Health Ombudsman v Heath[2022] QCAT 30

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

Introduction

1. [1]
   This is a referral of a health service complaint against Richard John Heath (respondent), pursuant to sections 103(1)(a) and 104 of the Health Ombudsman Act 2013 (Qld) (HO Act), by the Director of Proceedings on behalf of the Health Ombudsman (applicant). The applicant alleges that the respondent has behaved in a way that constitutes professional misconduct and unsatisfactory professional performance and seeks orders by way of sanction.
2. [2]
   The parties agree as to the facts of the conduct the subject of the referral and its appropriate characterisation as professional misconduct and unsatisfactory professional performance, but differ as to the sanction that should be imposed upon the respondent.

Background

3. [3]
   The respondent is 63 years old, and was aged 53 to 60 years old at the time of the conduct the subject of the referral.
4. [4]
   The respondent was first granted medical registration on or around 10 January 1984 by the Medical Board of Victoria, and then on 20 October 1988 granted registration by the Medical Board of Australia (the Board). The respondent holds general registration as a medical practitioner in general practice pursuant to the Health Practitioner Regulation National Law (Queensland) (National Law).
5. [5]
   The respondent primarily worked within hospital settings until 1991. Since that time, he has practised in procedural general practice on the Sunshine Coast. He has worked as a medical educator for the Royal College of General Practitioners through universities in Queensland and Victoria.
6. [6]
   The respondent owns and operates Noosa Health Centres which comprise the Sunrise Beach and Mount Coolum Medical Centres. He also practises as a credentialled general practitioner anaesthetist at the Nambour Day Surgery.

Conduct

Allegation 1 – Failure to maintain professional boundaries

7. [7]
   Patient A first attended on the respondent as a patient in 2010. Between 2011 and 2018, Patient A continued to attend on the respondent at his Mount Coolum Medical Centre.
8. [8]
   Between approximately 2011 and December 2013, the respondent provided Patient A with treatment and medical services as her general practitioner, which included providing Patient A with prescriptions for medication and antenatal care and referral for obstetric care.
9. [9]
   During the period December 2013 to approximately 2018, the respondent continued to provide Patient A with occasional treatment and medical services, which included providing Patient A with prescriptions for medication and referrals for breast remodelling and breast augmentation.
10. [10]
    In approximately September 2015, the respondent employed Patient A as a receptionist working on a casual basis 1 to 2 days a week at the Mount Coolum Medical Centre. The respondent continued to provide occasional treatment to Patient A once she was an employee. This treatment was for minor medical issues only.
11. [11]
    During 2015 to 2016, the respondent’s marriage broke down and he developed a close friendship with Patient A.
12. [12]
    From February 2016, the respondent and Patient A became sexually intimate. There were four occasions of sexual intimacy during 2016 and 2017.
13. [13]
    The respondent continued to provide occasional treatment to Patient A once they had become sexually intimate. This treatment was for minor medical issues.
14. [14]
    Patient A continued to work at the Mount Coolum Medical Centre until March 2017.
15. [15]
    In late 2017, the respondent and Patient A made a mutual decision to end the sexually intimate aspect of their friendship.
16. [16]
    Between August 2017 and August 2018, Patient A again worked at the Mount Coolum Medical Centre on the occasional weekend as a registered nurse, and the respondent continued to provide occasional treatment to Patient A whilst she was an employee. This treatment was for minor medical issues only.
17. [17]
    The respondent was aware that Patient A had interpersonal familial difficulties with the father of her children.
18. [18]
    The respondent arranged for Patient A and her children to appear on his BUPA private health insurance between December 2017 and November 2018. This private health insurance was paid for by the respondent with no financial contribution from Patient A.
19. [19]
    In January 2018, the respondent purchased an investment property and offered the property for rent to Patient A. She rented the property from him between late March 2018 until at least 8 July 2019, and paid him $400 per week as rent.

