example of a decision where a relationship with a former patient was found to amount to professional misconduct. There the parties had been professionally acquainted for some years prior to the patient attending on the doctor on only three occasions (he was not her regular GP). The former patient was vulnerable because she had suffered depression and had problems with alcohol. Some six months after the last consultation, the former patient sent the doctor a text message asking him if he wanted to meet a friend of hers because they appeared to have common interests. The doctor ended up meeting with the former patient’s friend, although that relationship did not continue. Shortly thereafter after, the former patient of the doctor engaged in regular text messaging and telephone conversations. This quickly developed into a sexually intimate relationship involving sexual acts but not sexual intercourse. The sexual intimacy seems to have lasted for no more than two months. Despite the parties’ prior acquaintance, the treating relationship consisting of only three appointments, the fact that the doctor was not the patient’s regular GP, and the interval of some six months before any communication (and seven months before physical intimacy), the Tribunal concluded that the doctor had engaged in professional misconduct.^[76]
180. [180]
     The Tribunal recognises that because of the complete divergence in approach in the final submissions, the respondent in particular, may want to re-visit the issue of characterisation. Both parties will obviously wish to address the issue of sanction.
181. [181]
     The Tribunal orders that the referral be adjourned to a date to be fixed for further hearing.
182. [182]
     The Tribunal has had the opportunity to consider the written submissions by Mr Green dated 5^th June 2022, which were filed pursuant to a directions order made on the papers on the 18 May 2022, and arising out of the contents of [180] above. The Tribunal has also considered the short written submission filed on behalf of the applicant and in response to Mr Green’s supplementary submission. The Tribunal does not intend to alter its findings relating to characterisation as set out above. The issue of the seriousness of the conduct is a matter to be considered in relation to sanction.
183. [183]
     The Tribunal is satisfied to the requisite standard that the conduct proved amounts to professional misconduct as defined in section 5 of the National Law.