Allegation 2 – Inappropriate medical treatment

20. [20]
    Prior to the evening of 29 April 2018, the respondent had never prescribed Patient A with any drugs of dependence, nor had he ever treated her for mental health symptoms.
21. [21]
    On the evening of 29 April 2018, Patient A contacted the respondent, stating that she was feeling stressed due to issues in her relationship with her children’s father. She requested that the respondent provide her with Lorazepam. The respondent contacted her by telephone and advised that he would drop around to see her and would bring a filled prescription for 5mg Diazepam with him. The respondent was aware that Patient A lived alone with her minor children.
22. [22]
    The respondent subsequently prescribed and filled a prescription for Diazepam 5mg with no repeats for Patient A, with directions to take 1-2 tablets, as required, per evening. The prescription pack contained 50 tablets, which is the standard pack size for Diazepam.
23. [23]
    The Respondent then attended Patient A’s residence and performed an assessment of Patient A, during which she reported that she was feeling okay but just needed to sleep. He formed the opinion that she was experiencing acute stress and anxiety but was not depressed. He then provided Patient A with the filled prescription pack of Diazepam containing 50 tablets, with instructions to take one (1) tablet only.
24. [24]
    The respondent did not make any clinical records of his attendance, assessment or treatment of Patient A and, after providing the tablets, he departed from her residence.
25. [25]
    Patient A subsequently overdosed on the Diazepam by consuming all 50 tablets.
26. [26]
    The respondent later returned to the residence as he felt “uneasy” when reflecting on Patient A’s uncharacteristically subdued presentation. He discovered Patient A in her bed unconscious. He then phoned the Queensland Ambulance Service, who attended the residence. Patient A was conveyed to hospital to be treated for the overdose, where she informed the hospital that she had intended “to kill herself”.
27. [27]
    The respondent provided appropriate clinical information to the Queensland Ambulance Service and the hospital to enable Patient A to receive appropriate treatment. He remained with Patient A’s minor children whilst she received treatment and until the children’s father was able to attend the property to care for them.

Characterisation of Conduct

28. [28]
    The parties jointly submit that the respondent’s conduct, with respect to Allegation 1, should be characterised as professional misconduct, as defined in limb (a) of the definition of “professional misconduct” in s 5 of the National Law:

unprofessional conduct by the practitioner that amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience.

29. [29]
    The respondent’s conduct is contrary to the relevant codes of conduct and sexual boundaries guidelines.^[1] Any sexual activity with a patient, including consensual activity and activity initiated by the patient, is a serious departure from professional standards. Such boundary violations have the potential to cause harm to vulnerable patients and place patients at risk of exploitation because of the inherent power imbalance in the doctor/patient relationship.^[2] A blurring of proper professional boundaries may compromise the practitioner’s objectivity and affect the quality of clinical care.^[3]
30. [30]
    The Tribunal readily accepts the submissions of the parties as to the appropriate characterisation of the respondent’s conduct. As regards Allegation 1, pursuant to section 107(2)(b)(iii) of the HO Act, the Tribunal decides that the respondent has behaved in a way that constitutes professional misconduct.
31. [31]
    The parties jointly submit that the respondent’s conduct, with respect to Allegation 2, should be characterised as unsatisfactory professional performance, as defined in s 5 of the National Law:

Unsatisfactory professional performance, of a registered health practitioner, means the knowledge, skill or judgment possessed, or care exercised by, the practitioner in the practice of the health profession in which the practitioner is registered is below the standard reasonably expected of a health practitioner of an equivalent level of training or experience.

32. [32]
    The applicant specifically disavowed any allegation that the prescription of Diazepam to Patient A was clinically inappropriate. The parties jointly submitted that the respondent’s conduct was unsatisfactory in that:

    1. (a)
       The respondent prescribed such treatment in circumstances where he had a significant history of a personal and sexual relationship with Patient A;
    2. (b)
       The respondent did not make any adequate clinical record of the treatment he provided that explained reasons for the decision to prescribe Diazepam and considered the risks of prescribing Diazepam to Patient A.
33. [33]
    The aspect of the respondent’s conduct in (a) above is properly to be regarded as an incidence of the boundary violation the subject of Allegation 1. Aspect (b) constitutes additional unsatisfactory professional performance.
34. [34]
    The Tribunal accepts the submissions of the parties as to the appropriate characterisation of the respondent’s conduct. As regards Allegation 2, pursuant to section 107(2)(b)(i) of the HO Act, the Tribunal decides that the respondent has behaved in a way that constitutes unsatisfactory professional performance.

Regulatory action

35. [35]
    On 1 May 2018, the Office of the Health Ombudsman (OHO) received a notification regarding the respondent’s conduct.
36. [36]
    On 14 September 2018, a decision was made by the Health Ombudsman to refer the matter to the Australian Health Practitioners Regulation Agency (AHPRA).
37. [37]
    The respondent was not asked to respond to the allegation until 1 March 2019. On 5 March 2019, the respondent, by letter from his lawyers to AHPRA, admitted the facts and seriousness of his conduct and accepted that the circumstances warranted conditions on his registration.
38. [38]
    On 7 March 2019, the Board decided to take “immediate” registration action and suspend the respondent’s registration.
39. [39]
    On 3 April 2019, AHPRA decided to refer the matter back to the OHO.
40. [40]
    The respondent filed an application for review of the Board’s decision to take immediate registration action in the Tribunal, but this application was subsequently withdrawn after the Board, on 3 June 2019, revoked the suspension and imposed conditions on the respondent’s registration including:

    1. (a)
       indirect supervision when practising as a medical practitioner;
    2. (b)
       a prohibition on self-prescribing;
    3. (c)
       a prohibition on prescribing for family, persons with whom the respondent was in an intimate relationship, and persons with whom he resided;
    4. (d)
       a prohibition on prescribing Schedule 8 medications;
    5. (e)
       restrictions in relation to the respondent’s prescribing of benzodiazepines; and
    6. (f)
       a requirement that the respondent keep an auditable register of all prescribing in his anaesthetic and general practice.
41. [41]
    The period of three months suspension was as a direct consequence of the conduct the subject of the referral. It is a most relevant consideration when considering sanction and, in particular, whether an order for suspension of the respondent’s registration is required to meet the protective purposes of sanction. The subsequent imposition of conditions did not preclude the respondent from practice and is of less significance in this regard.
42. [42]
    On or around 12 December 2019, the respondent voluntarily withdrew from medical practice for personal reasons.
43. [43]
    The respondent was subsequently subject to regulatory action by the Board by way of suspension of his registration until it was reinstated subject to conditions. Such action was taken because the respondent breached one of the conditions on his registration in October 2019. This period of suspension from, and subsequent restriction of, practice was not as a direct consequence of the conduct the subject of the referral but does have some limited significance when considering aspects of personal deterrence in determination of sanction.
44. [44]
    On 19 May 2020, the respondent was granted registration as a medical practitioner upon providing an undertaking to the Board requiring limited mentoring.
45. [45]
    The referral was filed in the Tribunal on 29 May 2020. The respondent filed his response on 22 July 2020, admitting the allegations but disputing some of the particulars. The applicant subsequently filed an amended referral and a further amended referral and, on 22 March 2021, the respondent filed a further amended response admitting all of the allegations and particulars in the further amended referral filed on 12 March 2021.

Sanction

46. [46]
    The purpose of disciplinary proceedings such as these is to protect the public, not punish the practitioner. As has been noted in many previous decisions, often citing Craig v Medical Board of South Australia,^[4] the imposition of a disciplinary sanction may serve one or all of the following purposes:

    1. (a)
       preventing practitioners who are unfit to practise from practising;
    2. (b)
       securing maintenance of professional standards;
    3. (c)
       assuring members of the public and the profession that appropriate standards are being maintained and that professional misconduct will not be tolerated;
    4. (d)
       bringing home to the practitioner the seriousness of their conduct;
    5. (e)
       deterring the practitioner from any future departures from appropriate standards;
    6. (f)
       deterring other members of the profession that might be minded to act in a similar way; and
    7. (g)
       imposing restrictions on the practitioner’s right to practise so as to ensure that the public is protected.
47. [47]
    Both parties submit that the respondent should be reprimanded. The respondent’s professional misconduct and unsatisfactory professional performance certainly deserves denunciation by the Tribunal.
48. [48]
    Pursuant to section 107(3)(a) of the HO Act, the Tribunal reprimands the respondent.
49. [49]
    A reprimand is not a trivial penalty and has the potential for serious adverse implications to a professional person.^[5] It is a public denunciation of the respondent’s conduct and a matter of public record. It will be recorded on the Register until such time as the Board considers it appropriate to remove it.^[6]
50. [50]
    The applicant submits that the Tribunal would also suspend the respondent’s registration for a period within the range of one to three months. The applicant points to the sexual relationship between the respondent and Patient A occurring over a substantial period of time. The applicant points to the substantial power imbalance between the respondent and Patient A, not only in the doctor/patient relationship but in the relationships of employer/employee and landlord/tenant, and Patient A benefitting from the largesse of the respondent by way of private health insurance. The applicant submits that an order of suspension is required to reflect the seriousness of the boundary violation and meet considerations of general deterrence, denunciation and protection of the reputation of the medical profession.
51. [51]
    The respondent submits that a reprimand sufficiently meets the protective purposes of sanction in all the circumstances of the matter and that an order of suspension would be unduly punitive. The respondent submits that the respondent’s conduct was not predatory, did not involve exploiting or grooming the respondent, and did not cause Patient A to suffer any harm, injury or inconvenience from the sexual, employment or financial relationship with the respondent. The respondent submits that the sexual relationship is properly regarded as one occurring primarily in the context of the employer/employee relationship rather than the doctor/patient relationship. The respondent points out that the sexual conduct took place sporadically, with only four ad hoc events over the course of twelve months.
52. [52]
    The respondent demonstrated insight and remorse by his prompt admissions during the course of the investigation and his co-operation during the Tribunal proceedings. The respondent completed education regarding professional boundaries. Colleagues speak very highly of him as a medical practitioner.
53. [53]
    Considerations of personal and general deterrence have already been addressed to a significant extent by the consequences already suffered by the respondent by regulatory action and consequent loss of income.
54. [54]
    The factor of delay is a mitigating factor in determination of sanction. The respondent was not asked to respond to the allegations until early March 2019 and did so very promptly by way of admissions. It appears that referrals to and from AHPRA and the OHO led to delay in the investigation of the matter and the referral was not filed until May 2020. Through no fault of the parties the matter was not heard until late July 2021 and a further substantial period of time has passed before making of orders and delivery of these reasons. Such delay in resolution of proceedings does, as the applicant frankly acknowledges, have the potential to cause unnecessary stress and disadvantage to health practitioners affected by such delay, and is a significant mitigating factor in determining sanction.^[7]
55. [55]
    I have had regard to the comparative cases the subject of submissions by the parties: Health Care Complaints Commission v McCroary,^[8] Medical Board of Australia v Nandam,^[9] Health Ombudsman v Stephens,^[10] and Health Ombudsman v Whittaker.^[11]
56. [56]
    Whether or not an order of suspension is required is a matter upon which reasonable minds may differ and, indeed, there was a division of opinion in the views expressed by the assessors. I was greatly assisted by the opinions of the assessors in this matter; however, ultimately, I alone constitute the Tribunal and determine the orders to be made.
57. [57]
    The matter is a finely balanced one. Not without some hesitation, I have concluded that, in the circumstances of this matter, particularly having regard to the consequences already suffered by the respondent as a result of his conduct, an order for suspension is not required to properly meet the protective purposes of sanction. Having regard to the consequences already suffered by the respondent as a result of his conduct, a reprimand is sufficient to denounce the respondent’s professional misconduct and unsatisfactory professional performance and meet considerations of personal and general deterrence, maintenance of professional standards and public confidence in the medical profession.